Sheehan v SRA; Wicks v SRA [2009] NSWCA 261

Court of Appeal (NSW)|2009-08-31|Before: Beazley JA, Giles JA, McColl JA

Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57

Blaxter v Commonwealth of Australia [2008] NSWCA 87

Bourhill v Young [1942] UKHL 5; [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

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 [1998] UKHL 45; [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

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

McLoughlin v O'Brian [1982] UKHL 3; [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

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

D Butler, "Gifford v Strang and the new landscape for recovery for psychiatric injury in Australia", 12 Torts Law Journal 108

D Butler, "Nervous Shock at Common Law" (1996) 4 Torts Law Journal 120

Review of the Law of Negligence Final Report (Chairman the Hon Justice David Ipp), September 2002

Phillip Kevin Sheehan v State Rail Authority of New South Wales known as State Rail

David Colin Wicks v State Rail Authority of New South Wales known as State Rail

The appellants were both serving police officers who attended the scene of an horrific train derailment at Waterfall, south of Sydney, in which seven people were killed and many were injured. They were among the first people at the scene following the derailment and were involved in the rescue operation by providing emergency first-aid, assisting the injured from the carriages and reassuring those awaiting medical assistance. The appellants each brought a claim for damages against State Rail alleging he had suffered psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure the train's "deadman's" safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver.

The primary issue before the trial judge, Associate Justice Malpass, was whether the appellants satisfied the Civil Liability Act 2002, s 30(2)(a) and s 32(2)(b) in that they had witnessed, at the scene of the derailment, a person "being killed, injured or put in peril". His Honour held that neither appellant satisfied the Civil Liability Act, s 30(2)(a) and s 32(2)(b) and that neither were entitled to damages for pure mental harm. The appellants appealed.

(1) For a person to satisfy the Civil Liability Act, s 30(2)(a) and s 32(2)(b), the person must witness something at the scene. Observations via other means, such as the media, are not sufficient: [68].

(2) For a person to satisfy the Civil Liability Act, s 30(2)(a) and s 32(2)(b), that person must directly observe the causal event whereby another person is being killed, injured or put in peril: [68].

(3) The Civil Liability Act, s 30(2)(a) and s 32(2)(b) do not extend to persons, including those persons who assist in the rescue process, who come upon the scene after the incident in which a person was killed, injured or put in peril is over: [77] .

Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290 (referred to)

Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 (referred to)

Harrison v Melham [2008] NSWCA 67 (considered)

Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 (considered)

Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 (referred to)

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289 (referred to)

Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57 (referred to)

Pepper v Hart [1992] UKHL 3; [1993] AC 593 (referred to)

R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45 (referred to)

Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 (considered)

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (referred to)

Blaxter v Commonwealth of Australia [2008] NSWCA 87 (considered)

Metcalfe v Commonwealth of Australia [2008] VSCA 23; (2008) Aust Tort Reports 81-934 (considered)

(4) The Civil Liability Act, s 30(2)(a) and s 32(2)(b) may extend to persons who come upon the scene after the incident in which a person was killed, injured or put in peril is over if that person witness, at the scene, a further incident or consequential event in which a person is "killed, injured or put in peril": [64] and [75]-[76].

(5) 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 which the victim is "being killed, injured or put in peril": [150]

(6) Legislative history of Part 3 of the Civil Liability Act discussed: [97]-[139]

Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1; Bourhill v Young [1942] UKHL 5; [1943] AC 92; Hambrook v Stokes Bros [1925] 1 KB 141; Chadwick v British Railways Board [1967] 2 All ER 945; Repatriation Commission v Thompson (1988) 44 FCR 20; Frost v Chief Constable of South Yorkshire; White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455; Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269; State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168 (considered)

McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410; Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 (referred to)

Phillip Kevin Sheehan v State Rail Authority of New South Wales known as State Rail

David Colin Wicks v State Rail Authority of New South Wales known as State Rail

1 BEAZLEY JA: The appellants were both serving police officers who attended the scene of an horrific train derailment at Waterfall, south of Sydney, on 31 January 2003. Seven people were killed in the accident and many were injured. The appellants each brought a claim against State Rail for damages for psychiatric injury he alleged he had suffered due to the negligence of State Rail in failing, inter alia, to ensure the "deadman's" safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver.

2 The matter proceeded before Associate Justice Malpass on the following agreed issues:

1. Did State Rail owe each appellant, a rescuer, a duty of care?

2. Did each appellant witness at the scene victims of the derailment being killed, injured, or put in peril, in accordance with the Civil Liability Act 2002, s 30(2)?

3. Did each appellant's attendance at the derailment cause him to suffer a recognisable psychiatric illness? If so, what is the nature of that illness?

3 Questions of the quantum of damages, if any, to which each appellant was entitled and the application of the Workers Compensation Act 1987, s 151Z were deferred pending determination of the above issues.

