December 2007

Court says no to NSW police officers' workers compensation claim for nervous shock damages

On 30 November 2007, Associate Justice Malpass of the NSW Supreme Court determined two police officers were not entitled to damages for post-traumatic stress disorder because they did not witness people being killed, injured or put in peril after attending a fatal train derailment which took place near Waterfall railway station on 31 January 2003.

As part of their duties, two officers were required to attend the scene of the derailment where they were exposed to a catastrophic scene which included passengers who had been killed, injured or were trapped in the wreckage. They were required to render assistance to the passengers, move bodies and collect personal items of the passengers.

Both officers alleged Railcorp and State Rail owed them a duty of care under section 32 of the NSW Civil Liability Act 2002 because the 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: section 32(1).

There was an admission by the defendant of breach of duty of care owed to the passengers and it was acknowledged there was a prima facie argument for the existence of a right to damages for nervous shock for professional rescuers. However, Associate Justice Malpass found it was unnecessary to address the issue further because the claim could be determined under section 30(2)(a) of the Civil Liability Act 2002.

Associate Justice Malpass confirmed section 32(2) of the Act provided an inclusive list of relevant circumstances for the application of the section and was not satisfied the evidence demonstrated mental harm was suffered as a result of a sudden shock.

The two officers argued the surviving passengers who had physical injuries were at continuing peril of further injury, both physical and mental at the scene until they were taken away by ambulance, other surviving passengers continued to be put in peril of mental injury by exposure to the sights and sounds of severely injured passengers and the process of extracting trapped passengers placed those passengers at risk of further injury. Associate Justice Malpass rejected the officers’ submissions and was not satisfied either fell within the entitlement requirements of section 30(2)(a) of the Act because they did not witness at the scene, the victim being killed, injury or put in peril.

Associate Justice Malpass concluded the evidence did not demonstrate that either officer witnessed any passengers being put in peril. He also concluded the evidence fell short of relating any particular psychiatric illness to any victim.

By way of conclusion, the Court found neither officer was able to demonstrate pure mental harm in connection with another person being killed, injured or put in peril by the act or omission of Railcorp and State Rail.

The determination in this case does not rule out the possibility of a rescuer obtaining damages for mental harm in circumstances where the provisions of the Civil Liability Act 2002 are satisfied. However, the case confirms a claim for mental harm will fail if the criteria in sections 30 and 32 are not satisfied.

New Draft Bill

Workers Compensation Amendment (Benefits) Bill 2007 has been drafted. This Bill proposes a number of amendments to the permanent impairment sections of the Act. We anticipate it will be presented in the new year.