Sheehan v SRA; Wicks v SRA

Sheehan v SRA; Wicks v SRA - [2010] HCATrans 15 - HCATrans 2010 case summary — Zoe

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Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57 Blaxter v Commonwealth of Australia [2008] NSWCA 87 Bourhill v Young [1943] AC 92 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 Chadwick v British Railways Board [1967] 2 All ER 945 Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Frost v Chief Constable of South Yorkshire Police; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175; (2001) 51 NSWLR 606 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Hambrook v Stokes Bros [1925] 1 KB 141 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 CASES CITED: McLoughlin v O'Brian [1983] 1 AC 410 Metcalfe v Commonwealth of Australia [2008] VSCA 23; (2008) Aust Torts Reports 81-934 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Owens v Liverpool Corporation [1939] 1 KB 394 Pepper v Hart [1993] AC 593 Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 22 R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Repatriation Commission v Thompson (1988) 44 FCR 20 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289 Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153 Seltsam Pty Ltd v McNeill [2006] NSWCA 158 State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Rep 81-818 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

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Leading Senior Constable Philip Sheehan was a member of the initial New South Wales Police response and subsequent search and rescue operation. Confronted with an accident scene where two of the carriages were on their sides and the other two carriages were derailed, power lines were down across the train, rails and stanchions and there were a number of both deceased persons and injured survivors, the Leading Senior Constable undertook an immediate assessment of the accident scene, provided emergency first-aid and succour to the injured and assisted other Police to gain entry to the wrecked train." 7 A similar account is recorded in the Commendation for Courage awarded to Senior Constable Wicks. 8 Senior Constable Sheehan attended the accident having responded to a message broadcast over police radio that a train had derailed 1.5 km south of Waterfall railway station. The accident site was difficult to access and he (and the two police officers with him) first had to follow a gravel road and then had to travel along the rail track, until they reached the bottom of a steep and rocky track. From there, Senior Constable Sheehan could see the derailed train, which consisted of four carriages. The last two carriages were lying on their sides and the front two were upright, although it was apparent that those two carriages had initially overturned and travelled some distance on their side, before hitting a cutting which forced them back into an upright position. 9 Senior Constable Sheehan saw bodies of passengers who were obviously dead. He saw a number of passengers wandering around and others sitting beside the tracks. Some had minor injuries and some appeared to be in shock and were not acting in a rational manner. Power lines were down and draped over the tracks and carriages in various places. Senior Constable Sheehan used his police radio to inform other members of the police service that there were a number of deceased persons. He also tried to ascertain if the power was off. There were, however, problems with his radio transmission and he could not obtain clarification as to whether the fallen power lines were live or not. 10 As he walked between the cutting and the upright carriages, Senior Constable Sheehan saw a female person lying in the foetal position and was informed by another police officer that she was dead. There was a male person nearby, who had serious injuries to his legs and head. Senior Constable Sheehan initially thought he too was dead, but then saw the person make some movement. As Senior Constable Sheehan moved through the carriages, he saw partly dismembered bodies. He observed massive damage to the driver's compartment and he could not gain access to the upper level of the first carriage. 11 When he went to the second carriage, he quickly realised that the health and lives of a number of passengers were at further risk unless the rescue efforts were effective and the passengers received urgent hospital treatment. Senior Constable Sheehan commenced assisting other police officers with removing injured persons from the carriages. 12 Senior Constable Sheehan assisted Senior Constable Wicks in gaining entry to the third carriage and also assisted ferrying equipment as required by the ambulance service. At this time, he was still concerned as to whether the fallen power lines were live and was careful to confine his movements to an area away from them. On one of his trips up and down the line of the carriages, he slipped on a Perspex window from the train. When he looked down, he saw a piece of flesh protruding from under the Perspex and upon lifting it, he observed what he thought was either a leg or the side of a human body. 13 He continued to assist other police and ambulance officers, helping the injured from the carriages to the various triage areas that had been set up. Whilst climbing through the carriages, Senior Constable Sheehan observed that the passengers were in varying states of discomfort, pain and distress. He heard moaning and from time to time, he heard screaming. So far as he could observe, people had sustained lacerations, broken limbs and bruising. There were people with spinal injuries. 14 The ambulance did not arrive at the scene of the derailment until about 10 minutes after the police arrived. Senior Constable Sheehan said that during this period, he and the other police officers were involved in assessing the injuries and assisting the passengers as much as possible. He said it was obvious that one of the first things to do was to get those people who could walk away from the train, so that any risk of further injury could be minimised. The level of distress of the passengers generally was such that he considered it was necessary to get them out of the carriages and away from the scene as quickly and efficiently as possible. 15 He assisted ambulance officers in placing passengers with spinal injuries onto spine boards. He said this was difficult, because of the position of passengers lying between the train seats. Acting under the direction of ambulance officers, he assisted with keeping the necks of injured passengers stable as part of the process of moving them onto the spine boards. He said these passengers were in peril, not only from their injuries, but also during the rescue process, which he described as "hands on rescue work". 16 There was one passenger who had a compound fracture of her leg, who Senior Constable Sheehan and another officer carried, without the use of a stretcher, to the triage area. This passenger was screaming with pain and Senior Constable Sheehan had to exercise care to minimise the additional stress on her and to avoid aggravating her injuries in the rescue process. This passenger was so severely injured with massive blood loss, that the ambulance officers determined she should be removed from the train so that she could be got to hospital as a matter of urgency. 17 In addition to assisting with the removal of passengers, Senior Constable Sheehan helped other people by reassuring them, including by letting them know help was on its way. Many of these passengers were tearful and all appeared to be in pain and extreme distress. Senior Constable Sheehan considered it was necessary to attempt to divert their attention from the dead bodies around them as he moved them away from the accident site. 18 Senior Constable Wicks had also responded to a police radio message and travelled to the site of the derailment with another officer, Senior Constable Mann. He described having to search for survivors, having to step over dead bodies, observing bodies "torn apart literally with guts hanging out" and people in states of severe shock. He described one person as "lying between the first and second carriage with her guts torn out". Upon inspecting the driver's licence of one of the dead victims he realised he knew her. 19 He observed that the first and second carriages, although upright, were severely damaged. He also observed that the power lines were down and he could not ascertain whether they were still live or not. His attempts to clarify whether this was so over the police radio were also not successful. He later assumed the power was off when he saw an injured passenger touch some metal near where one of the power lines was down. He described this period as fraught with potential danger, as the police were receiving conflicting information as to the state of the power lines and this initially caused the police officers to hesitate in undertaking the rescue work. Also, initially, there was no one present with rescue equipment. This was particularly serious in respect of a woman whom Senior Constable Wicks saw trapped in the first carriage who was clearly severely injured and needed urgent attention. 20 Senior Constable Wicks was the senior police officer on the site and it was part of his duties to attempt to assess the extent of injuries and the requirements for rescue. He assisted with passengers, including walking a woman in severe shock away from the site. He said that as he did so, he attempted to reassure her by telling her to "[m]ake sure you look straight ahead because there are deceased persons to the left and right of you". Senior Constable Wicks said he considered this was an important part of the rescue task, in preventing further emotional shock to the victim. He said there were horrific sights had she looked down and seen the bodies that were lying around. 21 In his assessment of various injured persons, Senior Constable Wicks realised that some were in peril of their life, unless quickly rescued, treated and evacuated to hospital. Senior Constable Wicks saw it as part of his duties to gather information about where the injured were to be found and to suggest some priorities when the medical assistance arrived. There were other people sitting around in severe shock and he attempted to reassure them as much as he could. He did this by telling them that the rescuers were on their way and that they would be evacuated and receive treatment. One of the victims was a 15 year old boy with a large cut on his head, who kept asking whether he was going to die. 22 Senior Constable Wicks found a young woman in the upstairs section of the second carriage who had injured her leg and could not walk. He carried her to a triage area, attempting to do so in a way so as to avoid making her injury worse or more painful. He carried her along a route that avoided her sighting the dead and injured passengers. 23 He attempted to assist another woman who was seriously injured, with a wound to her head and other injuries. Every time he attempted to move her, she screamed. Senior Constable Wicks said he was concerned about this woman, whom he considered was at risk of deterioration, unless she was rescued, treated and evacuated. However, he could not assist her immediately, because she would not follow any of his suggestions and it was necessary to wait for the medical rescuers. He tried to make sure she stood calmly and held onto the front of the seat until the rescuers came. 24 Senior Constable Wicks then went to the third and fourth carriages and saw that there were people inside. He got a ladder and smashed in a window to gain entry, being assisted by Senior Constable Sheehan who passed him up a boulder. There were four or five people trapped inside. One had a severely broken ankle and was in pain and was moaning. The passengers in the carriage appeared shocked and under stress. He attempted to reassure them as best he could. He and other police officers then assisted the passengers out of the carriage. Thereafter, he performed the task of collating the property and evidence from the victims near the triage area. Whilst he was doing so, the rescue attempts continued for some hours. At one time during this period, he was required to go into the first carriage as photographs were being taken of one of the dead victims and he assisted putting the body in a bag and lifting it out of the carriage.

