Wicks v Railcorp; Sheehan v State Rail

CATCHWORDS : Police officers - Waterfall disaster - pure mental harm - duty of care - "the scene" - put in peril

LEGISLATION CITED : Civil Liability Act 2002 (NSW)

Burke v State of New South Wales & Ors [2004] NSWSC 725 CASES CITED : Chapman v Hearse (1961) 106 CLR 112 Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383

David Colin Wicks (1st Pl) PARTIES : Rail Corporation of New South Wales, known as Railcorp (1st Def) Philip Kevin Sheehan (2nd Pl) State Rail Authority of New South Wales, known as State Rail (2nd Def)

COUNSEL : Mr B. J. Gross QC / Mr K. Earl (Pls') Mr P. Morris (Defs')

SOLICITORS : Baker & Edmunds Solicitors (Pls') Phillips Fox (Defs')

• 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20008/06 David Colin Wicks v Rail Corporation New South Wales known as Railcorp

20050/06 Philip Kevin Sheehan v State Rail Authority of New South Wales known as State Rail

JUDGMENT 1 HIS HONOUR: At about 7.15 am on 31 January 2003, a train derailment took place near Waterfall Railway Station. It has been described as both a catastrophe and a disaster and expressions such as "overall horror and carnage" have been used in relation to it. There was severe damage to the train. Power lines came to be draped across it and the track. During the derailment, some passengers were either killed or injured. Others had their safety put at risk. 2 At the time of the derailment, the plaintiffs were serving police officers. In the course of their duties they were required to attend the scene of the derailment. What they were supposed to do at the scene has been left largely unexplored. On attending that site, they were exposed to the catastrophic scene. They saw, inter alia, passengers that had either been killed or injured, passengers who were trapped in the wreckage and passengers who had not been injured. They, inter alia, rendered assistance to passengers and moved bodies. 3 Prior to the derailment, Mr Wicks had initially been performing duties in relation to exhibits at Sutherland Police Station on a temporary basis. It then became a permanent job. It was his job at the time of the derailment. He was at the scene of the derailment between about 7.45am and 5.00pm. 4 One of the things done by him was to attend to the collection and return of personal items of passengers (certain items became exhibits at the station). His duties thereafter, at the station, required continued contact with such exhibits. They were a daily reminder of the derailment (particularly the smell of dust). 5 At the time of the derailment Mr Sheehan had been engaged in operational duties. He was at the scene of the derailment between some time after 7.15am and early afternoon. Later he attended a group debriefing. He had no further contact with exhibits after leaving the scene of the derailment 6 Separate proceedings have been brought by the plaintiffs in this Court (in February 2006) in respect of alleged personal injury. Each brings a claim for damages in respect of what was once referred to as nervous shock (it is now largely treated as mental harm). 7 There is no issue between the parties that the Civil Liability Act 2002 (NSW) (the Act) has application to each of the claims and that they relate to pure mental harm within the meaning of the Act. 8 Part 3 of the Act is headed "Mental harm". It comprises sections 27-33 thereof. Section 27 provides definitions. Section 28 deals with the application of the Part (it applies to any claim for damages for mental harm resulting from negligence and provides that s29 thereof applies to a claim for damages in any civil proceedings). Section 29 provides that in any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly, or in part, from mental or nervous shock.

9 Section 30 provides as follows:- 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 (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim. spouse or partner means: (a) a husband or wife, or (b) the 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. 10 Section 33 has no relevance for present purposes. Sections 31 and 32 are as follows:- "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."

