Australia: High Court Revisits Whether Rescuers Can Recover Damages For Pure Mental Harm

Curwoods Case Note: Wicks v SRA; Sheehan v SRA [2010] HCA 22
Last Updated: 27 June 2010
Article by Olivia Dinkha

Judgment date: 16 June 2010, Wicks v SRA; Sheehan v SRA [2010] HCA 22. High Court1

In Brief

  • In applying the provisions relating to the recovery of damages for mental harm contained in Pt 3 of the Civil Liability Act 2002 it must first be determined whether the defendant owed the plaintiff a relevant duty of care.
  • Section 32 of the Civil Liability Act mirrors the High Court's decision in Tame v New South Wales2 insofar as foreseeability is the central determinant in relation to duty of care. However, unlike Tame, s 32 stipulates that duty of care 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.
  • The High Court has given the expression "being put in peril" contained in s 30(2) of the Civil Liability Act a wider meaning than that which was ascribed by the NSW Court of Appeal.

Background

The plaintiffs, Senior Constable Sheehan and Senior Constable Wicks, attended to the rescue of passengers at the train derailment at Waterfall in NSW on 31 January 2003. They both witnessed dead and severely maimed victims of the crash.

The plaintiffs brought proceedings against the defendant for damages for psychiatric injury alleged to have been suffered due to the negligence of the defendant in failing, inter alia, to ensure the "deadman's" safety device was operating and was designed so as to operate in the event of the incapacitation of the driver.

Section 30 of the Civil Liability Act provides as follows:

"30 Limitation on Recovery for Pure Mental Harm Arising from Shock

(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.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:
close member of the family of a victim means:
(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half brother or half sister, or stepbrother or stepsister of the victim.
spouse or partner means:
(a) a husband or wife, or
(b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984 ,
but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify."


Section 32 of Civil Liability Act provides as follows:


(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."

Supreme Court Decision

Proceedings were commenced by the plaintiffs in the Supreme Court of NSW and it was agreed that issues of liability would be tried separately from issues of damages.

Malpass AsJ found that liability was not established and entered judgment in favour of the defendant in respect of both claims. In doing so, his Honour approached the liability of the defendant by treating s 30(2) as a determinative issue.

His Honour found against the plaintiffs on the basis that neither of them satisfied the requirements of s 30(2)(a) as they were not present at the scene whilst passengers of the train were "killed, injured or put in peril".

Court of Appeal

The plaintiffs appealed and submitted that for the purposes of s 30(2)(a) the passengers of the wreckage were in continuing peril of physical and mental injury during the rescue operation and remained so until their evacuation.

The defendant submitted that as s 30(2)(a) requires that a person witness a person being "killed, injured or put in peril at the scene", a plaintiff must observe the causal event which led to the person being "killed, injured or put in peril" in order to recover damages for pure mental harm.

As in the court below, the Court of Appeal approached the liability of the defendant by treating s 30(2) as a determinative issue. The Court of Appeal found against the plaintiffs on the basis that they could not establish that they witnessed a victim or victims of the derailment "being killed, injured or put in peril".

High Court

In a unanimous judgment the High Court held that instead of beginning the inquiry by determining the s 30(2)(a) issue and whether or not the plaintiffs witnessed somebody being "killed, injured or put in peril", the inquiry must be approached by determining whether the defendant owed the plaintiffs a relevant duty of care.

In adopting this approach the High Court held that s 30(2) is an exception to what would otherwise be the entitlement of the plaintiff as it is framed in negative terms. The Court held that:

"To being inquiries by asking whether s 30(2)(a) of the Civil Liability Act is engaged, without first deciding whether State Rail owed a duty to each appellant to take reasonable care not to cause him psychiatric injury, was to omit consideration of an important anterior question. To examine the content of the limitation on liability provided by s 30 without a proper understanding of the provisions affecting duty runs the risk of reading the limitation divorced from its statutory context."