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Liability to rescuers 25 The appellants were each part of the rescue operation following the train derailment. The respondent accepted that it owed a duty of care to the passengers in the train, but made no such concession in respect of the appellants. It did not deny that theoretically such a duty could exist: see Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112. Rather, it argued that it was not reasonably foreseeable that either appellant would suffer psychiatric harm in the circumstances. 26 The question whether the respondent owed the appellant a duty of care was the first issue identified for Malpass AsJ's determination. His Honour did not determine whether the respondent owed to the appellants a common law duty of care: judgment at [63]. Rather, his Honour approached the first issue through the prism of the Civil Liability Act. His Honour said, in relation to s 32, that the evidence did not demonstrate that mental harm was suffered as a result of sudden shock: s 32(2)(a) and that the appellants did not satisfy s 32(2)(b) as they did not "[witness], at the scene, [persons] being killed, injured or put in peril". His Honour's reasoning on subs (2)(b) was based upon his finding that the appellants did not fall within the category of persons entitled to recover damages for purely mental harm within the meaning of s 30(2)(a), the terms of which are essentially identical to s 32(2)(b). (Section 32(2)(b) uses the word "person", whereas s 30(2)(a) refers to "victim".) 27 Before dealing with the question of construction of s 30(2)(a) which thus arises, it is useful to say something about the general law as it applies to rescuers. 28 The respondent accepted that there may be a common law duty of care owed to rescuers. Chapman v Hearse is the oft-quoted authority for the existence of such a duty. That case involved a claim by Hearse against Chapman for contribution for the damages payable to the estate of a Dr Cherry. Dr Cherry had been killed whilst on the roadway assisting Chapman, who had been thrown out of his vehicle when he had negligently crashed into a vehicle in front of him. Dr Cherry, who came upon the scene almost immediately, stopped to render Chapman assistance. Hearse failed to see Dr Cherry, who was near the centre of the road, and also failed to see the injured Chapman on the roadway. He collided with Dr Cherry, who was killed by the impact. 29 In contribution proceedings, Chapman denied that he owed a duty of care to Dr Cherry. The High Court rejected that contention, finding, at [7], 121, that it was: "… reasonably foreseeable that subsequent injury by passing traffic to those rendering aid after an accident would by no means be unlikely." 30 Chapman also contended that the later negligent driving of Hearse broke the chain of causation. That contention was also rejected. The High Court held, at [11], 125, that the risk of injury to Dr Cherry was substantial and that in the circumstances, which included that it was night and raining so that visibility was impaired, Chapman's negligence was a cause of Dr Cherry's death. 31 Curiously, the High Court did not treat the case as a rescue case. Rather, the Court referred to the case as being analogous to the "so-called 'rescue cases'". It is not necessary to dwell on the reference to the analogy, which is possibly explained by the nature of the proceedings, that is, that they were contribution proceedings and not a claim by the rescuer or the rescuer's estate. Nonetheless, the import of the decision is clear: a duty of care may be owed to rescuers. 32 The respondent also referred in its submissions to the judgment of Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1999] 1 All ER 1. Frost was a police officer who attended at the scene of the collapse of a soccer stadium, in which nearly 100 people died and many were injured. Frost and other police officers brought claims against the Chief Constable, who was in a position analogous to an employer, for psychiatric harm they suffered as a result of tending to victims at the scene. The police officers fell into various categories. Liability was admitted and damages assessed in respect of those officers who were active in the immediate areas where the deaths and injuries occurred. Five plaintiffs were then selected as representative of the various other categories into which the police officers fell: some were on duty in the stadium and others were responsible for stripping bodies and completing casualty forms at the hospital. The trial judge rejected the claims in respect of these other officers. 33 On the appeal, two main issues arose. The first was whether the Chief Constable owed the police officers a duty of care in the circumstances. That question has no relevance to the present case, as the claims here were brought against the respondent as the tortfeasor. The second was whether a rescuer, who sustained psychiatric injury as a result of witnessing or participating in the aftermath of an accident where persons had been killed or injured, was entitled to recover damages when physical injury to the rescuer was not reasonably foreseeable. That is, were damages recoverable for purely mental harm in such situation? 34 Lord Goff noted firstly, at 471, that it was not necessary to identify a class of "professional" rescuers to which special rules should apply. At 484-485, his Lordship dealt with the duty owed to rescuers in the following terms: "I turn next to the category of rescuers. This category is of particular importance for outsiders who intervene in a situation created by a wrongdoer. The fact that an outsider may intervene in such a situation to rescue a victim of the wrongdoing is reasonably foreseeable by a person in the position of the wrongdoer. The intervention is justified by the necessity of the moment, and so is not unlawful. It does not break the chain of causation between the wrongful act of the defendant and injury suffered by the intervener by reason of his act of rescue, whether the rescue is successful or not. Compensation for such an injury may be recovered by the intervener from the wrongdoer, whether the injury is physical as in the classic rescue cases such as Ward v T E Hopkins & Son Ltd, Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225, [1959] 1 WLR 966, or psychiatric as in Chadwick v British Transport Commission [1967] 2 All ER 945, [1967] 1 WLR 912.

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See also Mason P at [163], [171]-[172]; Pepper v Hart [1993] AC 593; and R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45. 41 However, ambiguity is not essential before resort can be had to contextual material. Rather, as Spigelman CJ said in Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83 at [86]: "It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified. (See eg CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].)" 42 There is nothing in the Second Reading Speech in this matter which assists, save a reference that these provisions were introduced as part of an overall statutory scheme implemented following upon the recommendations made in the Review of the Law of Negligence Final Report (Chairman the Hon Justice David Ipp), September 2002 (the Ipp Report). Those reforms, although retaining much of the common law, also had the effect of restricting and limiting rights. 43 Specific consideration was given in the Ipp Report to the duty to take care to avoid causing pure mental harm. The authors observed that historically, and at various times: "… the law has said that a duty to avoid causing mental harm would be imposed only in relation to harm caused by 'shock'; that this duty was owed only to persons who were physically near to the scene of the 'shocking' events at the time they occurred, or who witnessed their 'immediate aftermath'; and that the duty was owed only to those who witnessed the shocking events or their aftermath with 'their own unaided senses'." (138, 9.12) 44 The authors observed that these various preconditions had been "jettisoned, as preconditions" in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 (original emphasis). 45 The Ipp Report continued: "The fundamental proposition which Tame/Annetts seems to establish is that reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care. It also establishes, however, that a duty of care to avoid mental harm will be owed to the plaintiff only if it was foreseeable that a person of 'normal fortitude' might suffer mental harm in the circumstances of the case if care was not taken. This test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. It only requires it to be foreseeable that a person of normal fortitude in the plaintiff's position might suffer mental harm. In this sense, being a person of normal fortitude is not a precondition of being owed a duty of care." (138, 9.13) (Original emphasis) 46 The Ipp Report, in para 9.14, picked up the phrase "in the circumstances of the case" and specified what was encompassed within its terms. I will not set those matters out. It is sufficient to record that each of the matters nominated within para 9.14 finds statutory expression in s 32(2). The inclusion of these matters in s 32 highlights the important distinction between s 30 and s 32. Section 30 specifies the classes of persons who are entitled to recover damages provided a duty of care is owed and the cause of action is otherwise established. No other class of persons has any such entitlement. Section 32 deals with the circumstances in which a duty of care is owed. 47 The Ipp Report considered that following Tame / Annetts, the basic principles governing liability for physical and mental harm were the same. This is correct and does not require any further analysis for present purposes. Having regard to the Panel's Terms of Reference, the Report then posed the question: " … whether the current state of the common law imposes satisfactory limits on liability for mental harm. In practical terms, the question is whether liability for pure mental harm should be subject to preconditions of the sort that existed before Tame/Annetts was decided." (140, 9.19) 48 In commenting upon that question, the Ipp Report referred first to the Law Reform (Miscellaneous Provisions) Act 1944, s 4 which permitted recovery for purely mental harm by a parent or spouse of a person killed, injured or put in peril. In addition, any other member of the person's "family" could recover if the person was killed, injured or put in peril "within the sight and hearing" of the family member (140, 9.20). This was an extension of the common law as it existed in 1944. 49 Reference was next made to the Motor Accidents Compensation Act 1999, s 141 which provided that a person was entitled to recover damages for mental harm if the person was, when the accident occurred, present at the scene, or if the person was a parent, spouse, brother, sister or child of the victim. 50 Finally, the Ipp Report referred to cl 69 of the consultation draft of the Civil Liability Amendment (Personal Responsibility) Bill 2002 which provided, relevantly: " 69 Limitation on damages for nervous shock