11 Each plaintiff has given evidence concerning his attendance at the scene of the derailment. Each claims to have suffered a recognised psychiatric illness consequent upon that attendance. The plaintiffs look to (a) and (b) of subs(2) of s32 of the Act as relevant circumstances. It is conceded that those listed in (c) and (d) thereof have no application in the present case. 12 Both proceedings were listed for hearing together on agreed issues. The time estimate was seven to eight days. The hearing commenced on 19 November 2007. 13 The agreed issues are as follows:- "1. Did the Defendant owe the Plaintiff, a rescuer, a duty of care? 2. Did the Plaintiff witness, at the scene, victims of the derailment, being killed injured or put in peril, in accordance with section 30 (2) of the Civil Liability Act 2002 (NSW)? 3. Did the Plaintiff's attendance at the derailment cause him to suffer a recognised psychiatric illness? If so, what is the nature of that illness? 4. What is the Plaintiff's entitlement to damages? 6. Are the Plaintiff's damages to be reduced by reason of his employer's negligence in accordance with the provisions of section 151Z of the Workers Compensation Act 1987 (NSW)?" 14 There had been case management of both proceedings. It was contemplated that all issues in both proceedings would be heard together, with concurrent evidence being given by experts. 15 At the commencement of the hearing, it became apparent that this contemplation would produce an unwieldy hearing and that it should not be implemented. 16 By consensus, there was a separation of issues. The question of liability was to be first heard. If so required, there would then be separate assessments of quantum at a later date. 17 For a number of reasons, there was also a consensus that the proposed taking of concurrent evidence had to be abandoned. All experts were not available at the same time. The exercise involved a coping with two separate situations, with each of them throwing up complex considerations and multiple issues. A joint report could not be prepared. It was not thought to be feasible to seek to define areas of dispute. In the circumstances, it was felt that the usual procedure would take up less time. Accordingly, the hearing proceeded on that basis. 18 In practice, the lay evidence in each case was received separately. The Court first took such evidence in the case of Wicks on Monday. This evidence was followed by that received in Sheehan on Tuesday. The expert evidence was taken on Wednesday. Submissions were taken on the Thursday. 19 Each plaintiff proceeds on a Further Amended Statement of Claim. Each document is similar in form. Each case is framed in negligence. I shall briefly refer to the scheme of the pleading. Largely, it commences with allegations material to the derailment. 20 Each document pleads the derailment (which is described as a passenger train undergoing a roll-over derailment) and the suffering of severe structural damage. It pleads other matters concerning the derailment (including the death of seven passengers and that many of them were injured). It pleads that the plaintiffs were police officers and that, although trained in the duties of general service, they had no special training in rescue or catastrophe response. 21 Each document contains the following paragraphs:- "On arrival at the derailed train he commenced to participate in the rescue and assistance operation including forcing access to the damaged carriages and the covering of the bodies of the deceased lying in the carriages and alongside the line in the "cess". … Throughout the entire period that the Plaintiff was present at the crash site, he witnessed, at that scene, numerous victims who, in terms of s30(2)(a) of the Civil Liability Act 2002 (NSW), were then being killed, injured or put in peril, in that: (a) some of those survivors who were injured were in the process of dying or in peril of dying from their injuries; (b) all of those survivors who were injured in the crash were continuing to suffer progressive injury or aggravation of injury (from bleeding and/or deterioration of various body parts and bodily functions) or were being put in peril of further injury, aggravation or deterioration from lack of, or delay in, available treatment for their injuries; (c) those survivors who required rescue were then suffering progressive injury or aggravation of injury or being put in peril of injury, aggravation or deterioration (of various body parts and bodily functions) in the course of rescue activities and because of any potential delays or difficulties in rescue activity and evacuation from the crash site." 22 Each document concludes with paragraphs concerning negligence. The second last commences as follows:- "The cause of the derailment and the catastrophic damage and injuries to the passengers that the Plaintiff was required to deal with on the date of the derailment, and the injury to the Plaintiff, was the negligence of State Rail, and thus the Defendant as its statutory successor." 23 This paragraph is followed by a paragraph headed "Particulars Of Negligence". The particulars are set forth in (a) - (n) thereof. The acts or omissions alleged therein follow an allegation that the defendant was negligent in and about the operation of the railway and the train. 24 There is no definition of the duty of care allegedly owed by the defendant to the plaintiffs. The alleged acts or omissions do not link the conduct of the defendant with the injury suffered by the plaintiffs. The particulars take the form of allegations of breach restricted to those concerning the operation of the railway and the train. No particular victim was identified in the documents.