The High Court further held s 32 contains a necessary condition for the establishment of a duty of care, this being that 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. In determining whether or not a defendant ought to have foreseen that a person might suffer a recognised psychiatric illness, s 32 identifies four kinds of circumstances which regard should be had:

  • Whether the mental harm was caused by sudden shock
  • Whether the plaintiff witnessed, at the scene, a person being killed injured or put in peril.
  • The nature of the relationship between the plaintiff and any person killed, injured or put in peril.
  • Whether or not there was a pre-existing relationship between the plaintiff and the defendant.

The circumstances above are considerations which are relevant to the issue of foreseeability, however they are not conditions precedent to the finding that the defendant owed a duty to take reasonable care not to cause mental harm. As s 32 defines or controls what otherwise would be a duty of care arising at common law, it must be considered before the exception or limitation upon entitlement to damages imposed by s 30(2).

Where a relevant duty of care is found to exist s 30 will only be engaged in the following circumstances: where there is a claim for "pure mental harm"; where the claim is alleged to arise "wholly or party from mental or nervous shock"; and where the claim is alleged to arise from shock in connection with another person "being killed, injured or put in peril" as a result of the defendant's act or omission.

After laying down the foundation for the correct application of Part 3, the High Court began by examining whether the defendant owed the plaintiffs a duty of care. The Court of Appeal declined to decide whether the defendant owed the plaintiffs a duty of care and although it was open for the High Court to determine this issue, it was remitted for consideration by the Court of Appeal.

Assuming that the defendant did owe the plaintiffs a duty of care the Court then considered whether s 30(2) was engaged by determining whether the claims arose "wholly or partly from mental or nervous shock in connection with another person...beingThe High Court held that the expression "being...put in peril" must be afforded its ordinary meaning which is as follows: killed, injured or put in peril" as a result of the defendant's negligence.

The thrust of the defendant's submissions centred on the argument that in order to recover damages a plaintiff must have observed, at the scene, an event unfolding which included, perhaps culminated, in another person's death, injury or being put in peril. Furthermore the defendant submitted that to satisfy s 30(2)(a) a plaintiff must demonstrate that the psychiatric injury complained of was occasioned by observation of what was happening to a particular victim.

"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."

The High Court held that the survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Accordingly, the plaintiffs witnessed, at the scene, victims of the accident being put in peril as a result of the defendant's negligence.

The High Court also rejected the defendant's argument that the combined effect of s 30(1) and s 30(2) requires that a plaintiff demonstrate the psychiatric injury complained of was occasioned by what was happening to a particular victim. It was held that it would be unworkable to require a precise connection between an alleged psychiatric injury and what happened to a particular victim and that:

"...reference in s 30(1) to 'another person (the victim)' should be read as 'another person or persons (as the case requires)'. The reference to 'victim' in s 30(2)(a) is to be read as a reference to one or more of those persons. In a mass casualty...s 30(2)(a) is satisfied where there was a witnessing at the scene of one or more persons being killed, injured or put in peril, without any need for further attribution of part or all of the alleged injury to one or more specific deaths."

As no findings were made by the Supreme Court or Court of Appeal as to whether a duty of care existed and as to whether the plaintiffs suffered a recognised psychiatric injury as a result of the defendant's negligence, both matters were remitted to the Court of Appeal for adjudication as to whether those issues could be decided by that Court or whether the matters would have to be remitted for retrial.

Implications

In applying Pt 3 of the Civil Liability Act the issue of whether a duty of care is owed must first be established. Foreseeability is the primary factor in determining whether a duty of care is owed.

The provisions relating to recovery of damages for mental harm contained in Part 3 of the Civil Liability Act also apply to claims brought under the Motor Accident Compensation Act 1999. The decision is therefore very pertinent to the assessment of motor accident claims where it is very likely that a person may come upon an accident scene following an initial collision.

It is important that both public liability and CTP claims managers be aware that liability in respect of claims for pure mental harm cannot be denied simply because a claimant was not present at the initial accident. The High Court has declined to give the phrase "being...put in peril" a more restrictive meaning than its ordinary definition. In doing so the High Court has opened the door to the recovery of damages to persons who attend to the rescue of people injured in an accident after the event giving rise to the accident has occurred.

1. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

2. (2002) 211 CLR 317

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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