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(b) a bystander, or (c) a close relative of the victim who, as a consequence of the death of or injury to the victim, has suffered a demonstrable psychological or psychiatric injury and not merely a normal emotional or cultural grief reaction." 51 Importantly, "bystander" was defined, in subs (4), to mean: "… a person (other than the victim) who was present at the scene of the incident giving rise to a claim when the incident occurred." 52 The Ipp Report recognised that these statutory provisions and the provision proposed in the consultation draft limited the classes of persons who were entitled to recover damages for purely mental harm. The Report stated: "Leaving this issue aside, in assessing such provisions it needs to be borne in mind that an important reason why such limitations on liability have been abandoned by the common law is that they appear to many to be arbitrary and unprincipled, and that their only aim and effect is to limit the potential number of claims for pure mental harm. This is a particular problem when the limitations in question are imposed by the common law which, it is widely thought, should be based on 'reason' and 'principle', not pragmatism or political considerations. It is just such a principled basis of liability for pure mental harm that the High Court sought and found in Tame/Annetts . The problem of 'arbitrariness' is not no great when such limitations are imposed by statute because they can be justified on grounds of distributive and social justice to which courts generally are wary of appealing. But this may not remove the perception that such limitations are essentially arbitrary and, to that extent, unfair." (141, 9.24) 53 The Ipp Report did not recommend that there be a list of relationships of persons who ought to be entitled to recover for purely mental harm, because the Panel thought that there were problems in doing so. Relevantly, for present purposes, it made no comment on the entitlement of persons such as bystanders. That may be because the consultation draft of the Civil Liability Amendment (Personal Responsibility) Bill 2002 included bystanders. But the Panel did suggest "a legislative statement of what we consider to be the current state of the law about when a duty is owed to take care to avoid causing pure mental harm", one embodying the "principles": "(a) There can be no liability for pure mental harm (that is, mental harm that is not a consequence of physical harm suffered by the mentally-harmed person) unless the mental harm consists of a recognised psychiatric illness.

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The appellants' construction of s 30(2)(a) 58 Senior counsel for the appellants submitted that in construing s 30(2)(a), it was necessary to define the relevant timeframe over which it operated. There were two available timeframes. The first was the period over which the breach of duty of the tortfeasor was continuing to operate so as to cause consequences to victims. The other timeframe was to be considered from the perspective of those "being killed, injured or put in peril". 59 Taking the first of the available timeframes, the appellants submitted that it was necessary to determine, as a fact, over what period the breach of duty of care was operating. The appellants contended that the sustaining of injury due to a breach of duty can occur either instantaneously or over a period of time. The latter was the case, on the appellants' submission, in collisions causing mass disaster and requiring major rescue and retrieval efforts in an emergency situation. Reference was made to Blaxter v Commonwealth of Australia [2008] NSWCA 87 and Metcalfe v Commonwealth of Australia [2008] VSCA 23; (2008) Aust Torts Reports ¶81-934. On the appellants' construction of s 30(2)(a), persons who arrived at the scene after the incident, but witnessed persons being put in peril by, for example, the rescue process, fall within the phrase "witnessed, at the scene, the victim being killed, injured or put in peril". 60 Both Blaxter and Metcalfe were damages claims brought by seamen who were assigned to HMAS Melbourne on the night of the collision of that vessel with HMAS Voyager. The facts of the collision are part of Australian legal and naval history and do not need to be repeated here. Neither case was governed by the provisions of the Civil Liability Act. However, the point of reliance was to establish that the timeframe of an horrific event is not necessarily bounded by the time over which the incident, in this case, the derailment, occurred. Put another way, there are some circumstances in which the aftermath of the incident is part of the incident itself. It is sufficient for the purposes of the argument to consider the facts in Blaxter. 61 In Blaxter, the plaintiff had assisted in the rescue operations of seamen who had been on the HMAS Voyager. He described the horrific circumstances of the rescue. The following morning, there was an incident involving the naval surgeon which caused the plaintiff to be charged with insubordination. The Commonwealth attempted to attribute the plaintiff's resignation from the Navy to that incident, which in turn, it contended was not associated with its admitted negligence in respect of the collision itself. Basten JA (Mason P and McColl JA agreeing) rejected the Commonwealth's arguments. His Honour, after referring to Chapman v Hearse, stated, at [71]: "The present case was itself 'a rescue case' and no one doubted that the psychological injury caused in the course of the rescue constituted part of the loss for which the Commonwealth was liable. However, it is artificial to say that the rescue was completed, and thus no further loss could eventuate, once the cutter was removed from the water. In a commonsense assessment, it should be accepted that the events of the following morning were part of the rescue operation. Indeed, one can envisage a range of further circumstances which might have arisen, including exposure to injured seamen and continuing fears as to the safety of the Melbourne . A commonsense approach does not permit any bright line to be drawn between the psychological effects of the previous evening and those resulting from the events of the morning after." 62 The second available timeframe was one considered from the perspective of the primary victim, so as to encompass the period in which the victim continued to be injured or put in peril, which, the appellants contended, included the period of the rescue operation. The appellants submitted that the passengers were in continuing peril of physical and mental injury during the rescue operation and remained so until their evacuation for treatment. 63 The appellants catalogued the following general examples. Crash survivors, who were injured and bleeding, continued to be put in peril because additional or extended injury can occur if injuries are not promptly treated by ambulance officers, doctors and hospitals; passengers, both with and without physical injuries, continued to be put in peril of mental injury by exposure to the sights and sounds of severely injured passengers, the damage and overturned carriages and the drama and turmoil of the rescue efforts; the process of extracting trapped passengers and placing injured passengers onto spine boards and stretchers involved the possible aggravation or exacerbation of injury, putting them in peril of such further injury; and the powerlines draped over the carriages represented a temporary peril to the passengers. Involvement in this range of possibilities would bring a person within the phrase "witnessed, at the scene, the victim being killed, injured or put in peril" regardless of whether that person was a passenger but initially did not see victims "being killed, injured or put in peril"; was a person who came upon the scene shortly afterwards; or was a rescuer. 64 Concrete examples can be given to further demonstrate the point. Take the case of a passenger, who did not see anything in the original collision, but saw another passenger injured when being severely cut by glass whilst being pulled from the wreckage. The train driver, (assuming he or she had not been injured) who saw persons being injured in the example just given, would likewise fall within s 30(2)(a). On the appellants' construction of s 30(2)(a), a rescuer would be in no different position. 65 The appellants' actual circumstances do not precisely fit the examples to which I have referred. There was no evidence that persons were in fact injured during the course of the rescue process (although they may well have been). The appellants contended, however, that having arrived on the scene, they witnessed persons being "put in peril" during the course of the rescue. This included, in the case of Senior Constable Sheehan, the occasion when he carried the woman with the compound fracture, moving persons with spinal injuries onto the spine boards, and shielding persons from observing dead and injured bodies, and thus from being put in peril of further shock, whilst moving them away from the crash scene. There were similar features in Senior Constable Wicks' case. They also contended that they each witnessed persons being put in peril by the live power line hanging over part of the train. (However, the evidence did not establish whether or not the electric wires were live. The evidence went no higher than the appellants being unable to ascertain the position as to whether the power had been cut or not.) They submitted that they therefore fell within s 30(2)(a).

