At about 7.14 am on 31 January 2003, a passenger train operated by State Rail Authority of NSW (‘State Rail’) left the tracks at high speed near Waterfall Station, south of Sydney. Seven of the almost 50 people on the train died. Many others were injured, some very seriously. All four carriages of the train were very badly damaged.
Mr Wicks and Mr Sheehan respectively were serving members of the New South Wales Police Force. They were among the first to arrive at the scene. They were confronted with death, injury and the wreckage of the train. Overhead electrical cables had been torn down, and were lying across the wreckage, and it was anything but clear whether it was safe to go close to the wreckage.
Some of those on board had been thrown out of the train. Many remained in the wreckage. Mr Wicks and Mr Sheehan each forced his way into damaged carriages. Some passengers were dead. Some passengers were trapped, evidently seriously injured, and very distressed.
Mr Wick and Mr Sheehan each did his best to relieve the suffering of the survivors and to get them to a place of safety. As further emergency workers arrived at the scene, Mr Wicks and Mr Sheehan each continued his rescue efforts and, later, undertook other tasks assigned at the scene. Each remained at the scene for a considerable time – Mr Wicks until about 4.00 pm; Mr Sheehan until about 2.00 pm.
State Rail admited that it was negligent in the operation of the railway and of the particular train that derailed.
Mr Wicks and Mr Sheehan each alleged that he was injured as a result of being present at the crash site and what he witnessed there. Each pleaded, as particulars of the injuries he suffered: psychological and psychiatric injuries, post traumatic stress syndrome, nervous shock and major depressive disorder.
Duty of Care
The question of duty of care is a question of law.
To resolve this question would require consideration of whether it was reasonably foreseeable that a rescuer attending a train accident of the kind that might result from State Rail’s negligence (in which there might be many serious casualties and much destruction of property) might suffer recognisable psychiatric injury as a result of his experiences at the scene.
The question of foreseeability is to be posed in a way that allows it to be judged before the accident happened.
NOTE: The Court did not decide the issue of duty of care, as both parties submitted that the issue should be remitted for consideration by the Court of Appeal (which is what the High Court ultimately decided).
The Court nevertheless commented on the elements contained in section 32 of the NSW Civil Liability Act, . The Court said:
- A majority of the Court in Tame rejected the propositions that concepts of “reasonable or ordinary fortitude”, “shocking event” or “directness of connection” were additional pre-conditions to liability.
- In part, s 32 of the Civil Liability Act (NSW) reflects the state of the common law identified in Tame.
- Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care.
- Consistent with Tame, “shocking event”, and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care.
- But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found 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.
- “[S]udden shock” (the expression used in s 32(2)(a)) is no more than one of several circumstances that bear upon whether a 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 were not taken”. The occurrence of “sudden shock” is neither a necessary nor a sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm.
- Witnessing, at the scene, a person being killed, injured or put in peril is also but one of the circumstances that bear upon the central question of foreseeability. Witnessing, of the kind described, is neither a necessary nor a sufficient condition for finding a duty of care.
- Thirdly, the focus of s 32 is “mental harm” and “a recognised psychiatric illness”, not mental or nervous shock. Section 32 does not use the expression “mental or nervous shock”.
Re Section 30, Ability to claim damages
The Court’s main focus was on provisions in the legislation which may limit the ability to recover damages in claims for ‘pure mental harm’. The Court said:
‘Re Mental or Nervous Shock’
- As s 30(1) makes plain, s 30 will be engaged only where the claim is for “pure mental harm”, where the claim is alleged to arise “wholly or partly from mental or nervous shock”, and where the claim is alleged to arise from shock in connection with “another person … being killed, injured or put in peril by the act or omission of the defendant”.
- The phrase “mental or nervous shock” (as used in both ss 29 and 30) doubtlessly has a meaning different from “sudden shock” (the phrase used in s 32(2)(a)).
- The expression “mental or nervous shock” may be understood as referring to a consequence, and “sudden shock” may be understood as referring to an event or a cause.
- But the notion of “shock”, in the sense of a “sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion ([occasionally] joy), and tending to occasion lasting depression or loss of composure”, is central to both expressions.
- Because neither “sudden shock”, nor witnessing a person being killed, injured or put in peril, is a necessary condition for finding a duty to take reasonable care not to cause mental harm to another, s 30 will be engaged in only some cases where a relevant duty of care is found to exist.
Re the phrase ‘being put in peril’:
- The expression “being … put in peril” should not be given a meaning more restricted than that conveyed by the ordinary meaning of the words used. …Rather, the expression should be given the meaning which the words ordinarily convey. A person is put in peril when put at risk; the person remains in peril (is “being put in peril”) until the person ceases to be at risk.
Re an incident which involves many victims
- There is no requirement that a plaintiff must demonstrate that the psychiatric injury of which complaint is made was occasioned by observation of what was happening to a particular victim.
- Where there were many victims, s 30(2) does not require that a relationship be identified between an alleged psychiatric injury (or any particular part of that injury) and what happened to a particular victim. To read the provision as requiring establishment of so precise a connection would be unworkable. It would presuppose, wrongly, that the causes of psychiatric injury suffered as a result of exposure to an horrific scene of multiple deaths and injuries could be established by reference to component parts of that single event. Rather, the reference in s 30(1) to “another person (the victim)” should be read as “another person or persons (as the case requires)”. The reference to “victim” in s 30(2)(a) is to be read as a reference to one or more of those persons.
- In a mass casualty of the kind at issue, s 30(2)(a) is satisfied where there was a witnessing at the scene of one or more persons being killed, injured or put in peril, without any need for further attribution of part or all of the alleged injury to one or more specific deaths.
In relation to the case at hand:
- The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety.
- Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of State Rail.
- Case remitted to the Court of Appeal for further consideration in accordance with the reasons of the High Court.