In Wicks and Sheehan v SRA [2010] HCA 10 the High Court has given the latest word on liability to rescuers for psychiatric illness cause by their exposure to horrific incidents.

Rescuers are exposed to many horrific events, people dead and dying in many horrible circumstances often, if not usually, caused by someone’s negligence. The law of negligence does not, however, allow unlimited recovery by people affected by an accident. The law has, for some time, grappled with the question of how far liability for ‘nervous shock’ should extend. Can one recover damages for seeing an accident? What about seeing an accident on TV? We might accept that a parent who sees their child killed should be allowed to recover, but what of the person who is simply told of that event some time later? The position of rescuers has been problematic (see my article, ‘Rescuers and Nervous Shock’ (1999) 73 Australian Law Journal, 132-138), we expect them to turn out to these jobs and pay them to do it, we expect if not require a certain degree of resilience but we have to accept that being exposed to sights that most of use never see can have genuine, long term effects.

What happened
One shocking event was the Waterfall train disaster on 31 January 2003. Constables Sheehan and Wicks, members of the NSW Police, were on duty at that time. The High Court of Australia described what happened as follows:

In response to a radio message, Mr Wicks and Mr Sheehan were among the first to arrive at the scene, soon after the accident had happened. What confronted them was death, injury and the wreckage of the train. Because the overhead electrical cables had been torn down, and were lying across the wreckage, it was anything but clear whether it was safe to go close to the wreckage.

Some of those on board had been thrown out of the train. Many remained in the wreckage. Mr Wicks and Mr Sheehan each forced his way into damaged carriages. Some passengers were so badly injured that they were obviously dead. Some passengers were trapped, evidently seriously injured, and very distressed.

Mr Wicks and Mr Sheehan each did his best to relieve the suffering of the survivors and to get them to a place of safety. As further emergency workers arrived at the scene, Mr Wicks and Mr Sheehan each continued his rescue efforts and, later, undertook other tasks assigned at the scene. Each remained at the scene for a considerable time – Mr Wicks until about 4.00 pm; Mr Sheehan until about 2.00 pm. ([2]-[4]).

Both officers alleged that, as a result of what they say and did, they suffered a recognised psychiatric injury. There was no real dispute between the parties that Senior Constable Wicks had suffered such an illness or injury. Whether Constable Sheehan had suffered a recognised psychiatric injury was, however, a matter of dispute. ([14]).

Both officers sued the State Rail Authority of NSW for damages caused by the Authority’s negligence in the manner in which it operated the railway and the particular train. The Authority’s negligence was admitted. What was in issue was whether or not the Authority owed the police rescuers a duty not to expose them to the sort of sights and sounds that would lead to them developing a recognised psychiatric illness. The trial judge found against the officers who appealed to the NSW Court of Appeal (Sheehan and Wicks v SRA [2009] NSWCA 261). The Court of Appeal rejected their appeal, also finding in favour of the Rail Authority.

Civil Liability Act 2002 (NSW)
The critical issue in the case was the interpretation of sections 30 and 32 of the Civil Liability Act 2002 (NSW). Relevantly, section 30 says:

(1) This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm 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 says:

(1) A person ( “the defendant”) does not owe a duty of care to another person ( “the plaintiff”) to take care not to cause the plaintiff mental harm 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 were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

The decision at trial and in the Court of Appeal
In the latest edition of my book, Emergency Law (The Federation Press, 3rd ed, 2010, pp261-264), I described the outcome in the NSW Court of Appeal as follows:

The Court of Appeal upheld the trial judge’s decision that the officers did not witness the victims “at the scene … being killed, injured or put in peril …” The Court found that the intention behind the legislation was to limit the class of persons that could recover from mental shock to those that saw the very accident happen. The officers attended to the aftermath of the accident but did not see the accident occur and therefore were excluded from the class of possible claimants. It was held that it was the derailment that put the victims in peril and caused their injuries and death so

When the appellants arrived the derailment, as the incident which killed, injured and put in peril passengers in the train, was over; there was no consequential event such as the falling of the stanchion knocked loose in the collision. The process of victims being put in peril had ended, and the appellants witnessed what some cases … refer to as the aftermath. ([76] (Beazley JA, with whom Giles JA agreed).

