Official rescuers and duty of care by motorists to prevent psychiatric injuries

Caffrey v AAI Limited [2019] QSC 7

Flanagan J

Facts

The Plaintiff began his policing career in the United Kingdom, in approximately 1984, as a reservist for the Royal Military Police. He then joined the West Mercia Constabulary in 1995 before migrating with his wife and two children to Australia in 2005. At that time, he joined the Queensland Police Service (“QPS”). [9] – [14].

In 2006, the Plaintiff clashed with a superior after being transferred to a different station, and was having difficulties adjusting from the policing style in the United Kingdom. The Plaintiff took around 6 weeks off work, before being cleared by a psychiatrist and psychologist to return to work. [15] – [25].

Events of 17 February 2013: [26] – [37]

On the evening of 17 February 2013, a Holden Commodore, driven by Byron Neil Williams, (insured by AAI Limited) collided with a tree at Hennessey Hill in Queensland. The Plaintiff, at the time a Senior Constable with QPS stationed at Beerwah, was the first to attend the scene along with his partner.

The Plaintiff climbed into the crashed vehicle to assist Mr Williams. The Plaintiff, in supporting Mr Williams’ neck and head to assist his breathing, noticed that he had matter, believed to have come from Mr Williams’ head, all over his hands. The Plaintiff further witnessed Mr Williams’ “squashed” legs, stayed with him until the fire brigade arrived, instructed the fire brigade not to free Mr Williams until paramedics were present, then comforted Mr Williams’ parents, who had arrived on scene, while paramedics worked on Mr Williams. The Plaintiff then notified the parents that they would need to say their goodbyes at the scene and stood with them as their son passed away.

Aftermath: [38] – [46]

The Plaintiff suffered a psychiatric injury – Post-Traumatic Stress Disorder (PTSD) – as a result of his attendance at the scene and witnessing its aftermath.

The Plaintiff began drinking heavily, stopped work and contemplated suicide. He received treatment from a psychiatrist who diagnosed him with PTSD. Another Doctor confirmed this diagnosis at the request of QPS, and considered the Plaintiff unfit for police duties. QPS requested he retire, which the Plaintiff refused, so QPS dismissed him on medical grounds effective from 19 September 2014. Prior to his dismissal taking effect, the Plaintiff attended another motor vehicle accident on 22 August 2014.

Events of 22 August 2014: [47] – [54]

The Plaintiff was returning home with his daughter from having visited his wife in hospital when another motorist flagged him down to assist with an accident. The Plaintiff attended as an off duty officer, requesting his daughter remain in the car. That accident resulted in two children lying deceased in the bush the Plaintiff had to walk through to get to the crashed vehicle, and his assisting another small child with severe injuries. Other emergency personnel arrived on scene at which point the Plaintiff left.

Issue

The parties did not dispute that the (first) accident was caused by Mr Williams’s negligence. They further agreed that the Plaintiff suffered a psychiatric injury as a result. Therefore, the Court determined that causation was also established. [156]

The main issue was “whether, as a matter of law, Mr Williams owed a duty of care to the Plaintiff” [7].

Applicable Law

[5]: The Court determined that s5(1)(b) of the Civil Liability Act 2003 (Qld) excluded application of that Act, as compensation was payable under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). As such, the proceedings were to be determined in accordance with common law principles.

[59] – [64]: Consideration of obligations under the Motor Accident Insurance Act 1994 (MAIA) were regarded as marginally relevant, but not determinative. The Court proceeded with a common law analysis.

Decision on the Issue

Duty of Care [55] – [155]

[66] – [71]: Previous requirements for a determination of liability for pure psychiatric harm, including a close relationship between the plaintiff and victim, ‘sudden shock’, direct witness of the accident by the plaintiff, and that the plaintiff be a person of ‘normal fortitude’, are no longer “requisite to the existence of a duty of care”. Proximity between the Plaintiff and victim is not determinative, but provides focus to the analysis, including consideration of the totality of the relationship and factual circumstances of the case. Therefore, the “Court’s consideration of whether a duty of care is owed in the present case must extend ‘beyond a question as to whether or not there was a foreseeable risk of injury’.”

Foreseeability [72] – [118]

[73]: “The relevant enquiry as to foreseeability, then, is whether a reasonable person in Mr Williams’ position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from Mr Williams’ negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene.”

[74] – [76]: As a matter of common sense, it is reasonably foreseeable that upon discovery of a motor vehicle accident, triple zero would be dialled and emergency services personnel, including police officers, would attend the scene. The fact the Plaintiff was first on scene does not preclude a duty being owed. Further, the attendance of Mr Williams’ parents was something occurring in the ordinary course of events. Their contribution to the Plaintiff’s trauma “should not be viewed as outside the contemplation of someone in Mr Williams’ position”.

