Dear Colleagues;
A Full Bench of the High Court of Australia has handed down a unanimous decision in the appeal in
Wicks v State Rail Authority of New South Wales; Sheehan v State
Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)
http://www.austlii.edu.au/au/cases/cth/HCA/2010/22.html . The case involved two police officers who were involved in rescuing victims of a serious rail accident (the "Waterfall" accident). Their claim for psychological harm against the SRA (who conceded negligence in causing the accident, no doubt as a result of some damning findings that were made in a subsequent inquiry) was dismissed by the lower courts on the basis that the requirements of s 30(2) of the
Civil Liability Act 2002 were not met. In particular it was held that, despite working extensively to set free trapped passengers etc, the officers had not "
witnessed, at the scene,
the victim being killed, injured or put in peril" as they had come along after the crash had actually occurred.This is the first occasion where the High Court has had to give serious consideration to the provisions of the NSW CLA relating to "mental harm". They point out a number of anomalies with it. In the end they refer the matter back to the NSW Court of Appeal because they say that that Court ought to have made a ruling on the issues of (1) whether a duty of care existed, and (2) whether or not the accident had been shown to have caused the condition of both officers. But thankfully, in the course of doing so, they do give clear guidance on how s 30 (2) should be interpreted.
Contrary to the lower courts, they say that the situation of the rescuing officers here satisfied the requirements. While they came along after the actual crash, they were still present in the aftermath while many passengers were still "in peril" from live wires hanging down, etc. (And indeed, since the passengers themselves were exposed to the horrific scenes of death and injury while being rescued, those passengers were "in peril" of suffering mental harm themselves.) And it was not necessary to find a particular "victim" in the singular whose peril led to the officers' harm- the word victim could, applying the statutory "single includes the plural" rule, be read as including "person or persons (as the
case requires)"- para [54].
I would suspect that the SRA would want to settle fairly quickly now if possible, unless there are serious causation issues (I don't think the CA would find it hard to rule that a rail authority owed a common law duty of care to avoid causing foreseeable mental harm to rescuers who arrive at a train accident scene.)
As a side note, the HC expresses some confusion at why s 29 is there. I must confess to doing so as well when I first went back to the Act, but I think Dominic Villa's commentary on the Act explains it- s 29 was meant to be a re-enactment of s 3 of the Law Reform (Miscellaneous Provisions) Act 1944 which was meant to abrogate the decision of the Privy Council in Vic Railways Commissioners v Coultas (1888) 13 App Cas 22, which was read as precluding recovery for "nervous shock" altogether. Viewed in that light it is harmless if confusing. Sadly the first adjective, unlike the second, is not true of the CLA generally.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor,
Newcastle Law School Faculty of Business & Law
MC158, McMullin Building
University of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430 fax 02 4921 6931