4 There is a dispute between the parties as to whether Malpass AsJ answered the first question. I will return to that later. His Honour, at [75], answered the second question against the appellants on the basis that neither "witnessed, at the scene, the victim being killed, injured or put in peril", as required by the Civil Liability Act, s 30(2)(a). As this determination meant that the appellants were not entitled to damages, his Honour did not determine the third question.

5 The appellants accepted that their claims were governed by the Civil Liability Act, Pt 3, "Mental Harm": see ss 27-33. Part 3 was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002. The primary issue on the appeal was whether the appellants satisfied the Civil Liability Act, s 30(2)(a) and s 32(2)(b), so as to be entitled to damages. This in turn raised the proper construction of these two provisions.

6 The factual circumstances giving rise to the appellants' claims were not in dispute. An account of the accident was recorded in the Commissioner of Police's Commendation for Courage awarded to Leading Senior Constable Sheehan. The Commendation stated:

"About 7.14 am on Friday 31 January 2003 a south-bound four carriage Tangara train with forty-four people on board derailed two kilometres south of the Waterfall Railway Station, resulting in the deaths of seven people and injuries to a number of survivors.

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.

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 [1998] UKHL 45; [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] EWCA Civ 4; [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.

...

[O]bviously, a rescuer will normally come on the scene after the disastrous event has occurred. It is most unlikely that he will be involved in that event itself. He is involved in the aftermath of that event, and is concerned with its consequences. That involvement is, however, sufficient to bring him within the category of primary victims, so far as liability for psychiatric injury is concerned: see Alcock's case [1991] 4 All ER 907 at 923[1991] UKHL 5; , [1992] 1 AC 310 at 408 per Lord Oliver of Aylmerton."

35 Lord Goff was in dissent and would have allowed the claims of the police officers. Lord Steyn, at 499, who was in the majority, considered that the duty owed to rescuers had to be kept within reasonable bounds and a rescuer was only entitled to recover if the rescuer had, or reasonably believed they had, exposed themself to physical danger. In his judgment, Lord Hoffmann took a similar approach. Lord Browne-Wilkinson agreed with Lords Steyn and Hoffmann.

36 The respondent submitted that Frost highlighted the difficulties that rescuers, and more particularly police officers, have had in recovering damages. Senior counsel referred only to the comments of Lord Goff reproduced above. The point of the respondent's reference to these comments, as I understand it, is that in this area of the law, boundary lines are drawn, and the question then becomes upon which side of the line a particular plaintiff falls. The case illustrated a boundary whereby a rescuer could recover following involvement in the aftermath of the event caused by the tortfeasor. In New South Wales, however, the legislature has drawn the boundary line at those who witnessed death, injury and peril as it happened during the course of the incident and not as part of the aftermath. It was submitted that that was the clear meaning of the phrase "the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril" in s 30(2)(a) and of the like phrase in s 32(2)(b).

37 It is also convenient, before considering the provisions of the Civil Liability Act, to refer to relevant principles of statutory construction. This need only be done in brief terms, as neither party invoked any particular principle of statutory construction in aid of their respective arguments. As I understand the approach of each, it was that the express words of the section bore their ordinary meaning. They differed, however, as to what that ordinary meaning was. Neither party suggested that the provision should be construed on the basis that Parliament does not intend to alter or restrict fundamental rights, freedoms and immunities: Malika Holdings Pty Ltd v Stretton [2001] HCA 14; (2001) 204 CLR 290; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36] per McHugh J; and Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380.

38 In Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ stated:

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'."

39 In Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 at [143]- [147], Kirby J re-emphasised the duty of courts to obey the legislative text and indicated that it is not permissible to adhere to pre-existing common law doctrines in the face of a statute. There are many cases that affirm this principle: see, for example, Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289 and Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57 at [34] per Kirby J.

40 If the words of the statute are ambiguous, resort may be had to extrinsic material: Interpretation Act 1987, s 34(1). Such material incudes the Second Reading Speech and reports laid before Parliament before the legislation was passed. However, as Spigelman CJ said in Harrison v Melham at [12]:

"Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, 'capable of assisting in the ascertainment of the meaning of the provisions' within s 34(1) of the Interpretation Act 1987. I only refrain from using the word 'never' to allow for a truly exceptional case, which I am not at present able to envisage."

See also Mason P at [163], [171]-[172]; Pepper v Hart [1992] UKHL 3; [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).

"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

(1) No damages for psychological or psychiatric injury are to be awarded in respect of the death of or injury to a person (the victim) caused by an incident that is the fault of another person (the defendant), except in favour of:

(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.

(b) A person (the defendant) does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.

