Psychiatric Injury – The Aftermath Of A Disaster
It would be difficult to dispute the fact that seeing another person being killed, injured or at risk of grave danger would have a pretty negative impact on your mental state.
As it did in the case of two police officers who arrived at the site of the Waterfall train derailment in 2003. David Wicks and Phil Sheehan were met with the sight of several dead bodies and seriously injured people, many of whom were still trapped in the wreckage. They went about rescuing the injured as best they could. Both officers later developed post traumatic stress and left the police service in 2004.
But when they sued the State Rail Authority of NSW for psychiatric injury, they lost in the Supreme Court, and in the Court of Appeal. Why? Because they hadnt actually witnessed the crash and seen anyone being killed, injured or put in peril. What they saw was deemed to be the aftermath, so they didnt meet the requirements to sue for negligence.
In response to the escalating cost of public liability insurance, the Civil Liability Amendment (Personal Responsibility) Act was enacted in 2002. It basically made it a whole lot harder to sue for negligence in relation to personal injury, putting more emphasis on people taking responsibility for their own actions. And the courts have been pretty strict in following the new laws to the letter.
But there have been interpretation problems.
In June 2010 the High Court upturned the Supreme Courts decision, and ruled that Wicks and Sheehan were entitled to claim for pure mental harm.
The law says that to qualify for pure mental harm compensation you have to have witnessed someone being killed, injured or in peril, or be a close relative. The Judge found that although Wicks and Sheehan hadnt witnessed the crash, the event itself was still going on when they arrived. People who were trapped were still in peril; at risk of injury as they were pulled from the wreckage, including the risk posed by electrical cables that had fallen on the train.
This interpretation of the Civil Liability Act would seem a positive one for emergency service workers, whose job it is to deal with the aftermath of a disaster.
But the case isnt quite over. It still has to go back to the Supreme Court to decide whether State Rail is liable for the officers injuries, and if so, what amount in damages will be payable.
And disasters like these are fairly unique. The Courts ruling will always depend on the specific situation.
Time will tell how this case impacts on future negligence claims.