Compensation For Pure Mental Harm
The recent outcome of a compensation claim for psychiatric injury made by two police officers who attended the scene of the Waterfall train derailment, puts into question the fairness of the Civil Liability Act.
David Wicks and Phil Sheehan were the first police officers to arrive at the site of the derailment in January 2003. They set about helping those who were injured and saw a number of deceased people. During the trial they gave graphic accounts of the horrific sights they had seen.
Both officers left the police service in 2004, having developed post traumatic stress. Both sued State Rail for psychiatric injury. Both claims were unsuccessful.
Wicks and Sheehan each received a commendation for courage by the Commissioner of Police for their work on the day of the accident. Yet they were denied compensation for legitimate illness. How could this be?
In September 2002 an expert panel was put together to review the law of negligence in Australia. The cost of public liability insurance was getting steep, so the aim of the panel was to find a way to limit liability and reduce the damages payable in some personal injury cases.
Based largely on the report made by the panel (the Ipp Report), the Civil Liability Act was enacted in NSW in November 2002. In relation to pure mental harm claims (psychiatric injury suffered as a result of witnessing or being involved in a traumatic event) it said this;
You have to actually see a person or persons being “killed, injured or put in peril” to make a claim. Or you have to be a close relative of the victim.
In other words, arriving after the actual incident has occurred doesn’t qualify you for compensation for psychiatric illness. That rules out emergency service workers.
Interestingly, the Ipp Report recommended a special provision for people who suffer psychiatric injury after viewing the aftermath of a disaster. But the word “aftermath” was significantly left out of the NSW legislation.
Other states that created new legislation weren’t so restrictive.
According to Jnana Gumbert, President of the Australian Lawyers Alliance (NSW) and Director at Stacks Law Firm, “If the rescuer is psychologically scarred by what they see, why shouldn’t the insurance system cover the damages?”
While it is possible for NSW workers in this situation to make a Workers Compensation claim, the reality is that the amount is far less than what they could get in a personal injury claim. At best, they might receive statutory weekly payments for past and future wage loss, and payment of necessary medical expenses.
It would seem that the NSW government is restricting legitimate compensation claims. A rethink of the current legislation might be due.