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Conclusion on construction of s 30 74 Section 30(2)(a) requires first that a plaintiff "witnessed" something "at the scene" of the incident. What must be witnessed is "the victim being killed, injured or put in peril". That phrase appearing in s 30(2)(a) gains meaning from its use in s 30(1), where the full phrase is "[the victim] being killed, injured or put in peril by the act or omission of the defendant" (emphasis added). The phrase does not refer to a static state of the victim, as it would not be sensible to speak of a victim in the state of "being killed", and so the phrase also does not speak of a victim being in the state of being injured or of being put in peril. Rather, "being" refers to something occurring, the process of being killed, or being injured, or being put in peril. And the process must be one which occurs "by the act or omission of the defendant". 75 There is no doubt that there is an entitlement to claim damages where a person witnessed a person being killed, injured or put in peril in the course of the incident. Thus, if a passenger saw a fellow passenger being pinned under a falling stanchion that crushed the train, the first mentioned passenger is a person who "witnessed, at the scene, the victim being … injured or put in peril". If the stanchion was knocked loose in the collision and then fell during the rescue process, killing or injuring passengers, or putting them in peril, then a rescuer who saw the stanchion crushing or pinning persons underneath and who suffered mental harm as a result, would, arguably at least, fall within s 30(2)(a). In that situation, "being" would be satisfied, as would the causal connection with the negligent act or omission whereby the derailment occurred. To that extent, there would be substance in the appellants' argument that an accident extends beyond the time when the impact occurs. 76 It is another step again to say that a rescuer witnessing matters at the scene as the appellants did witnessed victims "being killed, injured or put in peril"; in context, and confining attention to being "put in peril", "by the act or omission of the defendant". The derailment was what put the victims in peril by the respondent's act or omission. When the appellants arrived the derailment, as the incident which killed, injured and put in peril passengers in the train, was over; there was no consequential event such as the falling of the stanchion knocked loose in the collision. The process of victims being put in peril had ended, and the appellants witnessed what some cases and the Ipp Report refer to as the aftermath. 77 There is an immediacy about the language of "witnessed, at the scene" something that was happening, that is, persons "being killed, injured or put in peril". Had the provision used the language of "aftermath" as recommended in the Ipp Report and as included in the Tasmanian provision, or other language that included persons who came on the scene, the appellants' argument would be available. The omission of such language is significant, in my opinion, in marking out the operation of the provision. Properly construed, I am of the opinion that s 30(2)(a) does not extend to persons who came upon the scene after the incident itself in which persons were killed, injured or put in peril was over. It follows that the appellants do not fall within the scope of those entitled to recover for purely mental harm.

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Section 32 78 It is not necessary, therefore, to consider the dispute over whether Malpass AsJ answered the first question, or to determine whether the respondent did not owe the appellants a duty of care as provided for in s 32. 79 The omission to include persons who come to the aid of persons after an accident might be unfortunate, but the legislature has chosen to limit the persons who are entitled to recover for purely mental harm. There are undoubtedly other classes of persons, in addition to rescuers, who might be thought to be deserving but fall outside the provision. However, that is a matter for the legislature. The Court is required to construe the legislation so as to give effect to the objective intention of the legislature having regard to the language used. 80 Accordingly, I propose that each appeal be dismissed with costs. 81 GILES JA: I agree with Beazley JA. 82 McCOLL JA: I have had the benefit of reading Beazley JA's reasons in draft. I will not repeat the facts save to the extent necessary to explain my reasons. 83 The critical issues on the two appeals were whether the appellants fell within that class of persons contemplated by s 30 of the Civil Liability Act 2002 (NSW) as those who are entitled to recover damages for pure mental harm and, if they did, whether the respondent owed them a duty of care within the meaning of s 32. Both ss 30 and 32 appear in Part 3 of the Civil Liability Act which deals with "Mental Harm". 84 It was common ground at trial and on appeal that those issues fell for determination under that Act by virtue of s 3B(2)(e) of the Civil Liability Act which renders Part 3 applicable to motor accidents, notwithstanding their prima facie exclusion in s 3B(1)(e). Although it was not debated it would seem the Waterfall derailment is classified as a "motor accident" because the train was a motor vehicle, being a vehicle built to be propelled by a motor that forms part of the vehicle: Road Transport (General) Act 2005, s 3; applied by virtue of s 3, Motor Accidents Compensation Act 1999 (the "MAC" Act) and the deaths or injuries caused by its derailment during its operation were as a result of and caused during either the driving of the vehicle, or the vehicle running out of control: definition of "motor accident", s 3, MAC Act.

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but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify. 31 Pure mental harm-liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness 32 Mental harm-duty of care (1) A person ("the defendant") does not owe a duty of care to another person ( "the plaintiff") to take care not to cause the plaintiff mental harm unless 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. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff." (Emphasis added) 86 In addition to s 32, a number of provisions of the Civil Liability Act deal with the concept of a duty of care. Section 5B(1) which appears in Pt 1A (Negligence), Div 2 (Duty of Care) sets out the general principles which reflect the content of the common law test for when a duty of care is owed, while s 5B(2) sets out the test posed by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47 - 48) concerning breach of duty: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Rep ¶81-818 (at [27], [45]) per Ipp JA (Spigelman CJ and Tobias JA agreeing). 87 Other provisions of the Civil Liability Act describe the circumstances in which a duty of care does or does not arise. A plaintiff does not owe a duty of care to a defendant to warn of an obvious risk to the plaintiff (Pt 1A, Div 4, s 5H(1)); a defendant does not owe a duty of care to a plaintiff who engages in a recreational activity in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff (Pt 1A, Div 5, s 5M(1)). Section 42 in Pt 5 sets out principles to be applied in determining whether a public or other authority has a duty of care. Section 45(1), also in Pt 5, provides that a road authority is not liable in proceedings for civil liability, in substance, unless at the time of the alleged failure it had actual knowledge of the particular risk the materialisation of which resulted in the harm. Section 45(2)(a) provides that the section does not operate to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk. Section 49 (Pt 6) deals with the effect of intoxication on both duty and standard of care. Submissions 88 Mr B Gross of Queens Counsel, who appeared for the appellants on appeal and at trial, accepted that s 30(2) narrowed the class of persons who could claim damages for pure mental harm. He also accepted that s 30(2)(a) imposes requirements which endeavour to confine the class of potential plaintiffs who are not a close member of the family of the victim (s 30(2)(b)) by reference to considerations of geographic and temporal proximity requiring physical presence during the occurrence of one or other of the events specified in that sub-section. 89 However, he submitted that while the word "being" in s 30(2)(a) which qualifies the words "killed, injured or put in peril" requires the identification of a time frame, that time frame can be defined either by reference to the respondent's breach of its duty of care continuing to operate so as to cause consequences to the victim or by any continuing process of the victim "being killed, injured or put in peril". 90 For the purposes of his first formulation (continuing breach of duty) he argued that the respondent's breach of duty was manifested in two ways, both of which entailed the proposition that breach of duty and sustaining of injury can occur over an "extended" time frame, a circumstance he contended was particularly apposite in the case of catastrophic incidents. 91 Mr Gross contended that the respondent's breach of duty included not only the acts or omissions which caused the derailment, but also those which "caus[ed] the passengers to be trapped in the train wreckage and being confronted with the trauma of the need to escape…". Secondly he contended the breach of duty "was still producing consequences … when both appellants, having arrived at the scene, witnessed relevant events". Each of these manifestations of breach was a sufficient condition to satisfy the s 30(2)(a) threshold because during the time the appellants were at the accident scene, the victims were "being … put in peril" by facing risks of further injury both of a physical or psychiatric nature. 92 Mr Gross argued that the primary judge (Wicks v Railcorp; Sheehan v State Rail [2007] NSWSC 1346 (at [78])) erred in his construction of s 30(2) because he set too high a standard for what witnessing a person "being…put in peril" entailed and excluded "mere possibilities", an expression which was uncertain, and left in that state by his Honour's reasons. He contended that the notion of "mere possibilities" was an inappropriate gloss on s 30(2)(a). 93 Mr P Morris, who appeared for the respondent on appeal and at trial, accepted that the words "in connection with" in s 30(1) are words of wide import, which allow consideration to be given to the full range of possible situations where injury to one person might harm another, including a witness at the scene, a person who observes the aftermath or who subsequently receives news of an incident. However, he contended that the wide general application of s 30(1) is limited by s 30(2) ("witnessed, at the scene"), relevantly, to require direct observation of the principal and initial causal event in which the victim is "being killed, injured or put in peril" as a result of the defendant's neglect. 94 In oral argument Mr Morris accepted that on the respondent's construction of s 30, rescuers could never recover damages for mental harm. I assume he intended by that submission to refer to rescuers who arrived at the scene of an accident after the principal and initial causal event had occurred. 95 Mr Morris contended that being "put in peril" contemplated the apprehension of an event which gave rise to a fear of immediate personal injury to the victim. He accepted that what happened in Metcalfe v Commonwealth of Australia [2008] VSCA 23 (where, after the collision between the two vessels, the plaintiff on the Melbourne saw the stern section of the Voyager, which was only a couple of metres away, drifting past and witnessed sailors jumping from the Voyager in a panicked attempt to reach the Melbourne) was "a protracted event" which could fall within s 30 because the plaintiff was at the scene, witnessing persons being put in peril. 96 Mr Morris sought support for his contentions concerning the interpretation of s 30(2) from the repeal, at the time of the enactment of Part 3 of the Civil Liability Act, of s 141 of the MAC Act which limited recovery for mental harm to a situation where the plaintiff "was, when the accident occurred, present at the scene". He contended that his interpretation of s 30(2) was consistent with a legislative intent to maintain, with respect to motor accidents, a limitation on recovery to situations where there is a direct perception of the motor vehicle accident. He also drew attention to s 32 of the Civil Liability Act 2002 (Tas) which is a substantial analogue of s 30, save that it permits recovery by those who "… witnessed, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured" (emphasis added). He submitted this demonstrated how readily an intention to permit recovery for those not at the scene of the principal causal event could have been accommodated.

