We covered the Court of Appeal’s judgment in the case of Sheehan v State Rail Authority; Wicks v State Rail Authority  NSWCA 261 in our March 2010 edition. In that decision, the Court of Appeal dismissed the appeal made by the policemen, and made a determination that there was no need to decide whether a duty of care was owed by the State Rail Authority (State Rail) under section 30 of the Civil Liability Act 2002 (NSW) (the Act) to the two officers who came upon the aftermath of the Waterfall train disaster on 31 January 2003. Nor did the Court of Appeal find it necessary to decide whether the policemen suffered a recognisable psychiatric injury of which State Rail was the cause.
On 16 June 2010, the High Court of Australia disagreed on both points (Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 267 ALR 23), set aside the Court of Appeal’s decision and remitted the matter once more in order that a determination be made on these two issues.
On 31 January 2003, a passenger train operated by State Rail came off the tracks at high speed near Waterfall Station south of Sydney. Serving members of the NSW Police Force and the appellants in the High Court, Sheehan and Wicks, were among the first to arrive at the scene. All involved in the litigation classed the respondents as “rescuers”, and they were confronted with gruesome scenes of death and injury at the site of the derailment. As a result, they claimed to have suffered a recognisable psychiatric injury and claimed compensation.
A number of issues were to be decided at first instance (the police officers chose to have separate hearings on the same matter), most importantly:
- Did the defendant owe the plaintiff, a rescuer, a duty of care?
- Did the plaintiff witness, at the scene, victims of the derailment, being killed, injured or put in peril, in accordance with section 30(2) of the Act?
- Did the plaintiff’s attendance at the derailment cause him to suffer a recognised psychiatric illness? If so, what was the nature of that illness?
- What was the plaintiff’s entitlement to damages?
At first instance, Associate Justice Malpass of the Supreme Court of NSW concluded that liability was not established and directed that judgment be entered in favour of State Rail. The Court of Appeal dismissed the appeal made by the police officers. In both instances, the judgments stated that in order to consider whether State Rail had any liability, the plaintiffs first had to prove that they “witnessed, at the scene, the victim being killed, injured or put in peril” within the meaning of section 30(2).
In a joint judgment, the High Court disagreed and said that State Rail’s liability should not be decided by section 30(2) in isolation, but rather within the context of the whole of Part 3 of the Act.
Their Honours first looked at section 27 and identified that the appellants claimed pure mental harm, which is defined as “mental harm other than consequential harm”. Following from this, section 28(1) provides that Part 3 (except section 29), applies “to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise”. Therefore, by operation of section 28, the High Court found that Part 3 applied to the appellants.
Next, their Honours looked briefly to section 31, which provides that “there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness”.
Following this, the High Court looked at section 32, which defines the duty of care required in relation to mental harm. It identifies positively when a duty of care not to cause mental harm should be found to exist. It was decided that because section 32 defines and controls what would otherwise be a common law duty of care, this must be considered first, before considering any limitation to an injured person’s entitlement to damages under section 30(2).
Further, their Honours looked at foreseeability under section 32 in light of the case of Tame v New South Wales (2002) 211 CLR 317 and determined that foreseeability is the central determinant of duty of care. However, contrary to Tame, a duty of care under section 32 is not to be found 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.
Their Honours focussed on three important features of section 32, namely:
- that “sudden shock” (section 32(2)(a)) is only one of several circumstances which bear upon whether a defendant ought to have foreseen the psychiatric illness,
- that “witnessing, at the scene, a person being killed, injured or put in peril”, is also only one of the circumstances that bear upon foreseeability, but is not a sufficient condition for finding or negating a duty of care, and
- that the focus of section 32 is “mental harm” and a “psychiatric illness”, not simply mental or nervous shock, and this has a different meaning to “sudden shock”, which is directly connected to an event or cause.
Section 30 (claims for pure mental harm) will therefore be engaged only when a relevant duty of care is found to exist under section 32, and it is correct to begin by determining when a defendant (here, State Rail) owed the relevant duty of care.
Section 30 was not considered by the lower courts (nor did they consider whether a psychiatric illness existed under section 31) and, consequently, the High Court found that the case had been approached in the wrong way. Their Honours did not see fit to decide the issues in dispute, instead remitting the case to the Court of Appeal to make findings on the following:
- whether State Rail owed the appellants a duty of care to take reasonable care not to cause them mental harm (that is, whether it was reasonably foreseeable that a rescuer attending the scene of an accident of that kind might suffer recognisable psychiatric injury as a result of experiences had at the scene), and
- did the appellants’ attendance at the scene cause psychiatric injury? (That is, did the “shock” suffered follow from their horrific experiences, and arise in connection with witnessing persons being killed, injured or put in peril at the scene. It must be noted that the High Court determined that “being put in peril” must be construed in accordance with its ordinary meaning, and could occur – as in this case – in the aftermath of the catastrophic event).
We now await the Court of Appeal’s final decision on the above issues