Judgment date: 31 August 2009
Sheehan v SRA; Wicks v SRA  NSWCA 261
NSW Court of Appeal1
- A person who witnesses the aftermath of an accident is generally excluded from claiming compensation for mental harm by s 30(2)(a) of the Civil Liability Act 2005.
- However, depending on the facts of the case, a person who witnesses the aftermath of an accident may claim compensation for mental harm if the exposure to peril remains ongoing.
The NSW Court of Appeal handed down its decision in Sheehan v SRA and Wicks v SRA on 31 August 2009.
On 31 January 2003, Senior Constable Sheehan and Senior Constable Wicks were the first police officers to arrive at the scene of a serious train derailment near Waterfall Railway Station.
When arriving at the accident scene the officers were confronted with two derailed train carriages and a number of deceased and injured survivors. Both police officers undertook an assessment of the scene and provided emergency first aid assistance.
Both plaintiffs brought proceedings in negligence against State Rail seeking damages for psychiatric injury.
The trial proceedings discussed the operation of s 30(2)(a) and s 32(2)(b) of the Civil Liability Act 2002 (NSW) (Act). These sections deal with mental harm and apply to motor vehicle accidents by virtue of s 3B(2)(e) of the Act.
Section 30(2)(a) of the 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
Section 32(2)(b) of the Act provides:
For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril
In the trial proceedings before Associate Justice Malpass, both officers gave graphic accounts of what they had witnessed at the accident scene, including human body parts, bodies which had been "torn apart" and survivors with extremely serious injuries in shock and requiring immediate assistance. Evidence was also given that a number of power lines were down which hampered the rescue process. However, no evidence was led at trial as to whether or not the power lines were live or not.
The issues to be determined by Associate Justice Malpass were as follows:
- Did State Rail owe each of the plaintiffs a duty of care?
- Did each plaintiff witness, at the scene, victims of a derailment being killed, injured or put in peril?
- Did each plaintiff's attendance at the derailment cause him to suffer a recognisable psychiatric illness? If so, what is the nature of that illness?
Associate Justice Malpass concluded that neither of the plaintiffs "witnessed at the scene the victim being killed, injured or put in peril" as required by s 30(2)(a) of the Act. His Honour concluded that as the circumstances did not satisfy this requirement, he did not need to determine the third question.
The plaintiffs appealed the trial decision and the primary issue for the Court of Appeal to consider was whether or not the plaintiffs satisfied s 30(2)(a) and s 32(2)(b) of the Act, so as to be entitled to damages for psychiatric injury.
Court of Appeal
The main issue to be considered by the Court of Appeal was as follows:
- Whether or not the plaintiffs fell within the statutory class of persons who are entitled to recover damages for pure mental harm pursuant to s 30(2)(a).
The Court of Appeal ultimately upheld the decision of the trial Judge, concluding that the plaintiffs were not a class of people entitled to compensation for pure mental harm as envisaged by the statute.
Beazley JA and Giles JA
Beazley JA and Giles JA held that the plaintiffs did not fall within the statutory class of persons contemplated by the Act who were entitled to recover damages for pure mental harm. Justice Beazley concluded that the legislature had drawn a boundary line between those class of people who witness death, injury and peril during the course of the incident, and those class of people who witness the aftermath.
Beazley JA stated at paragraph 76:
"The derailment was what put the victims in peril by the respondent's omission. When the appellants arrived the derailment, as the incident which killed, injured and put in peril the passengers in the train, was over, there was no consequential event such as the falling of the stanchion knocked loose in the collision. The process of victims being put in peril had ended, and the appellants witnessed what some cases and the Ipp Report refer to as the aftermath."
Justice Beazley concluded that, had the legislature intended that a class of people in the position of the plaintiffs were to be entitled to compensation for pure mental harm, the legislation would have made that clear. Justice Beazley stated that s 30 of the Act specifically provides for a limitation on the recovery of damages for pure mental harm by restricting the class of persons to those who fall within s 30(2)(a) or s 30(2)(b).