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Legislative history 97 In construing s 30, it is relevant to take into consideration its context and purpose, the history of its enactment and the state of the law when it was enacted: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 22 (at 341) per Mason A-CJ, Wilson and Dawson JJ; Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 (at 30) per McHugh J. As was said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408), "the modern approach to statutory interpretation … uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [recourse to reports of law reform bodies], one may discern the statute was intended to remedy." 98 The legislative history of Part 3 of the Civil Liability Act is somewhat convoluted. 99 On 3 September 2002, the New South Wales Government released a Consultation Draft for the Civil Liability Amendment (Personal Responsibility) Bill 2002 (the "Consultation Draft"). The Consultation Draft proposed inserting into the Civil Liability Act a new Pt 13 which contained only one provision (cl 69) headed "Limitation on Damages for Nervous Shock". Clause 69, if enacted, would have limited awards of damages for psychological or psychiatric injury in respect of the death of, or injury to, a victim caused by an incident which was the fault of the defendant to the victim, a bystander or a close relative, so long as the claimant had suffered a "demonstrable psychological or psychiatric injury and not merely a normal emotional or cultural grief reaction". "Bystander" was defined to mean "a person (other than the victim) who was present at the scene of the incident giving rise to a claim when the incident occurred". (emphasis added). 100 On 5 September 2002, in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317, the High Court held that the "direct perception of an incident or its aftermath [was] not in all cases a necessary aspect of a claim for damages for negligently inflicted psychiatric injury": see Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 (at [5]) per Gleeson CJ, (at [45]) per McHugh J, (at [65], [82] - [83]) per Gummow and Kirby JJ. 101 The High Court's decision in Gifford was handed down after the passage of the Personal Responsibility Act. However it upheld the decision in Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175; (2001) 51 NSWLR 606 to the extent that, in that case, the Court of Appeal held that s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (the "1944 Act") which I discuss below, did not have the effect of excluding the liability of the respondent employer to its deceased employee's children for nervous shock to the extent such liability otherwise existed at common law: Gifford (at [23]) per Gleeson CJ; (at [27]) per McHugh J; (at [79] - [81]) per Gummow and Kirby JJ (Hayne J agreeing (at [96])); (at [131]) per Callinan J. 102 Three weeks after the decision in Tame, on 30 September 2002, the report entitled Review of the Law of Negligence, (Commonwealth of Australia, Final Report, Canberra, 2002) prepared by a Panel appointed by the Commonwealth and State governments and chaired by Justice David Ipp (the "Ipp Report") was delivered. The Panel's Terms of Reference required it to "[i]nquire into the application, effectiveness and operation of common law principles applied in negligence to limit liability arising from personal injury or death" including "allowing individuals to assume risk": Ipp Report, (at ix). 103 The Ipp Report discussed Tame, pointing out (at 9.12) that control mechanisms hitherto established by the common law to limit the circumstances in which a duty to take care to avoid causing mental harm had been jettisoned "as preconditions". It pointed out that Tame appeared to establish the "fundamental proposition" that "reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care [and] will be owed to the plaintiff only if it was foreseeable that a person of 'normal fortitude' might suffer mental harm in the circumstances of the case if care was not taken" (at 9.13). It discussed (at 9.14) what the phrase "the circumstances of the case" might include relevantly, for present purposes, "whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses". 104 The Ipp Report considered (at 9.19 - 9.28) whether there should be further restrictions on liability for pure mental harm. In considering that question the Ipp Report referred (at 9.20 - 9.21) to s 4 of the 1944 Act and s 141 of the MAC Act and (at 9.22) to the proposal in cl 69 of the Consultation Draft to a "bystander" being able to recover damages for pure mental harm. It noted (at 9.24) that "an important reason why such limitations on liability [that is to say those found in s 4, s 141 and proposed cl 69] had been abandoned by the common law" was that they appeared to many "to be arbitrary and unprincipled, and that their only aim and effect [was] to limit the potential number of claims for pure mental harm". While the Ipp Report contemplated (at 9.25) further limiting liability for pure mental harm to those in a particular relationship with the victim, the authors were of the view (at 9.26) that "the 'list of eligible relationships' approach imposed 'unnecessarily restrictive limitations on liability for pure mental harm in light of the emphasis ... now placed by the common law on the concept of a person of normal fortitude, coupled with the increased emphasis on reasonableness" referred to in the Report's Recommendation 28, which, in the authors' view "should have the effect of significantly limiting the scope of liability for mental harm in a way that is both principled and consistent with the objectives of the Terms of Reference". 105 The Ipp Report concluded (at 9.27) that it would not recommend an eligible relationships approach because of the difficulty of devising a list of such relationships in a "principled way". In the event that governments thought that approach desirable, a list was suggested (at 9.27) which is in substantially the same terms as the s 30(5) definition of a "close member of the family of a victim". The class identified in s 30(5) might be seen those contemporary society recognises as being in the sort of close and loving relationship with the victim discussed by McHugh J in Gifford (at [48] - [50]) as well as those whose relationship with the victim attracts the "neighbourhood" principle: Gifford (at [51]) per McHugh J, (at [86]) per Gummow and Kirby JJ. 106 The Ipp Report expressed the view that the objectives of the Terms of Reference would be promoted by a legislative statement of the current state of the law as to when a duty was owed to take care to avoid pure mental harm. Recommendation 34 set out its conclusions as to the principles which should be included in the proposed Act in relation to mental harm. It is unnecessary to set out the Recommendation verbatim, however it is relevant to note that the circumstances the Ipp Report suggested for consideration in determining whether a duty of care not to cause mental harm was to be imposed included the control mechanisms discarded in Tame as preconditions for liability, but not excluded as relevant to the question whether a duty of care was owed: Tame (at [18]) per Gleeson CJ; (at [51], [52], [66]) per Gaudron J; (at [196], [213], [225]) per Gummow and Kirby JJ. 107 In the Second Reading Speech for the Bill which became the Personal Responsibility Act, the Premier, the Hon R Carr MLA, relevantly explained that most of the changes in the Bill implemented or drew on the recommendations in the Ipp Report: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002, at 5764. He observed that the Personal Responsibility Bill differed from the Consultation Draft. Dealing with the recovery of damages for mental harm, the Premier said: "The Ipp Report recommended codifying the law in relation to mental harm. The bill follows these recommendations. Instead of using the imprecise term 'nervous shock', the bill will provide that damages are only recoverable for a recognised psychiatric illness. The bill also provides that the only people who can recover for mental harm are victims of the negligence, people present at an accident scene , or a family member of a victim." (Emphasis added) 108 The Personal Responsibility Act repealed Part 3 of the 1944 Act. Section 3 of that Act, which was found in Part 3, had provided: "3 Personal injury arising from mental or nervous shock