[78] – [81]: In turning then to the central inquiry – whether it is reasonably foreseeable that, after his arrival at the scene, a serving police officer in the plaintiff’s position might suffer psychiatric injury – the Court undertook an analysis of the decision in Jausnik v Nominal Defendant (No 5) [2016] ACTSC 306.

At [112] of that case, it was held to be “reasonably foreseeable that a police officer may suffer mental harm when attending the scene of an accident”. The Defendant submitted three factors for distinguishing from that decision:

  1. The Plaintiff did not directly perceive the accident, only its aftermath; and,
  2. Mr Williams is both the Defendant and sole victim; and,
  3. The Plaintiff was not personally involved leading up to the accident, such as through a police pursuit.

The Court determined that none of these dictated a finding that a duty of care was not owed [85].

  1. [86] – [95]: The legal requirement of ‘direct perception’ is satisfied by a plaintiff viewing the accident as it occurs, or its immediate ‘aftermath’, a concept which is to be viewed broadly and includes extraction, treatment and ambulance transport. The Plaintiff was involved in the aftermath of the accident.
  2. [96] – [118]: Recent decisions have removed the requirement that psychiatric injury be the result of a death or injury of someone other than the person accused of negligence.
  3. [119] – [125]: The Plaintiff was more than a ‘mere bystander’ as he took steps to keep Mr Williams alive, comforted his parents, instructed firefighters on the scene, and eventually helped his parents say goodbye. Alternatively, the Plaintiff was a more than a ‘mere bystander’ as he falls within the ‘rescuer’ category. The principle of owing a duty to one’s “neighbour” extends to rescuers in times of injury. The HCA’s description of rescuers as undertaking tasks “to try to ease the suffering of others and take them to safety” (in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at 73, [33])
was clearly met by the Plaintiff.

Policy Considerations [119] – [155]

The finding of a duty of care should not be denied for policy reasons contended by the Defendant:

  1. Would discourage the public from reporting accidents; and,
  2. Unjustifiably expands liability; and,
  3. The public is entitled to expect police resilience.

Court held that:

  1. In Australia, there is no ‘firefighter’s rule’ barring emergency service personnel from claiming for physical injuries, and is yet to be denied on the basis that it may deter members of the public from reporting emergencies, so there is no reason why psychiatric harm should be said to have such a deterrent effect [126]. It is further practically unlikely for accidents to go unreported, as it is more often bystanders who report such incidents rather than the purportedly negligent drivers who may be liable [127].
  2. The scope of liability is not overly broadened by this, as claimants still have to meet the threshold requirement of suffering from a recognisable psychiatric injury, not merely stress or sadness, and the necessary legal reasoning process is still undertaken.
  3. Finally, the Court compared the facts of ACQ Pty Ltd v Cook (2008) 72 NSWLR 318 and found that, in this case, although police officers can choose safe means of assisting at an accident site to prevent physical harm, it is not clear what they can do to protect themselves against psychiatric harm. They would not be able to leave the scene until the risk was under control, such as the Plaintiff in ACQ.

The Court states at [148] – [149]:

“An accident scene, like a fire, is inherently dangerous from a psychiatric perspective. A person who by their negligence causes such an accident must have in contemplation the fact that police officers are human and, as the plaintiff submits, not entirely immune to psychiatric injury, even where they make use of all available training, experience and detachment techniques the public might expect them to have acquired.

Certainly, the public are entitled to expect a high degree of psychiatric endurance from police officers. I accept the defendant’s submission that, if one were to choose between two people to attend at an accident scene, one a police officer and one not, a reasonable person would conclude that the police officer would be better equipped to “handle” the scene. Reasonable foreseeability may therefore pose a greater hurdle to police officers in claims for pure psychiatric harm than it does for others. However, as observed at [82] of these Reasons, the 17 February 2013 accident exposed the plaintiff to deeply distressing and personalised circumstances. Applying Mason J’s much-cited formulation of reasonable foreseeability from Wyong Shire Council v Shirt, the plaintiff’s psychiatric harm was not a far-fetched or fanciful result of Mr Williams’ negligent driving.”

This obligation owed to police officers who may attend at an accident “imposes no greater duty on Mr Williams than the ‘recognised obligation on each road use to exercise reasonable case for other’ (Hirst v Nominal Defendant [2005] 2 Qd R 133 at [52] per Douglas)”. [152]

Therefore, Mr Williams owed the Plaintiff a duty of care. [155]

The Defendant pleaded a secondary causation issue, that the Plaintiff had a pre-existing vulnerability to the development of a psychiatric illness. The Court held this was relevant to calculating the quantum of damages to be awarded, which were accordingly reduced by 30%. [157] – [178].

The Plaintiff was awarded $1,092,948.

David Cormack – Brisbane Barrister & Mediator

Madeleine Bowater – research assistant

 

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