25 There was an admission by the defendant of breach of duty of care owed to the passengers. A bundle of non-censored photographs of the derailment were tendered as Exhibit A in each of the proceedings. Considerable documentation was tendered. 26 Mr Wicks gave evidence in his own proceedings (by way of affidavit, supplementary oral evidence and cross-examination). His evidence was supported by Senior Constable Kylie Price (his ex-fiancé who attended the derailment with him). He tendered a bundle of expert reports. 27 Mr Wicks was born on 5 November 1962. He was sworn in as a probationary constable on 27 February 1987. 28 Prior to the derailment, Mr Wicks had been involved in a number of incidents that had caused him problems. Leaving aside incidents which had caused him physical injury (to his right ankle), there had been others on 25 July 1988 (he was threatened by a man pointing a spear gun at him), in 1998 or 1999 (he attended a scene where a man had jumped in front of a train), in 2000 (where he attended a motor cycle accident where the rider had been cut in half) and on 14 July 2001. There also had been other incidents (including one where a man had gassed himself in the National Park). 29 The incident on 14 July 2001 was the most serious. It involved a siege. It caused him mental problems and resulted in a diagnosis of post-traumatic stress disorder by a psychologist (Delma Gordon). He had ten sessions of treatment. He was off work for some weeks. 30 Whilst he was at the scene of the derailment, he was contacted by a police psychologist (Jennifer Lette). She was checking to see how he was coping. He informed her that he wanted to stay and complete the job. Subsequently, contact was had with other police psychologists (David Bright and Jennifer Placanica). 31 In June 2003, he saw Delma Gordon again. He presented to her with recurrent and intrusive memories of the derailment experiences. The memories included olfactory experiences (the smell of dust and diesel fumes) and the shock of the extreme carnage (the realisation of walking on body parts among the debris and the presence of less experienced personnel). 32 About this time, he was also receiving treatment from a general practitioner (Dr Chau). He then came to see another psychologist (Mr Hazelton). He had been referred to Mr Hazelton by Delma Gordon (who was retiring). Mr Hazelton received a presentation that was similar to that given to Delma Gordon. He diagnosed post-traumatic stress disorder. In about July/August 2003, the relationship he had had with Senior Constable Kylie Price (who was then Kylie Mann) came to an end. He continued to see Dr Chau and was referred to a psychiatrist (Dr Davies). He was also given a presentation similar to that received by the psychologists. 33 Mr Wicks ceased performing police duties on about 20 August 2003. On 19 August 2004 he applied for a medical discharge. On 15 September 2004, he saw Dr Klug. Shortly thereafter, he ceased receiving treatment from Mr Hazelton. On 24 December 2004, he was medically discharged (chronic post-traumatic stress disorder in partial remission).

