Australia: Psychiatric Injury Claims: the NSW Court of Appeal Draws a Line in the Sand

Public law report
Last Updated: 6 April 2010
Article by Kelly Douglas

Two NSW Police officers were recently denied compensation for psychiatric injuries alleged to have been sustained during the Waterfall train derailment rescue operation. In Sheehan v State Rail Authority; Wicks v State Rail Authority [2009] NSWCA 261, the NSW Court of Appeal held that the plaintiffs had failed to satisfy section 30(2)(a) of the Civil Liability Act 2002 (NSW) (Act) because they had not viewed or witnessed persons "being killed, injured or put in peril" at the scene of the derailment. Although all three appeal judges dismissed the appeal, McColl JA adopted a different interpretation of section 30(2)(a) to that adopted by Beazley JA and Giles JA in their joint judgment.


On 31 January 2003, a CityRail train derailed at Waterfall, killing seven people and injuring many more.

Officers Wicks and Sheehan were amongst the first on the scene to provide emergency first aid. They claimed damages from the State Rail Authority (State Rail) arising out of State Rail's alleged negligence in failing (among other things) to ensure that the train's "deadman" safety device was operating, or that it was designed to operate in the event of driver incapacity. The officers had witnessed deceased persons, dismembered bodies and people with serious injuries.

State Rail accepted it owed a duty of care to the train's passengers, but denied that it owed such a duty to the officers. It argued that it was not reasonably foreseeable that the officers would suffer psychiatric harm in the circumstances.

To be eligible for damages for psychiatric injury, sections 30(2)(a) and 32(2)(b) of the Act require that a claimant must directly witness or observe, at the scene of an accident, a causal event whereby another person is being killed, injured or put in peril. In a nutshell, section 32 sets out the duty of care for mental harm, and section 30 covers the limitation on recovery for pure mental harm arising from shock. The appeal judgment dealt only with section 30(2)(a), as their Honours did not consider it necessary to consider whether State Rail owed a duty of care to the officers.

At first instance, Associate Justice Malpass rejected the officers' claims and found that, although they had witnessed a traumatic event, they had not directly witnessed persons being killed, injured or put in peril. On appeal, the officers argued that his Honour had failed to answer the primary question of whether State Rail owed each of them a duty of care.

In the appeal judgment, Beazley JA (with whom Giles JA agreed) declined to answer this question and held that sections 30(2)(a) and 32(2)(b) do not extend to persons (including those assisting in the rescue process) who come upon the scene after an incident in which a person is "killed, injured or put in peril". McColl JA, however, determined that it was not necessary for a person to have been present at the time of the principal causal event. In McColl JA's view, satisfying section 30(2)(a) is a matter for factual determination on a case by case basis. Nevertheless, the appeal was dismissed by all three judges.


Beazley JA and Giles JA considered the dissenting judgment of Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police; White v Chief Constable of South Yorkshire Police [1999] 1 All ER , which was advanced by the officers in support of their appeal. Their Honours, however, stated that in this area of the law, boundary lines must be drawn when interpreting the law and adopted a narrow approach to section 30(2)(a), commenting as follows:

" New South Wales, however, the legislature has drawn the boundary line at those who witnessed death, injury and peril as it happened during the course of the incident and not as part of the aftermath".

Beazley JA considered the "Review of the Law of Negligence Final Report (Chairman the Hon Justice David Ipp) September 2002" (Report) when interpreting section 30(2)(a). The Report gave specific consideration to the duty to take care to avoid causing pure mental harm, and stated (at 138, 9.12) that the law has said:

"...this duty was owed only to persons who were physically near to the scene of the 'shocking' events at the time they occurred, or who witnessed their 'immediate aftermath'".

Despite the Report's specific mention of the aftermath of an incident, her Honour found that section 30(2)(a) specifies a strict, closed class of persons who are entitled to claim damages provided a duty of care is owed and a cause of action is established. In Beazley JA's view, that class did not include those who witness the aftermath, but instead, only:

  • any person who "witnessed, at the scene, the victim being killed, injured or put in peril" (section 30(2)(a)), or
  • a "close member" of a victim's family (section 30(2)(b)).

Counsel for the officers argued that section 30(2)(a) had been satisfied, despite the fact that the officers did not see the actual derailment. Drawing on Blaxter v Commonwealth (2008) Aust Torts Reports 181-948 and Metcalfe v Commonwealth [2008] VSCA 23, it was submitted that the officers witnessed persons being killed, injured or put in peril by or during the rescue process, which fell within the phrase "witnessed, at the scene, the victim being killed, injured or put in peril".

Beazley JA rejected this submission and held that recovery be limited to the very strictest interpretation of the statute.

McColl JA observed that, based on Beazley JA's interpretation of section 30(2), rescuers will never be entitled to recover damages for mental harm if they arrive at the scene of an accident after the principal and initial causal event.

McColl JA also referred to the Report, but instead referred to its discussion of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. As noted in the Report at 9.12, the decision in Tame appeared to establish the "fundamental proposition" that:

"reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care [and] will be owed to the plaintiff only if it was foreseen that a person of 'normal fortitude' might suffer mental harm in the circumstances of the case if care was not taken."

McColl JA agreed that section 30(2)(a) should be read restrictively, but not so narrowly as to exclude those who have genuine psychiatric injury after attending the scene of an accident following the initial causal event. Nevertheless, McColl JA found that the officers had not provided sufficient evidence in this instance to prove that they observed victims of the derailment being "put in peril" whilst they were on the scene as rescuers, and she dismissed the appeal.


The upshot of this decision is that section 30(2)(a) is to be interpreted narrowly, and unless a person actually sees an event happen they will not be able to make a claim for damages for psychiatric injury.

On 12 February 2010, the High Court granted the officers special leave to appeal from the decision of the Court of Appeal.

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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