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s 32(2)(b) provides as one of the matters included in the "circumstances of the case": "Whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril". 115 It is difficult to understand, however, the contention in the Premier's Second Reading Speech that the mental harm provisions followed the Ipp Report recommendations. As will be apparent from the foregoing discussion, the Ipp Report did not contemplate a provision such as s 30, rejecting the sort of limitations it purports to imposes as "arbitrary and unprincipled". 116 The other States and Territories of Australia have, by and large, enacted legislation apparently modelled on the Ipp Report. However only Tasmania, South Australia and Victoria contains provisions conceptually similar to s 30. Other jurisdictions have adopted a form of Recommendation 34 by enacting a "mental harm - duty of care provision" none which include the words "aftermath" or "immediate aftermath": see Civil Law (Wrongs) Act 2002 (ACT) s 34(2)(b); s 34, Civil Liability Act 2002 (Tas); Civil Liability Act 2002 (WA) s 5S(2)(b). Queensland enacted the Civil Liability Act 2003 (Qld), but it does not contain any reference to recovery for mental harm, recovery of damages for such apparently being left, subject to other provisions of the Queensland Act, to the common law. 117 Section 32 of the Tasmanian Act to which the respondent drew the Court's attention deals with limitation on recovery from pure mental harm arising from shock. It is similar to s 30 of the Civil Liability Act, save that it includes within the class of potential claimants, persons who "witnessed … the immediate aftermath" of the "victim being killed, injured or put in peril". There is no definition of "immediate aftermath". Once a plaintiff whose case is governed by the Tasmanian Act satisfies the s 32 threshold, the circumstances of the case to be considered for the purposes of determining pursuant to s 34 of that Act whether a duty of care was owed do not expressly include the plaintiff having been a witness to the victim's suffering. 118 Section 33 of the Civil Liability Act 1936 (SA) deals with when a duty of care will arise in a mental harm case and, to some extent, reflects s 32 of the New South Wales Act. In particular, s 33(2)(ii) is in the same terms as s 32(2)(b). However, s 53(1)(a) provides that damages for mental harm may only be awarded if, inter alia, "the injured person … was present at the scene of the accident when the accident occurred". 119 Section 72 of the Wrongs Act 1958 (Vic) likewise bears strong textual similarity to s 32 of the New South Wales Act, with s 72(2)(b) being in the same terms as s 32(2)(b). Section 73(2)(a) is in the same terms as s 30(2)(a). 120 As Dr Des Butler has observed ("Gifford v Strang and the new landscape for recovery for psychiatric injury in Australia", 12 Torts Law Journal 108 (at 127)) "… the law governing psychiatric claims in Australia has never been more divided". This is an unpromising climate in which to entertain Mr Morris's submission that the interpretation of s 30(2)(a) should be influenced by s 32 of the Tasmanian Act, particularly when, as the foregoing analysis reveals, the New South Wales legislature had not repeated the phrase found in s 141(a)(ii) of the MAC Act "when the accident occurred, present at the scene of the accident" and had eschewed the "bystander" definition, which was to similar effect, in cl 69 of the Consultation Draft 121 Counsels' researches did not identify any case in which the provision in other jurisdictions comparable to s 32(2)(b) has been considered, nor one in which the concept of "immediate aftermath" in s 32(2)(a) of the Tasmanian Act has been considered, although that concept was, of course, discussed in Tame (at [17] - [18]) per Gleeson CJ, (at [49]) per Gaudron J, (at [182], [187] - [191], [214] - [225]) per Gummow and Kirby JJ, (at [308], [365]) per Callinan J.

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Section 4 of the 1944 Act 122 The circumstances in which s 4 of the 1944 Act was enacted provide some insight into the interpretation of s 30. 123 Section 4 of the 1944 Act was passed to remedy the effect of two decisions: Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1 and Bourhill v Young [1943] AC 92: Gifford (at [34]) per McHugh J; (at [73] - [75]) per Gummow and Kirby JJ. 124 In Chester, as McHugh J explained in Gifford (at [34]), the High Court held that a mother who had suffered shock after seeing the dead body of her missing son in a trench under the control of the Council could not bring an action for nervous shock. In Bourhill, the House of Lords reached the same conclusion in relation to a woman who, while unloading a basket from a platform on the other side of a nearby stationary tram, suffered nervous shock after hearing a motorcyclist collide with a motor vehicle. 125 The decision in Bourhill was delivered while the New South Wales Legislative Council was considering the Law Reform (Torts) Bill 1942 which was intended to overcome the decision in Chester. However, as a result of Bourhill, the Legislative Assembly was concerned that even if that Bill became law, Mrs Chester would still have failed. Accordingly, the Law Reform (Torts) Bill, which had originally only included a provision in terms of s 3 of the 1944 Act was abandoned and the Bill which became the 1944 Act was introduced: see D Butler, "Nervous Shock at Common Law" (1996) 4 Torts Law Journal 120 (at 121 - 124). 126 Section 4 adopted "the same definition of 'relatives' as appeared in the Compensation to Relatives Act, on the basis that that degree of relationship had already been recognised by Parliament for other purposes": D Butler, op cit (at 123). I note parenthetically that s 4 of the Compensation to Relatives Act 1897 (NSW) has not been amended to reflect s 30(5). 127 According to McHugh J (Gifford (at [34])), "in the Second Reading Speech on the Law Reform (Miscellaneous Provisions) Bill in the Legislative Council, the Minister for Justice said that s 4 was 'a statutory extension of liability to meet the position created by the decision in [Bourhill] v Young ... It creates no new substantive right of action.' " As Gummow and Kirby JJ (Gifford (at [76] - [77])) explained, at this stage, "[c]lause 4 … drew no distinction between a parent or spouse of a person killed, injured or put in peril and any other family member". It was then amended to the form in which it was passed under which "the liability of a defendant would 'extend to include' liability for 'nervous shock' sustained by a relevant family member where the initial victim 'was killed, injured or put in peril within the sight or hearing of such member of the family'". According to the parliamentary record, (Gifford (at [78])): "…[T]he amendment embodied a compromise between the interests of family members who sustain 'nervous shock' and the community which ultimately would bear the obligation that any extension of liability was thought to entail. The compromise was said to be that, in order to recover under the statute, 'farther removed relatives' would be subject to the additional requirement, not imposed on a parent or spouse, of proving that the relevant death, injury or imperilment occurred within their sight or hearing …." (Emphasis added) 128 Section 4 was beneficial and remedial legislation. Gummow and Kirby JJ (Gifford, at [81]) described it as "a statutory extension of, and attempt to remedy a perceived deficiency in, the common law" and pointed out that: "The mischief at which s 4(1) was directed was the apparent rigidity, or incomplete development, in the common law which was seen as unjustly disfavouring the position of plaintiff family members in 'nervous shock' actions. Remedial legislation of this nature is not to be construed as frustrating the further development of common law principle and any corresponding expansion of common law rights which that development may involve. Some analogy is provided by the requirement of legislation for clear terms to abolish or modify fundamental common law principles or rights or to depart from the general system of law." 129 It is pertinent to note, as Callinan J did in Gifford (at [128]), that s 4 stood unaltered for fifty-nine years (before its repeal in 2002), despite the decisions in Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153 and Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, "each decision extending the liability of defendants and both widely regarded at the time of their pronouncement as doing so". 130 The final word on s 4 should go to Mr Butler whose description of the section's legislative history in his article on "Nervous Shock at Common Law" (op cit) was referred to with approval by Gleeson CJ in Gifford (at [14]). Mr Butler concluded (at 124) that it was apparent from s 4 that Evatt J's views in Chester "rather than those of the majority more accurately reflected the community's attitude, as represented by the legislature" and that s 4 "was designed to update the law in New South Wales to align it more with the more expansive common law approach in England, as typified by cases such as Hambrook v Stokes Bros [1925] 1 KB 141 and Owens v Liverpool Corporation [1939] 1 KB 394".

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Being put in peril 131 To put someone "in peril" is to expose that person to "[t]he position or condition of being imminently exposed to the chance of injury, loss, or destruction; risk, jeopardy, danger": Oxford English Dictionary online. The Macquarie Dictionary gives a similar definition. 132 Neither party referred the Court to any case expressly dealing with the collocation of words "put in peril" in a statutory context. Mr Gross submitted that the primary judge erred (at [78]) by referring to the dictionary meaning of "peril" as connoting "being exposed to serious and immediate danger." I accept that the primary judge's connotation was a gloss on the dictionary definition, but as Repatriation Commission v Thompson (1988) 44 FCR 20 indicates, that does not necessarily mean it was an unwarranted gloss. 133 In Thompson (at 22 - 23) the Full Federal Court (Davies, Wilcox and Foster JJ) when dealing with the question whether a person had "incurred danger from hostile forces of the enemy … " in s 36(a)(i) of the Veterans' Entitlements Act 1986 (Cth), observed that in applying such a provision it was desirable to eschew the use of adverbs and adjectives, and that a word such as "danger" stood for itself. In their Honours' view, statutory provisions "which use[d] unambiguous words in their ordinary meaning ought not to be applied by substituting other terms for the term which a statutory provision itself uses." Having said that, their Honours referred to the dictionary meaning of "danger" in the Shorter Oxford Dictionary and the Macquarie Dictionary, then said (at 23 - 24): "The words 'incurred danger' therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words 'incur danger' do not encompass a situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.