34 His oral evidence revealed him to be an unreliable historian. It seems to me that he was less than frank in his evidence-in-chief. I formed the opinion that his evidence should be treated with care. 35 Mr Sheehan gave evidence in his own proceedings (by way of affidavit, supplementary oral evidence and cross-examination). His evidence was supported by that of his wife, of Senior Constable Muller and of Constable Donaghy-Lewis. He also tended a bundle of expert reports. 36 Mr Sheehan was born on 20 March 1969. He was sworn in as a probationary constable on 9 September 1998. At the time of the derailment, he was stationed at Miranda. He had been transferred from Redfern in about July 1996 at his own request (his evidence was that, by then, he had lost his nerve). 37 Prior to the derailment, Mr Sheehan had also been involved in a number of incidents. Apart from the twisting of a left knee at Redfern Police Station (on 5 December 1995), he was punched in the face (in October 1991) and suffered an injured nose. He was involved in a riot at Redfern (on 29 March 1996) which saw him being punched, kicked, shoved, spat on and having a brick strike the right side of his face. He was attacked by a man wielding a small axe (in December 1996) and received death threats from both the man and his family. He attended a murder scene (on 24 December 1999) and saw the victim who had been shot in the face with a shot gun at close range and was involved in an arrest (on 5 September 2000) during which another officer shot and killed the driver of a stolen motor vehicle. 38 The last of the incidents was followed by a lengthy investigation, the charging of the other officer with murder and his discharge at committal. The process occupied about eighteen months. It was an incident that caused him to feel that, potentially, he too was at risk of being shot. 39 The injury suffered in the riot left him with damage to his hearing and the suffering of tinnitus. Thereafter, his hearing loss deteriorated. He was off work for about four to six weeks during the period from March to May 1996. He came to suffer profound hearing loss in the right ear. In the incident he had also been rendered unconscious and suffered concussion. 40 He underwent unsuccessful ear surgery in April 2003. He settled a claim for hearing loss. His hearing loss led him to be transferred from full operational duties to restricted duties on 30 September 2003 and he was demoted from Leading Senior Constable to Senior Constable. This was a matter of great significance to him. During the period that followed until May 2004, he worked as an exhibits officer. 41 Following the derailment, Mr Sheehan made a report as to injury. The report related to injuries other than those of a mental nature (the inhaling of dust in carriages and the twisting of his left ankle). The first complaint raising the derailment as the cause of psychological problems came to pass when he made a workers compensation claim on 24 May 2004 (exposed to injured and deceased persons). It was at this time that he saw a general practitioner (Dr Schacher) who referred him to a psychologist (Edwina Birch). His claim was referred to Claims Intervention and he was then seen by another psychologist (Ms Costantini). His claim was later declined. He last saw Edwina Birch on 18 June 2004. In the history given to her, she recorded a decision that he had made to seek a medical discharge. 42 Her report, dated 22 June 2004, contained the following:- "I don't think that I need to see Phillip again. His symptoms have largely resolved, his work situation is not exacerbating any anxieties and is not likely to do so until his medical retirement comes through." 43 He saw Dr Selwyn-Smith on one occasion (there were two reports provided in July and August 2004). He also saw Dr Klug on 20 September 2004. He next saw a psychiatrist on 1 August 2006 (when he saw Dr Maguire at the request of the defendant). He did not seek any treatment until he saw Mr Ian McCombie (a psychologist) in September 2006. He later had a consultation with Dr Phillips on 15 March 2007. 44 In late April 2004, a public servant who had been performing rostering duties was going on maternity leave. A decision was made that Mr Sheehan take her place. He did not want to perform those duties. He wanted to return to operational duties. He enlisted the aid of Professor Fagan to make representations on his behalf. That approach was unsuccessful. He became aware that his hearing loss could not be medically corrected and that he would not be able to return to operational duties (this was said to be regarded by him as devastating). During June 2004, he made a decision to apply for medical discharge. 45 On 23 June 2004, he made that application (because of hearing loss, knee injury and a stress condition). In November 2004, he was found to be unfit to continue in the police force. On 2 December 2004, he was medically discharged from the force. 46 I make similar observations concerning the evidence of Mr Sheehan to those made of the evidence of Mr Wicks. 47 I have earlier mentioned that each plaintiff has given evidence concerning his attendance at the scene of the derailment. This material was presented, inter alia, in their respective affidavits. Largely, this material provides an account of their respective activities at the scene. 48 There are observations of dead and injured passengers (who had been either killed or injured in the derailment). There is no reference to actually seeing passengers either killed or injured. There are observations which can be generally described as concerning risk of the condition of passengers further deteriorating. Nothing is said as to what impact (if any) was had upon them by what had been observed by them. 49 Of the experts, it was originally intended that Doctors Phillips, Klug and Maguire, and Mr Roldan would give oral evidence. Because of constraints of time, a decision was made between Counsel not to call Dr Maguire. A consensus was then reached between them to the effect that no adverse comment was to be made by reason of failure to cross-examine an expert. 50 Dr Klug was the first to give oral evidence. He was not a treating doctor. He saw both plaintiffs in the context of their respective pending applications for medical discharge. 