(c) For the purposes of (b), the circumstances of the case include matters such as:

(i) whether or not the mental harm was suffered as the result of a sudden shock;

(ii) whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath;

(iii) whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses;

(iv) whether or not there was a pre-existing relationship between the plaintiff and the defendant; and

(v) the nature of the relationship between the plaintiff and any person killed, injured or put in peril." (143, 9.28; emphasis added)

54 That brings me to the Civil Liability Act.

55 "Negligence" is defined in the Civil Liability Act in conventional terms, to mean the failure to exercise reasonable care and skill: s 5. The Act does not define when a duty of care is owed. That determination remains subject to the common law. Section 5B deals with breach. It provides that a person is not negligent unless a number of things are established, which in broad terms applies the principles enunciated in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. Questions of breach were not the subject of argument in this case. Section 5D deals with causation. Again, there was no reference to questions of causation in the argument, either at first instance or on appeal.

56 Part 3 (ss 27-33) deals with "Mental Harm" and recovery of damages for pure mental harm. The parties accepted that the claim was governed by Pt 3. Section 29 provides that a person is not prevented from recovery of damages merely because the personal injury arose wholly or in part from mental or nervous shock. Such mental or nervous shock must consist of a recognised psychiatric illness: see s 31. Sections 30 and 32, which are the provisions in issue in this case, provide :

"30 Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person ('the defendant') for pure mental harm to a person ('the plaintiff') arising wholly or partly from mental or nervous shock in connection with another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril; or

(b) the plaintiff is a close member of the family of the victim.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced 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.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:

close member of the family of a victim means:

(a) a parent of the victim or other person with parental responsibility for the victim, or

(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

(b) he other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984,

but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify."

(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,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant."

57 It is convenient in the first instance to consider the scope and operation of s 30. Section 30 provides for a limitation on the recovery of damages for pure mental harm. It does so in two respects: first, by providing that only two classes of persons are entitled to recover for pure mental harm, namely, persons who fall within subs (2)(a) or subs (2)(b); and secondly, by providing that any damages are to be reduced in the same proportion as damages recoverable by the direct victim of the negligent act are reduced by the victim's negligence. The prohibition on recovery by any other law is maintained: subs (4). The question in this case arises under the first of the restrictions, that is, whether the appellants fall within the class of persons who are entitled to recover damages for pure mental harm. The only relevant class is that in subs 2(a).

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).

The respondent's construction of s 30(2)(a)

66 The respondent contended that the section does not operate unless the plaintiff is at the scene when the incident occurs and witnesses a person being killed, injured or put in peril as part of the incident. On the respondent's construction, the boundaries of the incident are defined by the actual occurrence of the incident and do not extend to what occurs during a rescue effort. It submitted that this was apparent from the language of the section as a whole, as explained below.

67 The respondent submitted that s 30(2) operates so as to limit the operation of s 30(1), which is cast in wide terms. In this regard, it accepted that the words "in connection with" are words of wide import. Subsection (2) then places a number of restrictions on the entitlement of a person to claim damages for pure mental harm.

68 First the person must witness something at the scene. Observations via other means, such as the media, would not be sufficient. This last submission is correct and was not challenged by the appellants. Next, and critically to the respondent's construction of the provision, what must be witnessed is a person being killed, injured or put in peril at the scene. It followed on this submission that direct observation of the causal event whereby the person was being killed, injured or put in peril was required. Had the legislature intended otherwise, it could, by appropriate language, have provided for an entitlement to damages for mental harm suffered by a person who witnessed the aftermath of a shocking event.

70 As has been seen, in the Ipp Report, it was recommended that a person should not be found to owe a duty of care:

"... unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken",

and the "circumstances" included "whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath" (para 9.28, p 143).

71 The recommendation involving aftermath was implemented in the Civil Liability Act 2002 (Tas), s 32 which provides:

"32 Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person ('the defendant') for pure mental harm to a person ('the plaintiff') arising wholly or partly from mental or nervous shock in connection with another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless -

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured; or

(b) the plaintiff is a close member of the family of the victim." (Emphasis added)

72 The recommendation was not implemented in s 32(2), which used the different phrase presently under consideration in both s 32(2)(b) and s 30(2)(a).

73 The respondent also submitted that the intention of Parliament was apparent from the fact that prior to the introduction of the Civil Liability Act, Pt 3, the Motor Accidents Compensation Act 1999, s 141 provided that a person was entitled to recover damages for mental harm if the person "was, when the accident occurred, present at the scene". This was one of the provisions referred to in the Ipp Report. Section 141 was repealed upon the introduction of the Civil Liability Amendment (Personal Responsibility) Act 2002. The Civil Liability Amendment (Personal Responsibility) Act, Sch 2, cl 3 inserted s 3B(2)(f) into the Civil Liability Act, which provided for the application of the Civil Liability Act, Pt 3 to motor vehicle accidents. It was submitted, therefore, that s 30 was intended, inter alia, to replace s 141 and that it was apparent from the language used that Parliament did not intend to extend the entitlement to damages to persons suffering purely mental shock following upon a motor vehicle accident beyond the entitlement under s 141.

Conclusion on construction of s 30

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