[85]

The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense." 134 Mr Morris submitted that Hambrook v Stokes Bros [1925] 1 KB 141 illustrated the concept of being "put in peril". The headnote to Hambrook indicates that the defendant's employee had left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff's wife had been walking up the street with her children and had just parted with them a little below a point where the street made a bend when she saw the lorry rushing around the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight and who she knew must have met the lorry in its travels. She was almost immediately afterwards told by bystanders that a child answering the description of one of hers had been injured. As a consequence of her fright and anxiety she suffered a nervous shock which eventually caused her death. Her husband was successful in an action for the loss of benefit of her services brought pursuant to the Fatal Accidents Act 1846 (UK). Bankes and Atkin LJJ (Sargant LJ dissenting) held that on the assumption that the deceased's shock was caused by what she saw with her own eyes as distinct from what she was told by bystanders, her husband was entitled to recover notwithstanding that the shock was brought about by fear for her children's safety and not by fear for her own. 135 In Chester (at 21), Evatt J described Hambrook as an "epoch-making decision". He comprehensively analysed the principles which underlay it in reaching his dissenting view that Mrs Chester should have been able to recover damages for nervous shock as a result of her son drowning, even though she was not present when that tragedy occurred. As Gleeson CJ explained in Gifford (at [15]) Evatt J considered that Mrs Chester's case "fell within the principles relating to search and rescue, and that the council's duty of care to the mother was owed because, although she was not at the scene of the accident when the child was drowned, she came there soon afterwards in search of the child and might have been a participant in a possible rescue." Gleeson CJ also noted (at [17]) that it was apparent from Evatt J's reasoning in Chester that s 4 of the 1944 Act did not cover the entire range of persons who, as the common law stood in 1944, might have sued for "nervous shock" and, in particular, did not cover rescuers who were not family members. His Honour then referred, with apparent approval, to Chadwick v British Railways Board [1967] 2 All ER 945, observing that it did not represent a development in the common law but reflected the principles Evatt J said should have been applied in Chester. 136 In Chadwick, the defendant was found liable to C, a member of the public, for nervous shock caused by his participation in the rescue of passengers involved in a collision between two railway trains. Waller J described the scene which confronted C (as described by an injured passenger, C having died when the matter came to trial, the action having been continued by his widow) as follows (at 948): "Mrs Taylor, who was a passenger in one of the trains and who sustained dislocated hips, a fractured pelvis, a fractured thigh and severely lacerated legs, gave evidence and described how she was trapped up to the waist as a result of this accident. She said that there was a young girl beside her and a man suspended above her on his hands taking his weight. There was another railway carriage on top and a young girl hanging out of the window screaming. Mrs Taylor was afraid that the other carriage would come on top of her. Then, she said, Mr Chadwick came; he was cheerful and gave comfort to Mrs Taylor. After going round to the other side, he told Mrs Taylor that her legs were broken, and then a light was produced and Mrs Taylor saw above her a girl impaled on a girder and saw her own left leg was, as she said, mangled and scarlet with blood. In another phrase, she described herself as being on a sea of bodies, including a man underneath her who was dead, and she also described how there was a hand sticking out which caught hold of Mr Chadwick's jaw as he went past. Mr Chadwick was a fairly small man, and the doctor who was attending at that particular part of the accident used Mr Chadwick to crawl into the wreckage where he, the doctor, was too big to go and he got Mr Chadwick to give an injection to Mrs Taylor. In spite of the great time difficulty, I am quite satisfied that Mrs Taylor was giving an accurate account and that the scene of this catastrophe was such as would not normally be seen. During the time that Mrs Taylor saw him, she described Mr Chadwick as a most courageous man, very cheerful and encouraging, who allayed the fears of those around Mrs Taylor." (Emphasis added) In his Honour's view (at 949): "… [A]lthough there was clearly an element of personal danger in what Mr Chadwick was doing, I think that I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction." 137 He held (at 951 - 952) that as a result of the defendants' negligence "passengers were injured and put in peril", that that was foreseeable as, too, was the fact that somebody might try and rescue passengers and suffer injury in the process. He described (at 953) the mental illness from which C suffered as a result of his exposure to the outcome of the collision as "catastrophic neurosis", which according to medical evidence in the case was a "common accompaniment of catastrophes" - and which today would probably be classified as PTSD: Frost v Chief Constable of South Yorkshire Police; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1999] 1 All ER 1 (at 484) per Lord Goff of Chieveley. 138 In Frost (at 484) Lord Goff (who dissented) described Chadwick as "wholly exceptional", apparently on the basis that he perceived it as a case in which a duty of care was held to be owed to a person bringing aid and comfort to victims rather than to a rescuer. With respect to Lord Goff, it is apparent from the passages cited above, that Waller J treated Mr Chadwick as a rescuer, as Lord Griffiths (at 465) and Lord Steyn (at 499) accepted. And, it should be noted, Lord Goff (at 486) treated Chadwick as in the rescuer category of cases concerning recovery for psychiatric injury. Chadwick was, as his Lordship observed (at 486 - 487), approved, without qualification, in McLoughlin v O'Brian [1983] 1 AC 410 (at 419) per Lord Wilberforce, (at 424) per Lord Edmund-Davies, and (at 437 - 8) per Lord Bridge of Harwich, and in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (at 408) per Lord Oliver. 139 Lord Hoffmann (Frost at 508 - 509) appeared to accept Chadwick as a rescuer case, although he also accepted as an ex post facto rationalisation of Chadwick, that offered in the Court of Appeal in McLoughlin v O'Brian [1981] 1 QB 599 (at 622) by Lord Griffiths, (the successful counsel for Mr Chadwick's widow), that "Mr Chadwick might have been injured by a wrecked carriage collapsing on him as he worked among the injured [and a] duty of care is owed to a rescuer in such circumstances".

[86]