51 In the case of Mr Wicks, he provided a report dated 3 November 2004. It contained, inter alia, the following [at page 7]:- "In summary, Mr. Wicks has suffered from a chronic post-traumatic stress disorder, now in partial remission, in response to his attendance at the Waterfall rail disaster but also in response to continuing exposure to intense reminders of the Waterfall train disaster. If he suffered a full-blown post-traumatic stress disorder in response to other traumatic incident in 2001, then his PTSD in response to the Waterfall train disaster must be regarded as recurrent. Nevertheless, his psychiatric condition is in direct response to his work as a police officer. It is also partly in response to what appears to be an overt lack of appropriate support and intervention on behalf of his employer. His prognosis is uncertain at this point" 52 In the case of Mr Sheehan, he provided a report dated 24 November 2004. It contained, inter alia, the following [at page 7]:- "It is clear that Mr Sheehan has been exposed to severe cumulative stresses in the course of his work as a police officer and these are detailed in the body of my report and in the reports of others. I believe he developed a post-traumatic stress disorder. … A post-traumatic stress disorder is a severe anxiety disorder in response to, by definition, severely traumatic stresses such as the ones to which Mr Sheehan has been exposed. Self-evidently the Waterfall Train Disaster was the most severe but he had continuing contact with traumatic situations including numerous deaths over a relatively short period of time, which acted as continuing reminders of prior traumas he had witnessed. This is the essential nature of the cumulative way in which such stresses can affect a person. The Waterfall disaster resulted in a PTSD, which may have been recurrent if his symptoms after the Redfern riot were sufficient to qualify for a PTSD." 53 The next expert to give oral evidence was Dr Phillips. Again, he was not a treating doctor. He saw each plaintiff subsequent to the commencement of proceedings. 54 In the case of Mr Wicks, he provided a report dated 14 November 2006. In that report he opined that Mr Wicks may have developed symptoms during 2001 sufficient to warrant a diagnosis of post-traumatic stress disorder. He further opined that it had been exposure to high-level psychological stress at the time of the train accident which tipped the balance and caused him to develop his now chronic psychological symptoms. His report contains, inter alia, the following [at page 10]:- "The train accident was a very frightening and unusual event. Mr Wicks was one of the first police officers to arrive at the scene. The carnage was considerable with the plaintiff coming across numerous bodies and being confronted by many more people who had substantive physical and psychological in juries. Damage to the forward carriages of the train was very high. The plaintiff remains aware also of the unusual smells at the time (particularly dust) and he was aware of risks of electrocution. The plaintiff was to remain at the accident site for many hours and was responsible for emotionally charged activities including the marshalling and triage of injured persons and collecting/collating the personal belongings of passengers who had been killed or injured." 55 In the case of Mr Sheehan, he provided a report dated 3 July 2007. He came to the view that Mr Sheehan met the criterion for post-traumatic stress disorder. The report contains, inter alia, the following [at page 12]:- "The causal pathway to Mr Sheehan's psychological disorder is more comprehensive. On my estimation the plaintiff began a process of psychological decompensation from as early as 1992 in the context of the various incidents which occurred from that time. On the balance of probabilities, however, it was the overwhelming magnitude of the carnage at the time of the rail disaster which weakened the plaintiff's psychological status, with symptoms emerging in the period which followed, this also having been the period when his duties were altered. It is not uncommon when assessing psychological trauma to speak about trauma dosage . There should be no doubt that trauma associated with the rail disaster was of extreme dosage or magnitude. In the context of this I find myself holding a different opinion to my colleague Dr Maguire and Ms Constantini who for some reason have placed very high level of emphasis on the plaintiff's change of duties within New South Wales Police. As already stated I believe this issue cannot be ignored but the dosage of physical trauma associated with the change of duties cannot be compared with the dosage of the psychological trauma at the time of the rail disaster. I have summarised details of the plaintiff's experience at the time of the rail disaster in the body of this report and I will not repeat these matters here." 56 The final expert to give oral evidence was Dr Roldan. He was qualified by the defendant and saw both plaintiffs. In the case of Mr Wicks he gave two reports. The second of the reports was dated 30 June 2007. It contained the following [at paragraphs 10.3 and 10.5 respectively]:- "I also remain of the opinion that on the basis of the available information it seems likely that Mr Wicks developed symptoms of Post Traumatic Stress Disorder in response to a number or work-related stressors during his career with the NSW Police Service and that it is in fact likely that he may have met criteria for the diagnosis of Post Traumatic Stress Disorder following a work-related incident in July 2001. In my opinion, within the context of the abovementioned pre-existing factors, Mr Wicks exposure to the Waterfall train accident on 31.01.03 is likely to have given rise to a further formal episode of psychological decompensation in the form of Post Traumatic Stress Disorder that has now become rather chronic (albeit fluctuating) and somewhat generalised." 57 In the case of Mr Sheehan he also provided two reports. The second of the reports was dated 25 June 2007. The report contains the following [at paragraph 10.2]:- "I remain of the opinion that if one were to accept at face value Mr Sheehan's report of the history and symptom attribution, it would be reasonable to conclude that Mr Sheehan developed delayed onset Post Traumatic Stress Disorder as a consequence of his experiences at the scene of the Waterfall train accident in January 2003." 58 He proceeded to opine that there were some impediments to accepting Mr Sheehan's report and symptom attribution at face value when the available evidence was analysed in objective terms. He was of the opinion that Mr Sheehan acted with significant distress to the news (in late September 2003) that he was considered no longer fit for operational duties due to his hearing impediment. 59 He proceeded with the following [at paragraph 10.6]:- "It is my opinion that the above, together with the stress inherent in his subsequent quest to change the abovementioned decision, plus the stress associated with perceived loss of status, having to perform clerical type duties, having been ordered not to use marked police vehicles or a police uniform outside the police station, having to hand in his police appointments, and the potential loss of opportunities for advancement, are likely to have resulted in the Adjustment Disorder diagnosed by Ms Constantini in June 2004." 60 There was other expert evidence. There were concessions made during cross-examination. For present purposes it is unnecessary to explore these matters.

