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SUPREME COURT OF QUEENSLAND
CITATION: Caffrey v AAI Limited [2019] QSC 7
PARTIES: DAVID PAUL CAFFREY (plaintiff) v AAI LIMITED (ABN 48 005 297 807) (defendant)
FILE NO/S: BS No 6587/
DIVISION: Trial
PROCEEDING: Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON: 30 January 2019
DELIVERED AT: Brisbane
HEARING DATE: 9, 10 and 11 October 2018
JUDGE: Flanagan J
ORDER: 1. Judgment for the plaintiff against the defendant for $1,092,948.
2. The parties to be heard as to costs.
CATCHWORDS: TORTS – ESSENTIALS OF ACTION FOR NEGLIGENCE
- DUTY OF CARE – PURE PSYCHIATRIC HARM – COMMON LAW – where the plaintiff police officer was deployed to the scene of a fatal motor vehicle accident – where the accident involved a single motor vehicle and the driver was the sole occupant of that vehicle – where the accident was caused by the driver’s negligence – where the driver died at the scene in the presence of the plaintiff and the driver’s parents – where the plaintiff sustained a psychiatric injury in the form of Post Traumatic Stress Disorder (PTSD) as a result of his experiences at the scene – where, following the accident, the plaintiff was dismissed from his employment with the Queensland Police Service on the basis of medical incapacity – where the defendant to the action is the deceased driver’s insurer – whether the deceased driver owed the plaintiff a duty of care – whether policy considerations arising from the plaintiff’s status at the time of the accident, as a police officer and holder of statutory office, bar the plaintiff’s claim
TORTS – NEGLIGENCE – APPORTIONMENT OF
RESPONSIBILITY AND DAMAGES – GENERALLY –
where the plaintiff concedes he had, at the time of the accident, a pre-existing vulnerability to psychiatric harm – where the plaintiff, subsequent to that motor vehicle accident and prior to his dismissal from the Queensland Police Service taking formal effect, attended at a second motor vehicle accident while off-duty – where the second accident involved multiple child fatalities – whether, and to what extent, the second accident contributed to or aggravated the plaintiff’s PTSD – whether the plaintiff would have developed symptoms of PTSD as a consequence of his exposure to general workplace stressors, irrespective of his attendance at the two accidents – whether any award of damages should be discounted, and by what amount, to account for these contingencies
Civil Liability Act 2003 (Qld), s 5 Motor Accident Insurance Act 1994 (Qld), s 5, s 52 Police Service Administration Act 1990 (Qld), s 2.3, s 2.
ACQ Pty Ltd v Cook (2008) 72 NSWLR 318; [2008] NSWCA 161; distinguished Béchard v Haliburton Estate (1991) 5 OR (3d) 512 (CA); (1991) 84 DLR (4th) 668; considered Bowditch v McEwan & Ors (2001) 35 MVR 168; [2001] QSC 448; considered Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258; considered Chadwick v British Railways Board [1967] 1 WLR 912; [1967] 2 All ER 945; considered FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261; [2000] NSWCA 346; considered Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33; applied Hirst v Nominal Defendant [2005] 2 Qd R 133; [2005] QCA 65; applied Homsi v Homsi [2016] VSC 354; considered Jaensch v Coffey (1984) 155 CLR 549; [1984] HCA 52; applied Jausnik v Nominal Defendant (No 5) (2016) 78 MVR 230; [2016] ACTSC 306; considered King v Philcox (2015) 255 CLR 304; [2015] HCA 19; applied Mount Isa Mines Limited v Pusey (1970) 125 CLR 383; [1971] ALR 253; applied Ogwo v Taylor [1987] 3 WLR 1145; [1988] AC 431; applied Perham v Connolly (2003) 40 MVR 224; [2003] QSC 467; considered Phillips v MCG Group Pty Ltd [2013] QCA 83; applied
(c) the plaintiff’s psychiatric injury was not an injury sustained under the circumstances contemplated by s 35 of the Workers’ Compensation and Rehabilitation Act 2003; (d) accordingly, pursuant to s 5(1)(b) of the Civil Liability Act 2003 (Qld), that Act does not apply in relation to deciding liability or any award of damages for the plaintiff’s psychiatric injury.
Section 5(1)(b) provides that the Civil Liability Act 2003 does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which s 34(1)(c) or 35 of that Act applies. Consequently, the Civil Liability Act 2003, including Chapter 2 (“Civil liability for harm”), has no application in relation to deciding liability or any award of damages in the present case. The proceedings are therefore to be determined in accordance with common law principles.
[6] It is not disputed that the collision was caused by the negligence of Mr Williams, arising from his failure to drive the vehicle at an appropriate speed and to maintain proper control of the vehicle, which was in turn caused by his self-intoxication and use of methamphetamines, amphetamines and marijuana.^5
[7] The primary issue concerning liability is whether, as a matter of law, Mr Williams owed a duty of care to the plaintiff. The plaintiff identifies the issue as follows:^6
“… whether, as a matter of law, a duty of care is owed to a police officer, acting in the course of their duties, by the driver of a motor vehicle in respect of a psychiatric injury suffered by the police officer as a consequence of the driver’s negligence.”
The defendant denies that Mr Williams owed a duty of care to the plaintiff.^7
[8] The quantification of the damages sought by the plaintiff arising from his admitted psychiatric injury is also in issue, in particular whether the plaintiff’s damages should be discounted because of subsequent events which occurred on 22 August 2014 and the prospect of him developing a psychiatric injury irrespective of the events of 17 February
The plaintiff
[9] The plaintiff was, in my view, an honest and credible witness. He was a reasonably accurate historian. He did not seek to embellish his evidence in any way. He gave direct and straightforward answers in cross-examination. No submission was made by the defendant that the plaintiff was anything other than a credible witness.