That is a very narrow interpretation. It was arguable (and was argued) that the incident was not over and that the passengers continued to be ‘in peril’ and at risk of being killed by their injuries, or injured in the course of their rescue. The Court was not without sympathy to the plight of the rescuers but they had to give effect to the words of the Act as passed by Parliament and they found it was Parliament’s intention that the right to recover was limited to those that observed the very incident or accident.

McColl JA took a broader view. She said

Examples can readily be brought to mind in which an accident may occur, for example the collision of motor vehicles, in which the victim is neither killed nor injured at the moment of impact but, because of the circumstances of the collision, is “being … put in peril” until rescue because of the danger of the motor vehicle exploding. Should rescue attempts fail and the victim be killed or injured in an explosion after the immediate impact, those present would witness the victim “being killed, or injured…” An example more immediately relevant to the derailment in this case, would be if one of the carriages containing passengers had been left teetering on the edge of a cliff so that when the rescuers arrived they observed passengers “being … put in peril” if the carriage plunged over the cliff. Or … if victims in one carriage were “being … put in peril” because another carriage might crash onto them. ([145]).

She concluded that the Act did not require that the plaintiff had to “have been present at the time of the principal causal event, in this case the derailment.” Rather a finding that the plaintiff witnessed the people being killed or put in peril will depend on the particular facts of each case. ([150]). She held that the trial judge was wrong when he found that the plaintiff police officers could not recover because they “were not present when the derailment occurred” ([155]). That finding gave little comfort to the injured police as she still found that the police had to observe the injured being killed or put in peril and that did not happen in this case.

The concern about the power lines was, on the evidence, concern that the rescuers felt for their own safety, not the safety of those trapped in the train. Further

… evidence that the victims’ conditions may deteriorate did not constitute them “being put in peril” … They had been injured and, like all in that position, required expeditious medical treatment. But they were not exposed to a danger which was a sequelae of the derailment in the sense that some aspect of the derailed train and/or the surrounding environment posed a danger. While a deterioration in their condition was a continuation of their original injury the evidence did not objectively demonstrate that they were imminently exposed to further injury ([163]).

Accordingly McColl JA found that a rescuer may be able to recover if they came upon an accident after it had initially happened, but only if there was something directly due to the accident that continued to cause peril, such as a fire at the scene or a falling structure that had been damaged by the accident. The fact that there are injured people there who are at risk of dying if not rescued is not the sort of peril that was intended by the legislation. Notwithstanding McColl JA’s disagreement on the interpretation of the Act, she agreed with Beazley JA that the particular plaintiffs could not recover.

The case goes to the High Court of Australia
Sheehan and Wicks took their case to the High Court of Australia that set aside the decision of the Court of Appeal, and gave an explanation of the meaning and effect of these sections. The High Court reminded us that for an action in negligence to succeed, a plaintiff had to show that there was a duty of care and then a breach of that duty. In this case the SRA had conceded that it had breached its duty (if the duty existed) so the question to be decided is, in the circumstances, did the SRA owe a duty to rescuers not to expose them to events that could foreseeably cause them to suffer a psychiatric illness?

Civil Liability Act 2002 (NSW) s 30
The SRA had relied on s 30 to argue that they were not liable unless the plaintiffs witnessed people being killed, injured or put in peril. The High Court said that was a misreading of the section.

Section 30(1) says when the section applies and s 30(2) explains that if the section applies, then the plaintiff gets no damages. The section only applies if the defendant would otherwise be liable to the plaintiff. The leading case in this area is Tame v NSW. In that case the judges held ([12] and [29] (Gleeson CJ); [89] [90] (McHugh J); [201] (Gummow and Kirby JJ); [275] (Hayne J)) that “… the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable ….”

That looks like s 32 which says there is no duty

… 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 were not taken.

To put that another way, s 30 doesn’t determine when or if the defendant is liable. Section 30 only applies if the defendant would, otherwise be liable, and it is a limitation or exception to the liability that would otherwise exist.

Civil Liability Act 2002 (NSW) s 32
Section 32 does talk about when a duty of care is owed. It says, critically, that a defendant does not owe a plaintiff a duty to avoid causing psychiatric injured duty of care “… 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 were not taken.” The section does not say when a duty of care is owed, but when it is not.

