On 16 June 2010, the High Court unanimously reversed the NSW Court of Appeal's finding that two former police officers, who were among the first to attend the scene of the Waterfall train crash disaster in 2003, were prevented form bringing claims for pure mental harm or nervous shock. Mr Wicks and Mr Sheehan did not observe the actual train crash but were quickly at the scene and observed death, injury and wreckage. They spent many hours rescuing and assisting the injured, observed bodies and body parts, as well as the torn overhead electrical cables which may have still been a source of danger. Both developed post traumatic stress disorder and were medically discharged from the force in 2004. Their claims for damages were dismissed at trial and by the Court of Appeal on the basis that the police rescuers had not observed the train crash itself or the passengers being actually killed or injured.
Section 30(2)(a) of the Civil Liability Act 2002 (NSW) (the Act) prevents a plaintiff from recovering damages for pure mental harm, that is, harm not consequential upon physical injury, unless "(a) the plaintiff witnessed, at the scene, the victim being killed injured or put in peril, or (b) the plaintiff is a close member of the family of the victim." Section 32 of the Act states that a duty of care is not owed unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken. Similar provisions are found in the legislation of all other states, except Qld and NT. These legislative provisions resulted from Tame v NSW; Annetts v Australian Stations Pty Ltd [2002] HCA (the Annetts Case), where the High Court held that whether a duty to avoid recognisable psychiatric injury existed depended on whether the risk of injury was reasonably foreseeable. The old common law requirements of sudden shock, direct perception and normal fortitude were no longer prerequisites. In the Annetts Case, the parents of a 16 year old jackaroo, who died in the outback after his vehicle became bogged, successfully claimed damages from their son's employer when they developed psychiatric illness after being informed of his death.
The High Court in Wicks and Sheehan stated that, in part, section 32 of the Act reflects the common law identified in Tame and that sudden shock and witnessing a person being killed or injured are not necessary prerequisites to finding a duty to take reasonable care to prevent mental harm.
Assuming a duty not to cause mental harm was owed by the State Rail Authority to the police rescuers (a matter not decided by the High Court at the request of the parties), whether section 30(2) was engaged turns on whether the police "witnessed, at the scene, the victim being killed, injured or put in peril". The High Court held that the event which caused shock did not finish when the train came to rest as a twisted collection of carriages. The consequences of the derailment took time. It can be inferred that some passengers who suffered physical injury suffered further injury as they were removed from the wreckage and that the process of suffering injury (for those who did so) was not over by the time the police arrived. Further, the survivors remained in peril until they were rescued and taken to a place of safety. Accordingly, Mr Wicks and Mr Sheehan did witness victims being injured and put in peril as required by the Act.
The submission of the State Rail Authority that a plaintiff must observe what was happening to a particular victim, as opposed to many victims, was also rejected.
This decision should serve as a warning to all liability insurers and insureds holding liability policies that where an event necessitates the rescue of injured/trapped persons over a period of time that the capacity of that situation to cause mental harm to rescuers/witnesses is not necessarily limited to the moment in time in which the event occurs. Rather, it appears that the court must also assess the aftermath of an event in order to determine the period during which the victim(s) were "killed injured or put in peril".
Whether the State Rail Authority owed rescuers such as Mr Wicks and Mr Sheehan a duty of care and whether the police had suffered a recognised psychiatric injury were remitted to the Court of Appeal. We will report on the outcome of that remission in due course.
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of NSW (2010) 267 ALR 23
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