In late January 2003, a passenger train operated by State Rail (the respondent) derailed at high speed near Waterfall Station, south of Sydney. Of the almost 50 people on board, seven died and many were injured.
David Wicks and Phillip Sheehan (the appellants) were amongst the first police officers to attend the scene. Avoiding powerlines that had fallen across the wreckage, Mr Wicks and Mr Sheehan forced their way into the carriages to rescue of the surviving passengers.
As a result of the events, Mr Wicks and Mr Sheehan each alleged to have sustained psychological and psychiatric injuries, post-traumatic stress syndrome, nervous shock and depression.
Key points for consideration
- Did State Rail owe the appellants a relevant duty of care?
- Did Mr Wicks and Mr Sheehan witness victims of the derailment being “killed, injured or put in peril” per section 30(2) of the Civil Liability Act 2002 (NSW)?
- If the appellants suffered a recognised psychiatric illness arising from pure mental harm of which the negligence of State Rail was the cause, would State Rail be liable?
In an examination of Part 3 of the Civil Liability Act 2002 (NSW), the High Court of Australia has extended the duty of care owed by a state transport authority to cover the psychological impact on rescuers attending the scene of an accident.
While the High Court made only recommendations to the New South Wales Court of Appeal for further examination, this judgement extends the duty of care owed to rescuers beyond the moment an accident occurs into the resulting period of rescue in regards pure mental harm. Operators should now consider the foreseeability of psychological injuries resulting from the rescue of those involved.
Duty of care
Recognising their attendance at the scene as ‘rescuers’, this determination was resolved in favour of the appellants. As the negligence of State Rail was admitted, the court turned on the reasonable foreseeability that a rescuer attending an accident of this kind may suffer a recognised psychiatric injury as a result of his or her experiences at the scene. Such experiences may include the sights, sounds and tasks of the kind a rescuer may endure during the operation.
Crucial to the Court’s reasoning was that no singular shocking event was necessary to determine the issue of foreseeability.
To establish the extent of the duty of care owed by State Rail, the court examined Part 3 of the Civil Liability Act 2002 (NSW) (“CLA”), with emphasis on section 32. The section provides generally that a defendant does not owe a duty of care to prevent mental harm unless it was foreseeable that a recognised psychiatric illness would occur if reasonable care were not taken. The section provides circumstances in which mental harm may occur.
The question of duty of care is a question of law (Vairy v Wyong Shire Council (2005) 223 CLR 422) with foreseeability at its root. The Court looked to the common law of negligence in relation to psychiatric injury in Tame v New South Wales (2002) 211 CLR 317. It was held in Tame that the central question was whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. Such a finding is consistent with s 32, which assumes that foreseeability is the central determinant of duty of care.
Killed, injured or put in peril
The period over which the general class of person witnessed those “being killed, injured or put in peril” (s 30 CLA) extended beyond the “instant” that the events were said to take place.
Recognising that the death and injury of passengers extended into the rescue period, the time for witnessing the section 30 requirement was not limited to the moment of derailment. Passengers were suffering further physical and psychiatric injuries such as were exacerbated by the rescue. Indeed, the scene itself remained perilous for survivors.
Where the perils of the passengers on board the train did not end when the carriages came to a rest, their injury and peril was said to be continuing so as to satisfy s 30(2)(a). In the Court’s own words:
“A person is put in peril when put at risk; the person remains in peril (is “being put in peril”) until the person ceases to be at risk”.
In a further meaningful step, psychiatric injury is not only occasioned by observation of a particular victim. The Court broadened the meaning of “another person (the victim)” to read “another person or persons (as the case requires)”.
Interpreting Part 3 of the Civil Liability Act in this way, the Court was satisfied that Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of State Rail.
However, as findings of duty of care and whether the appellants suffered a recognised psychiatric injury of which the negligence of State Rail was a cause are yet to be determined by the lower courts, the liability of State Rail remains undetermined.