Her Honour concluded that the proper interpretation of s 30 of the Act called for a person to witness persons being killed injured or put in peril at the scene, therefore the language of the statute contemplated an immediate incident. The omission of the word "aftermath" from the statute was significant and as the plaintiffs came to the scene after the derailment occurred, they could not fall within the scope of those class of persons entitled to damages for pure mental harm.
The proper construction of s 32 of the Act was not discussed, given her Honour's findings as to s 30.
Of interest, Justice Beazley stated that the construction of the word "being" could contemplate a situation where something could occur during the rescue process that would injure or kill a person. Therefore, a situation could arise where an incident extends beyond the time when impact occurs.
The above concept was further expanded upon by Justice McColl, who concluded that s 30(2)(a) conferred rights upon a class of people who even though they did not witness the principal causal event, subsequently witnessed, at the scene, the victim being killed, injured or put in peril.
Justice McColl held that whilst s 30 restricts the class of persons who can receive damages for pure mental harm, the section must not be read too narrowly. At paragraph 144, her Honour held:
"First, s 30 does not prescribe a temporal relationship between the events the class of potential claimants must have witnessed and the event that triggered them. It does not in terms require the plaintiff to be at the scene when the relevant "act or omission" occurs, only when the victim is "being killed, injured or put in peril". Nor does it refer to any "accident" per se, but, rather, to the "scene" of the event relevant to establish entitlement to make a claim."
Justice McColl concluded that the plaintiffs must have had to witness something involving an actual state of peril in that there was a possibility that that person may be killed or injured. Her Honour anticipated that such a situation may arise where following a collision of two motor vehicles, in which the victim is neither killed nor injured at the moment of impact, remains in peril during the rescue as there is a danger that the motor vehicle will burst into flames.
Justice McColl stated that the Trial Judge erred in concluding that the plaintiffs' claims failed at the outset merely because they were not present when the derailment occurred.
Justice McColl stated at paragraph 150:
"In my view, s 30(2)(a) can be read in the manner for which the appellants contend. It is not necessary for a person seeking to satisfy s 30(2)(a) to have been present at the time of the principal causal event, in this case the derailment. The question is whether the putative plaintiff witnesses the events described in s 30(2)(a) falls for objective factual determination in each case."
Justice McColl rejected the plaintiffs' argument that following the derailment, the victims' conditions were deteriorating during the rescue operation which placed them in "peril". Her Honour stated that when the plaintiffs arrived on the scene, they did not witness the victims being exposed to a danger which was a "sequaele of the derailment" meaning that some aspect of the derailment or environment posed a danger. Furthermore, her Honour noted that no evidence was led by the plaintiffs that they were concerned that the power lines posed any risk to the victims
The major point of interest in Sheehan v SRA; Wicks v SRA is the Court of Appeal's statutory interpretation of s 30 of the Act. The Court of Appeal confirmed that in order for a class of persons to receive damages for pure mental harm, they must have "witnessed at the scene the victim being killed, injured or put in peril".
The statute must be read restrictively, to the extent that those class of persons who come upon an accident scene in the aftermath, are not entitled to compensation by operation of s 30(2)(a).
However, the Court of Appeal cautioned litigants not to apply the statute too narrowly. The Court held that the section can contemplate a situation where a class of persons is entitled to damages for pure mental harm if they come upon the scene after the initial impact has occurred, but where there remains ongoing peril.
It is important for claims managers to be aware that the provisions relating to pure mental harm under the Civil Liability Act apply to motor vehicle accidents. Furthermore, the example of the motor vehicle collision used by Justice McColl is pertinent, as it would be a plausible scenario that a person may come upon an accident scene following the initial collision and witness trapped drivers remaining in peril by reason of the surrounding environment.
In assessing claims for pure mental harm, claims managers must be alive to the relevant sections of the Act and to the class of persons that the legislation contemplates. Claims managers need to ensure that claims for pure mental harm are not denied on the basis that the plaintiff was not at the scene of the immediate collision, however each case must be carefully assessed on the facts.
1. Beazley, Giles, McColl JJ
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