61 On the first issue, the plaintiff's submit as follows:- "36. It is well established that a duty of care is owed to a rescuer at common law: Chapman v Hearse (1961) 106 CLR 112 (physical injury); Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 (psychiatric injury)." 62 The defendant submits that there is no reported case in Australia in which a professional rescuer has been awarded damages for nervous shock suffered as a result of his experiences in carrying out his duties. It is acknowledged that there is authority which gives theoretical support for the existence of such a right of action at common law. However, it takes the view that in the present cases it was not reasonably foreseeable that either plaintiff would have suffered psychiatric injury in the circumstances. 63 In my view, it is unnecessary to further address this issue. Each claim can be determined on other grounds. This academic argument is better left for another day.

64 It may be added that, curiously, there is no agreed issue concerning breach of duty of care. It may be further added that the admission made by the defendant extended only to the question of the duty of care owed to passengers. Largely, the issue of breach was left untouched. 65 Leaving aside the position at common law, a duty of care will not be owed in this case unless what is specified in s32(1) of the Act is made out. In my view, that task was not performed by either plaintiff. 66 Generally speaking, on this question there is a lack of material evidence. In addition, I shall refer to specific matters that are not made out. 67 Section 32(2) of the Act provides an inclusive list of relevant circumstances for the purposes of the application of the section. The plaintiffs look only to those circumstances listed in (a) and (b) thereof. 68 In my view, the evidence does not demonstrate that mental harm was suffered as a result of a sudden shock. Further, I consider that the circumstance listed in (b) has not been made out. I will come to the detail of that matter in due course. 69 I now turn to the second issue. The application of s30 of the Act was considered in Burke v State of New South Wales & Ors [2004] NSWSC 725. The Court has been informed that it is the only decision on these statutory provisions. 70 By the time of the trial, it was not said that either plaintiff had witnessed, at the scene, a victim being killed or injured. The case was restricted to witnessing passengers put in peril.

71 The relevant submissions made by the plaintiffs are as follows [at paragraphs 45-52 in the Wicks case and paragraphs 44-51in the Sheehan case] :- "The surviving passengers who had physical injuries were in continuing peril of further injury, both physical and mental, at the scene until they were taken away by ambulance. Some of the surviving passengers who were injured were in peril of death until they were rescued and transported away from the scene by ambulance. The surviving passengers who had either physical injuries or no 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. For those crash survivors who were injured and bleeding, they were continuing to be put in peril because additional or extended injury can occur if injuries are not promptly treated by ambulance officers, doctors and hospitals. Further, there is abundant evidence of the Plaintiff protecting passengers from the peril of psychological or psychiatric injury while they were at the scene. The process of extracting trapped passengers, placing injured passengers onto boards and stretchers involved injury (aggravation or exacerbation) of those passengers, and putting them in peril of such further injury. When the Plaintiff arrived at the scene, he witnessed the powerlines draped over the carriages, which represented, at least temporarily, peril to the train passengers. The causal connection between the Defendant's acts or omissions and the acts of the rescuers meant that any injury or peril created, by the rescue efforts, satisfied the requirement in section 30(1) of such passenger being "injured or put in peril by the act or omission of the defendant". The rationale behind awarding damages to rescuers of persons who have been negligently injured is that the peril to the injured person invites rescue."

