Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales  HCA 22
The High Court has held in an unanimous judgment by all seven members that rescuers who did not witness a train derailment, but who witnessed the aftermath, were not prevented from pursuing damages for mental harm by the limitations set out in s30(2) of the New South Wales Civil Liability Act.
On 31 January 2003, a four carriage passenger train left the tracks at high speed near Waterfall station, south of Sydney. Seven of the 50 passengers died. Many others were injured, some very seriously.
Two police officers, Mr Wicks and Mr Sheehan, were among the first to arrive at the scene, and were confronted with death, injury and the wreckage of the train. They forced their way into the damaged carriages and did their best to relieve the suffering of the survivors and get them to safety.
The State Rail Authority ('SRA') admitted the accident happened as a result of its negligence.
Mr Wicks and Mr Sheehan sued SRA alleging that as a result of being present at the crash site and witnessing the aftermath, each suffered psychiatric injuries.
Pure mental harm
Pure mental harm is the expression used to refer to a recognised psychiatric illness which is neither caused or contributed to by, or related to, a physical injury suffered by the person concerned.
At common law, a defendant owes a plaintiff a duty to take reasonable care to avoid the plaintiff from suffering pure mental harm which is reasonably foreseeable that a person of normal fortitude might suffer in the circumstances: Tame v New South Wales and Annetts v Australian Stations Pty Limited  HCA 35.
Relevant factors, which are not preconditions to a duty existing, but which are to be considered, include:
- Whether the mental harm was suffered as the result of a sudden shock
- Whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath with his or her own unaided senses
- The nature of the relationship between the plaintiff and any person killed, injured or put in peril
- Whether there was a pre-existing relationship between the plaintiff and the defendant.
In New South Wales, the Civil Liability Act 2002 (NSW) limits the circumstances in which a plaintiff may recover damages for pure mental harm. Section 30(2) provides:
'30 Limitation on recovery for pure mental harm arising from shock
(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
(b) The plaintiff is a close member of the family of the victim.'
Trial and Court of Appeal
At first instance and on appeal it was held that the requirements of s30(2) were not satisfied, and the police officers were not entitled to recover damages, because:
- Whilst the police officers witnessed the aftermath, they did not witness any victim of the derailment 'being killed, injured or put in peril'
- Neither of the police officers were family members of any of the victims.
The High Court held that before consideration can be given to s30(2) it must first be determined whether SRA owed to the police officers the relevant duty of care, and remitted this question of law to the Court of Appeal to decide.
Overturning the Court of Appeal decision, the High Court also held that, if the relevant duty of care was owed, then s30(2)(a) was satisfied, and would not prevent the police officers from recovering damages, because:
- Whilst the event of another person being killed, injured or put in peril must have been happening while the plaintiff witnessed it, such an event may take place over an extended period. This was such a case, at least so far regarding victims being injured or put in peril. The consequences of the derailment took time to play out. The perils to which the survivors were subjected did not end when the carriages came to rest
- It may be inferred that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages
- It may be inferred that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene, and that as they were being removed from the train, at least some of the passengers were still being injured
- If either inference is drawn, then the police officers witnessed, at the scene, victims of the accident 'being injured'
- The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. The police officers therefore witnessed victims 'being put in peril'
- The reference to 'victim' is to be read as a reference to one or more victims. In a mass casualty there is no need to attribute part or all of the plaintiff's mental harm to what happened to a particular victim.
The High Court further held that the claim by each police officer arose wholly or partly from a series of mental or nervous shocks, and that it would be wrong to confine the 'shock' that each police officer suffered to what he perceived on first arriving at the scene, as the sudden and disturbing impressions upon the minds and feelings of each police officer necessarily continued as each took in more of the scene, and set about his tasks.
Whilst the High Court held that s30(2)(a) did not apply to facts of this case, there will be circumstances where the limitations in s30(2)(a) will apply to prevent a plaintiff from recovering damages. If all of the passengers on the train were killed when the train derailed and were all already dead before the police officers arrived at the scene, then the High Court's decision may have been different.
It is significant that the High Court has recognised that there are circumstances in which a rescuer may recover damages from witnessing a victim of an accident suffer psychiatric injuries, even if the victim has not been physically injured. Recovery of damages for mental harm on this basis has not been tested in the courts.
The High Court noted that foreseeability is the central determinant of a duty of care and framed the question to be decided by the Court of Appeal as follows:
- Was it reasonably foreseeable that, at a train accident of the kind that might result from SRA's negligence (in which there might be many serious casualties and much destruction of property), sights of the kind a rescuer might see, sounds of the kind a rescuer might hear, and tasks of the kind a rescuer might have to undertake to try to ease the suffering of others and take them to safety, would be, in combination, such as might cause a person of normal fortitude to develop a recognised psychiatric illness?
If it is decided that the relevant duty of care was owed, then in order to recover damages, the police officers will still need to establish that they each, as a result of exposure to the derailment, suffered a recognised psychiatric illness, which in Mr Sheehan's case is in dispute.
The Court of Appeal has directed that there be a mediation and that if the claims are not resolved at mediation, then there be a retrial in the Supreme Court.
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.