Conclusion on s 30 140 The respondent's submissions, in substance, were that s 30 should be read restrictively, so as to exclude from the class of persons who could recover damages for pure mental harm all but those on the scene at the time of the critical initial event leading to a victim being killed, injured or put in peril. 141 There are aspects of the Civil Liability Act which would lend comfort to a restrictive interpretation of s 30. In terms its purpose is to limit the class of persons who can claim damages for pure mental harm in the circumstances there set out. That, at least, bears some relationship to the principles which underlay the Ipp Report, deriving from the Terms of Reference. It also appears in the immediate context of provisions the purpose of which is also to circumscribe recovery for such harm. Section 30(3) which reduces recovery to the extent to which the victim is guilty of contributory negligence and s 31 requiring demonstration of a recognised psychiatric illness for liability for damages for pure mental harm. 142 Section 32 limits the circumstances in which a person owes a duty of care to another person to take care not to cause that other person mental harm. It reflects other provisions in the Civil Liability Act to which I have earlier referred which also restrict the circumstances in which a duty of care arises. However, these provisions appear in other Parts of the Act. The respective Parts of the Act deal with distinct matters and, just as nothing suggests that the terminology in one Part is intended to bear the same meaning wherever deployed (State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 (at [6]) per Spigelman CJ; Basten JA agreeing (at [214])), so, too, the contextual implications, if any, which can be drawn from the appearance of those provisions in other Parts insofar as Part 3 is concerned appears weak. 143 For the reasons which follow, the proposition that s 30 should be read restrictively or narrowly should not be taken too far - and not to the extent for which the respondent contends. 144 First, s 30 does not prescribe a temporal relationship between the events the class of potential claimants must have witnessed and the event that triggered them. It does not in terms require the plaintiff to be at the scene when the relevant "act or omission" occurs, only when the victim is "being killed, injured or put in peril". Nor does it refer to any "accident" per se, but, rather, to the "scene" of the event relevant to establish entitlement to make a claim. 145 Examples can readily be brought to mind in which an accident may occur, for example the collision of motor vehicles, in which the victim is neither killed nor injured at the moment of impact but, because of the circumstances of the collision, is "being … put in peril" until rescue because of the danger of the motor vehicle exploding. Should rescue attempts fail and the victim be killed or injured in an explosion after the immediate impact, those present would witness the victim "being killed, or injured…". An example more immediately relevant to the derailment in this case, would be if one of the carriages containing passengers had been left teetering on the edge of a cliff so that when the rescuers arrived they observed passengers "being … put in peril" if the carriage plunged over the cliff. Or, to take an illustration from Chadwick, if victims in one carriage were "being … put in peril" because another carriage might crash onto them. These situations are all capable of falling within s 30(2). It is not helpful, in that context, in my view, to read into s 30(2)(a) concepts such as "immediate aftermath" or "aftermath", or interpret s 30(2)(a) by reference to them. Whether or not the circumstances fall within s 30(2)(a) is a question of fact to be determined in each case. 146 Secondly, the history of the drafting and enactment of Part 3 is, as I have explained, chequered, but s 30 bears a close relationship to s 4 of the 1944 Act which as I have said was remedial legislation intended to overcome the limiting effects of Chester and Bourhill (and, as Mr Butler pointed out Hambrook) albeit at the time only in favour of family members. To that extent s 30(2)(a) reflects legislation intended to confer rights upon people even though they did not witness what the respondent has described as the principal causal event. 147 The respondent's attempt to gain solace from the simultaneous repeal at the time of the passage of the Personal Responsibility Act of s 141 of the MAC Act is, in my view, inapt. The submission ignores the fact that s 30 is not limited to motor vehicle accidents. It also pays no regard to the fact that s 30(2)(a) does not adopt the form of words used in s 141(a)(ii) of the MAC Act ("when the accident occurred, present at the scene of the accident") but rather, substantially adopted the form of words in s 4(1)(b) of the 1944 Act. Indeed, the fact that the legislature did not repeat the phrase found in s 141(a)(ii) of the MAC Act "when the accident occurred, present at the scene of the accident" and eschewed the "bystander" definition found in cl 69 of the Consultation Draft gives strong support for the proposition that the legislature did not intend that a plaintiff seeking to satisfy the s 30(2)(a) threshold had to witness the principal causal event. 148 Thirdly, although it was introduced as part of a Bill directed to "personal responsibility", little in the circumstances to which s 30 is directed could be avoided by the application of that concept, particularly in the case of the secondary victims it contemplates. To the extent the notion of personal responsibility (of the victim) is reflected at all in Part 3, it finds expression in the reduction of any damages awarded to the plaintiff for pure mental harm in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim: s 30(3). 149 Fourthly, Part 3, ss 31 and 33 use the term "harm" in a sense which, it has been suggested, may be broader than that of "personal injury" and appear to leave to the general law the question whether a person may recover damages for non-economic loss for consequential mental harm, which does not consist of a recognised psychiatric illness: Ibbett (at [213] - [214]) per Basten JA. 150 In my view, s 30(2)(a) can be read in the manner for which the appellants contend. It is not necessary for a person seeking to satisfy s 30(2)(a) to have been present at the time of the principal causal event, in this case the derailment. The question whether the putative plaintiff witnessed the events described in s 30(2)(a) falls for objective factual determination in each case.

[87]

The primary judge's approach 151 Malpass As-J held (at [76] - [77]) that the words "at the scene" in s 30(2)(a) were "referable to the scene of the shocking events brought about by the defendant's acts or omission during which the victim is killed or injured or put in peril", so that, in order to recover damages, a plaintiff had to "witness, at that scene, the victim being killed, injured or put in peril". For the purposes of the present case he held that the "scene" was "that of the accident involving the derailment", but did not refer "to what happened thereafter (which may be conveniently referred to as the aftermath)". He concluded (at [78]) that the meaning of the expression "to be put in peril" should be determined by reference to the dictionary meaning which he said "connotes being exposed to serious and immediate danger" and the statutory context which "suggest[ed] that the words were intended to pick up persons who were neither killed nor injured but were exposed to serious and immediate danger of being either killed or injured". He added that he did not consider the words connoted "mere possibilities", but that there had "to be a witnessing involving an actual state of peril". 152 His Honour (at [76]) was assisted in reaching his conclusion about the meaning of s 30(2)(a) by the reference in the Second Reading Speech to "people present at the accident scene". However the words of the Second Reading Speech must not be substituted for the text of the law: Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 (at 518) per Mason CJ, Wilson and Dawson JJ; see also Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 ([12] - [14]) per Spigelman CJ, (Beazley JA agreeing); (at [162] - [173]) per Mason P, (Beazley and Giles JJA agreeing). As I have observed, the word "accident" does not appear in s 30 nor, in any event, even if that word were to be read into s 30, is there a temporal connection requirement to the original "shocking events". 153 His Honour also held (at [79]) that neither plaintiff was present whilst passengers were "killed, injured or put in peril in the accident" but (at [80]) that they were "exposed to the post-accident wreckage and carnage" which his Honour again described as "the aftermath of the accident". He also held (at [81] - [82]) that even if his view as to meaning of "the scene" were incorrect, the evidence did not demonstrate that either of the plaintiffs witnessed any passengers being put in peril. 154 I agree with the primary judge (at [78]) that a putative plaintiff had to witness something involving "an actual state of peril". However, I do not understand, in that context, his Honour's dismissal of the prospect that that may involve "mere possibilities". Inherent in the concept of a person "being…put in peril" is the possibility that that person may be killed or injured. I would accept that his Honour's allusion may have been correct if he was intending to apply a de minimis rule (Repatriation Commission v Thompson (at 23 - 24)) or one which excludes trivial or peripheral matter: cf Frost (at 465) per Lord Griffiths. 155 In my view his Honour erred in concluding that the appellants' claims failed at the outset because they were not present when the derailment occurred. Section 30 factual conclusion 156 Beazley JA has summarised the evidence of what the appellants saw and heard at the derailment scene. Both appellants saw dead and injured victims. Both were concerned that the condition of the injured might deteriorate if medical treatment was not administered expeditiously. Both also saw fallen power lines draped over the carriages in places. Senior Constable Sheehan's affidavit of 13 September 2006 made only one reference to the power lines to the effect that, mindful of their presence, he took a route to the carriage nearest Wollongong that avoided their presence. In his Police Statement of 15 March 2003 he said that when he saw the power lines he had a conversation "with police radio … and informed them of the number of deceased and to ascertain if the power was off". He was not asked any questions in chief or cross-examination about the power lines. 157 Senior Constable Wicks' affidavit of 11 September 2006 said that when he and other police arrived at the scene: "There was a clear problem, that is the overhead wires were down and were draped over the various parts of the train, the railway lines, and the stanchions. It was not clear by observing whether the lines were still charged with electricity or whether the electricity had been cut off from them or the lines were otherwise not in a dangerous condition. We were unable to obtain confirmation of the situation by radio. I noticed a passenger touching a piece of metal on the train and I made a decision that the train was electrically safe." 158 He said that the conflicting information received "during this early part" as to whether the lines were potentially charged or not "[t]o some degree … caused hesitation in the attempt by the rescue workers to immediately gain access to the overturned carriages and the crushed carriages at the front." 159 Senior Constable Wicks was not asked any questions in chief or cross-examination about the power lines. 160 The appellant's written submissions described the power lines as representing to Senior Constable Sheehan, "at least temporarily, peril to the train passengers". It was contended that the uncertainty as to whether or not the power lines were live "caused hesitation in the attempts by the rescue workers to immediately gain access to the … carriages". In my view, this conclusion was only available in relation to Senior Constable Wicks. 161 Neither appellant gave evidence that he was concerned about the risk the power lines posed to the victims. Rather, the evidence appears to disclose a justifiable concern that if the power lines were live, entry to the railway carriages posed a risk to the rescuers. In my view the primary judge was correct to conclude that the evidence concerning the power lines did not disclose observations by either appellant of the victims of the derailment "being …. put in peril". 162 I would also reject the appellants' contention that the possibility that the victims' conditions may deteriorate either during the rescue operation or if medical attention was not promptly administered, constituted witnessing a victim "being … put in peril". Those being rescued had already been injured. Their causes of action had accrued: Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (at 561) per Brennan J; (at 587) per Deane J; see also Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 (at [218]) per Crennan J (Gleeson CJ, Gummow and Heydon JJ agreeing). 163 In my view the evidence that the victims' conditions may deteriorate did not constitute them "being put in peril" in the sense for which s 30(2)(a) provides. They had been injured and, like all in that position, required expeditious medical treatment. But they were not exposed to a danger which was a sequelae of the derailment in the sense that some aspect of the derailed train and/or the surrounding environment posed a danger. While a deterioration in their condition was a continuation of their original injury the evidence did not objectively demonstrate that they were imminently exposed to further injury.

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