On 16 June 2010, the High Court unanimously reversed the NSW
Court of Appeal's finding that two former police officers, who
were among the first to attend the scene of the Waterfall train
crash disaster in 2003, were prevented form bringing claims for
pure mental harm or nervous shock. Mr Wicks and Mr Sheehan did not
observe the actual train crash but were quickly at the scene and
observed death, injury and wreckage. They spent many hours rescuing
and assisting the injured, observed bodies and body parts, as well
as the torn overhead electrical cables which may have still been a
source of danger. Both developed post traumatic stress disorder and
were medically discharged from the force in 2004. Their claims for
damages were dismissed at trial and by the Court of Appeal on the
basis that the police rescuers had not observed the train crash
itself or the passengers being actually killed or injured.
Section 30(2)(a) of the Civil Liability Act 2002 (NSW)
(the Act) prevents a plaintiff from recovering
damages for pure mental harm, that is, harm not consequential upon
physical injury, 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 of the Act states that a duty of care
is not owed 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 was not
taken. Similar provisions are found in the legislation of all other
states, except Qld and NT. These legislative provisions resulted
from Tame v NSW; Annetts v Australian Stations Pty Ltd
 HCA (the Annetts Case), where the High
Court held that whether a duty to avoid recognisable psychiatric
injury existed depended on whether the risk of injury was
reasonably foreseeable. The old common law requirements of sudden
shock, direct perception and normal fortitude were no longer
prerequisites. In the Annetts Case, the parents of a 16 year old
jackaroo, who died in the outback after his vehicle became bogged,
successfully claimed damages from their son's employer when
they developed psychiatric illness after being informed of his
The High Court in Wicks and Sheehan stated
that, in part, section 32 of the Act reflects the common law
identified in Tame and that sudden shock and witnessing a
person being killed or injured are not necessary prerequisites to
finding a duty to take reasonable care to prevent mental harm.
Assuming a duty not to cause mental harm was owed by the State
Rail Authority to the police rescuers (a matter not decided by the
High Court at the request of the parties), whether section 30(2)
was engaged turns on whether the police "witnessed, at the
scene, the victim being killed, injured or put in peril". The
High Court held that the event which caused shock did not finish
when the train came to rest as a twisted collection of carriages.
The consequences of the derailment took time. It can be inferred
that some passengers who suffered physical injury suffered further
injury as they were removed from the wreckage and that the process
of suffering injury (for those who did so) was not over by the time
the police arrived. Further, the survivors remained in peril until
they were rescued and taken to a place of safety. Accordingly, Mr
Wicks and Mr Sheehan did witness victims being injured and put in
peril as required by the Act.
The submission of the State Rail Authority that a plaintiff must
observe what was happening to a particular victim, as opposed to
many victims, was also rejected.
This decision should serve as a warning to all liability
insurers and insureds holding liability policies that where an
event necessitates the rescue of injured/trapped persons over a
period of time that the capacity of that situation to cause mental
harm to rescuers/witnesses is not necessarily limited to the moment
in time in which the event occurs. Rather, it appears that the
court must also assess the aftermath of an event in order to
determine the period during which the victim(s) were
"killed injured or put in peril".
Whether the State Rail Authority owed rescuers such as Mr Wicks
and Mr Sheehan a duty of care and whether the police had suffered a
recognised psychiatric injury were remitted to the Court of Appeal.
We will report on the outcome of that remission in due course.
Wicks v State Rail Authority of New South Wales; Sheehan v
State Rail Authority of NSW (2010) 267 ALR 23
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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