The matters listed in subsection 2 are factors to be taken into account in determining whether or not the circumstances of the case would give rise to a duty of care. They are not an exclusive and in fact the section doesn’t say what is to happen if any or all of the matters listed in s 32(2) apply, or don’t apply. There may well be other relevant circumstances that can and should be considered before deciding whether or not “a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness”.

The correct process
The High Court said that the correct process was

1. To determine if there was a duty of care, and this required consideration of whether or not it was foreseeable “that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.” That is the effect of both the decision in Tame v NSW and the Civil Liability Act 2002 (NSW) s 32. The factors listed in s 32(2) are neither necessary nor sufficient conditions (that is the plaintiff doesn’t have to show that one of them applies; and even if one does apply, it does not follow that the duty of care will be established).

2. If the court finds that a duty of care does exist, then it has to decide whether s 30 applies to deny the plaintiff damages.

The problem in this case is that the trial judge and the Court of Appeal decided the second issue, without answering the first. To do this, said the High Court, was to “omit consideration of an important … question’ and meant that the other judges had read s 30 ‘divorced from its statutory context’ [15], and this was an error.

Because the trial judge and the Court of Appeal had made a mistake in their interpretation of the law, the appeal was upheld but this, unfortunately, is not the end of the matter. The Hight Court has sent the matter back to the NSW Court of Appeal to reconsider the case and decide whether, in light of s 32, a duty of care was owed before considering whether or not s 30 would apply to deny the plaintiff’s their damages. The Court of Appeal may well return the case to the trial judge to decide those issues and also other issues that have not yet been dealt with including whether or not the officers have a recognised psychiatric illness and whether or not it was caused by this event.

Section 30(2)(a)
The Court did provide some guidance for the lower courts on the meaning of s 30(2)(a) and what is meant by witnessing a person being killed, injured or put in peril. The High Court rejected the idea that the rescuers had to actually see the accident and that the risk of people being killed, injured or put in peril ended when the train carriages came to rest.

Although it was no longer possible to see people ‘being’ killed once they are dead, the officers certainly saw people being put in peril by the power lines and the dangers that they were exposed to in the course of being rescued. Death (or dying) ,being put in peril and being injured can occur over time, not always in an instant and whether one considers the risk to the passengers physical or mental health, they were ‘being injured’ during the time that Sheehan and Wicks were on scene and the officers ‘witnessed’ that. [48].

When the officers arrived those still in the carriages, those rquireing urgent or even non-urgent assistance remained ‘in peril’. Being ‘put in peril’ as used in section 30(2) is not limited to an immediate time but extends from the time of the accident until the victim is ‘… rescued by being taken to a place of safety’ [51].

Finally the Court said there was no need for the plaintiffs to show their psychiatric injury was casued because of what they observed with respect to a particular victim. In a mass casualty situation there is no need to show that it was observing a particular persons injury that overwhelmed the plaintiff’s senses, rather the phrases ‘another person’ in s 30(1) and the ‘victim’ in s 30(2)(a) should be read to include the plural, that is another person or persons and victim or victims [54].

Result
The result in this case should provide some solace for rescuers as the High Court has given a much more ‘common sense’ interpretation of the idea of witnessing ‘at the scene, a person being killed, injured or put in peril’ (s 30(2)(a)). The fact that the rescuer did not see the accident occur will not be a barrier to recovery if they attended upon the accident and observed people still at risk of further injury (in peril) or being injured including being injured by their own exposure to the traumatic scene.

The case will provide some comfort to Sheehan and Wicks by leaving open their claim for damages, however final resolution is still a long way off, as the matter has to go back to the Court of Appeal, and possibly back to a trial judge to finally determine whether or not “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 were not taken” (s 32(1)).

The High Court has determined that the plaintiffs did witness, ‘at the scene, the victim being killed, injured or put in peril’ but that will only serve to allow them to recover damages if the answer to the first question is ‘yes’.
Given the matter has to go back to a lower court, there is also the risk of further appeals from the final decisions of those courts.

[Note references in [square brackets] are to the paragraph numbers in the judgements].