72 In my view, what was said in Burke v State of New South Wales & Ors has application in this case (see, inter alia, paragraphs 58-68). I do not accept the submissions made on behalf of the plaintiffs. Accordingly, I consider that neither plaintiff falls within the entitlement requirements of s30(2)(a) of the Act (which is the only one of the provisions of subs(2) that is relied on by the plaintiffs). 73 There is common ground that s30 of the Act has application to both claims. However, there is issue between the parties as to the proper construction to be given to s30(2)(a). 74 Section 30 is intended to impose a limitation on the recovery of damages for pure mental harm arising 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. 75 The prohibition or disentitlement proscribed by subs(2)(a) restricts the recovery of damages to those cases where the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril. 76 In the second reading speech, the Minister presented the bill as restricting the recoverability of damages to, inter alia, "people present at the accident scene". It seems to me that the words "the scene" are referable to the scene of the shocking events brought about by the defendant's acts or omissions during which the victim is killed or injured or put in peril. In this case, the scene is that of the accident involving the derailment. It is not referable to what happened thereafter (which may be conveniently referred to as the aftermath). 77 What the plaintiff must do to be entitled to recover damages is to witness, at that scene, the victim being killed, injured or put in peril. 78 There was some debate as to the meaning to be given to the words "to be put in peril". I was informed that there was no helpful authority on the matter. It seems to me that the meaning is to be determined by reference to dictionary meaning and statutory context. The dictionary meaning connotes being exposed to serious and immediate danger. The statutory context would suggest 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. I should add that I do not consider that the words connote mere possibilities. It seems to me that there has to be a witnessing involving an actual state of peril. 79 Whilst passengers were killed, injured and put in peril in the accident, neither plaintiff was present during the taking place of it and it is not said that they did witness any of those events.

80 In the present case, the plaintiffs were exposed to the post-accident wreckage and carnage. In that sense, what they saw was the aftermath of the accident, which exposed them to the damaged train and the passengers that had either been killed or injured. 81 On behalf of the plaintiffs, it is contended that, during their presence at the scene of the derailment, they witnessed passengers being put in peril. In my view, this contention lacks evidentiary support. Accordingly, even if a different view were to have been taken as to the meaning of "the scene", the claims would still fail. 82 There is no identification of any particular victim. The highest point of the evidence is the seeing of certain unknown and anonymous passengers who were already dead or injured or who may have been at risk of their condition further deteriorating. In my view, the evidence does not demonstrate that either of the plaintiffs witnessed any passengers being put in peril. 83 In these circumstances, it is unnecessary to consider the third issue. However, because of the hearing time devoted to it, I will make certain observations concerning it. 84 The defendant conceded that there is no real dispute that Mr Wicks had suffered a recognised psychiatric illness as a result of his exposure to the derailment. However, it takes the stance that there is a real dispute in the case of Mr Sheehan. In both cases, the considerations concerning their respective mental conditions were of complexity, involving multiple issues. 85 A consideration of the evidence provides further reasons for the lack of necessity to explore these matters. 86 The evidence (including that of the plaintiffs and the experts) falls hopelessly short of relating any psychiatric illness to any victim. The thrust of the evidence is to relate their problems to other matters (including the overall impact of their exposure to the scene of the derailment, the carnage and the seeing of dead and injured bodies). For this deficiency alone, both claims are doomed to failure. 87 There were telling pieces of evidence given by both Mr Sheehan and Constable Donaghy-Lewis (she worked with Mr Sheehan). 88 He gave the following evidence [at transcript page 73]:- "Q. Just in terms of the day itself, that is your day at that rail disaster, what sort of experience was it for you? A. Initially it felt very surreal sort of thing, like when we first arrived at the scene it was just quiet and like surreal. I remember like my adrenalin was just pumping because of what we were doing there. I remember it must have been 11.30 or 12 was the first time I looked at my watch and realised what time it was. It seemed like it was only 10 minutes just with the adrenalin pumping. We just got in and did what we had to do. We did not have time to think about what we were doing, we just did what we did." 89 She gave the following evidence [at transcript page 142]:- "Q. When you were in exhibits together did the (sic) talk about the Waterfall disaster? A. Yes, he did. Q. What did he say about it? A. Well, I remember him saying that he was glad that I wasn't there, that it was the most terrible job that he had been to and I already knew of the other jobs he had been to because I was at some of them myself, and he said he didn't seem to be able to get past it, like, he couldn't sleep at night and he just, I don't know, but I remember he was fixated on the fact that when he got there people weren't screaming and running around and asking for help and doing what they normally would do at jobs we were on, it was really eerie and quiet, and he was glad that I wasn't there." 90 In my view, neither plaintiff has been able to demonstrate pure mental harm in connection with another person being killed, injured or put in peril by the act or omission of the defendant. 91 I direct the entry of judgment for the defendant in each of the two proceedings. Each plaintiff is to pay the costs of his respective proceedings. The exhibits may be returned. **********

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