The High Court of Australia recently considered the entitlement of New South Wales police rescue workers to recover damages for mental or nervous shock under the Civil Liability Act 2002 (NSW) (the Civil Liability Act). The two cases of Wicks and Sheehan v State Rail Authority of New South Wales (2010) HCA22 overturned the decision of the New South Wales Court of Appeal and each matter was remitted to the Court of Appeal for further consideration and possible re-trial.
The claims of both Wicks and Sheehan arose out of the derailment of a passenger train near Waterfall station, south of Sydney on 31 January 2003 in which seven of the almost 50 passengers on the train died and many others were injured, some very seriously. Wicks and Sheehan were among the first to arrive at the scene. They forced their way into badly damaged carriages where they found some passengers obviously dead and others trapped, seriously injured and very distressed.
Each of Wicks and Sheehan claimed that as a result of being present at the crash site and witnessing the scene each has suffered psychological and psychiatric injuries, post traumatic stress syndrome, nervous shock and major depressive disorders.
CIVIL LIABILITY ACT 2002 (NSW)
Section 30(2) of the Civil Liability Act provides:
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.
The principal issue at trial and on appeal was whether Wicks and Sheehan had witnessed a victim or victims of the derailment 'being killed, injured or put in peril'. At first instance and on appeal it was found that they did not.
However, the High Court decision goes beyond this issue and examined the legislative framework dealing with compensation for mental harm.
HIGH COURT DECISION
In a unanimous decision of the seven High Court judges, the court noted it was important that the duty of care as prescribed by section 32 be considered before the limitation imposed by section 30(2) is considered. This issue was remitted to the Court of Appeal for further consideration.
The High Court examined the framework imposed by Part 3 of the Civil Liability Act - entitled 'Mental harm', defined in section 27 to mean 'impairment of a person's mental condition'. The court noted that under section 27 there is a distinction made between 'consequential mental harm', being 'mental harm that is a consequence of a personal injury of any other kind' and 'pure mental harm', being that other than consequential mental harm. Wicks and Sheehan's claims were for damages for pure mental harm - and under section 31 damages are only payable for pure mental harm if the harm consists of a recognised psychiatric illness.
Section 32 deals with the duty of care in relation to mental harm and section 32 (2) sets out a number of considerations in the circumstances of the case, including whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril.
The court considered that the claim of each of Wicks and Sheehan could be said to be a claim arising wholly or partly from a series of mental or nervous shocks rather than from one isolated incident.
Finally, the High Court justices considered that the words 'being ... put in peril' should be given an ordinary meaning. 'A person is put in peril when put at risk; the person remains in peril ... until the person ceases to be at risk.'
The High Court took the view that the survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Accordingly Wicks and Sheehan had witnessed victims of the accident being put in peril as a result of the negligence of State Rail. They rejected the submission by State Rail that neither Wicks nor Sheehan had witnessed a victim or victims being killed, injured or put in peril.
There was no need to link psychiatric injury to any particular victim in a scene where there were mass casualties of the kind experienced in this derailment.
The judgment provides a useful analysis of the operation of the Civil Liability Act in relation to nervous shock claims dealing with the legislative framework, the duty of care, the definition of 'shock' and as discussed above, the meaning of 'being killed, injured or put in peril'. The decision itself does not determine the entitlement to compensation, as these matters have been referred back to the New South Wales Supreme Court for determination.
DLA Phillips Fox represents the State Rail Authority in this litigation.
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