(^5) Plaintiff’s Outline of Submissions, paragraph 3(e); Defendant’s Outline of Submissions, paragraph 5; Amended Statement of Claim, paragraph 10; Further Amended Defence, paragraph 4(a). (^6) Plaintiff’s Outline of Submissions, paragraph 8. (^7) Further Amended Defence, paragraph 8.
[10] He was born on 30 May 1968 in the United Kingdom. He completed his schooling at age 16. After being employed in a number of roles, he joined the Royal Military Police Reservists, where he remained for approximately two years.
[11] In 1992, he married and subsequently had two children. His wife is a registered nurse, specialising in oncology.
[12] In 1995, the plaintiff joined the West Mercia Constabulary where he remained until around 2005, when he migrated with his family to Australia. He did not resign from the West Mercia Constabulary at this time, but rather took a leave of absence, which he described as a “five-year career break”.^8
[13] During his service with the West Mercia Constabulary the plaintiff was exposed to disturbing events, such as road traffic accidents and suicides. Prior to migrating to Australia he did not receive any psychiatric treatment or psychological counselling, nor was he prescribed medication for any psychiatric disorder.
[14] Prior to migrating to Australia in 2005, he applied to the QPS. He undertook an interview with the QPS in 2004. Upon arrival in Queensland, he undertook the Police Abridged Competency Education (“PACE”) course. This was a 16 to 17-week course. At the conclusion of this course he was sworn in as a Constable and was posted to the Caloundra police station. He moved his family to Mooloolah.
[15] In May 2006, after being stationed at Caloundra for approximately six months, he was transferred to the Kawana police station. He was unhappy with this transfer and sought to have the decision overturned. He was unsuccessful. The plaintiff clashed with the officer-in-charge at Kawana. The plaintiff had difficulty adjusting to the differences in the style of policing between the United Kingdom and Queensland. The tensions between the plaintiff and the officer-in-charge at Kawana reached a crisis point, resulting in the plaintiff being “managed” by the officer-in-charge. The plaintiff, in consultation with his general practitioner and others, decided that he needed some “time out”.^9 The plaintiff was off work from approximately 27 July 2006 to 6 September 2006, when he returned to work on lighter duties. He returned to full-time duties at the Caloundra police station in March 2007. Part of the process of the plaintiff’s graduated return to work included being psychiatrically assessed and receiving treatment from a psychologist.
[16] There was an extension of the plaintiff’s probationary period as a Constable effective from 23 October 2006. The probationary period ended with the confirmation of the plaintiff’s appointment as a Constable on 3 March 2007. He was promoted to Senior Constable on 19 November 2007^10 and was transferred to the Beerwah police station on 30 November 2007 on a permanent basis.
[17] It is convenient at this stage to deal with the reports of the two psychiatrists who examined the plaintiff in 2007. The plaintiff was examined by Professor Harvey
(^8) T 1-65, line 18. (^9) T 1-18, line 31. (^10) Exhibit 3.
[22] On 19 February 2008, the plaintiff submitted an application to have his employment with QPS changed from full-time to part-time. This was motivated by his desire to spend more time with his young children.^16 This application was granted on 11 March
[23] In April 2008, the plaintiff’s wife was involved in a serious head-on collision and suffered multiple injuries. In June 2008 the plaintiff applied to work part-time for a further 12 months. This application was accepted. He subsequently filed applications to work part-time in September 2009, June 2010 and May 2011. Each of these applications were accepted.^17
[24] In March 2012, the plaintiff again applied for part-time employment, however on this occasion it was refused and he was directed to return to full-time employment, which he did on 8 December 2012.^18 The plaintiff’s evidence, which I accept, was that at no time between when he was obliged to return to full-time duties and the 17 February 2013 incident did he consider leaving the QPS.^19 His five year leave of absence from the West Mercia Constabulary had well and truly expired. His family were settled and happy living in Australia and he wished to continue his career with the QPS.^20
[25] As at the date of the incident of 17 February 2013, the plaintiff was a full-time member of the QPS, stationed at Beerwah.^21
The events of 17 February 2013
[26] On the night of 17 February 2013 the plaintiff was on duty with Senior Constable Collins. The plaintiff was the senior of the two officers. The plaintiff received a call from a member of the public stating that there had been a traffic accident and a male in the vehicle had had his “legs chopped off”.^22 The plaintiff ascertained the general location of the accident and requested the member of the public to turn his vehicle lights on.
[27] Upon arrival, the plaintiff observed that Mr Williams’ vehicle was wrapped around a tree. The member of the public who was present informed the plaintiff that the driver, Mr Williams, was still alive.
[28] The plaintiff climbed up to the vehicle and observed that Mr Williams’ legs were “very squashed”. Having completed a first aid course, the plaintiff sought to clear Mr Williams’ airway. He placed his hand under Mr Williams’ chin and sought to support his head from the back. Mr Williams started to gasp but his eyes were open.^23 At this stage neither the ambulance nor the fire brigade had arrived.
(^16) T 1-20, lines 30-37. (^17) T 1-21, lines 16-45. (^18) Exhibit 8, Agreed Trial Bundle, Tab A, page 113. (^19) T 1-71, lines 10-13. (^20) T 1-71, lines 17-23. (^21) T 1-22, lines 40-46. (^22) T 1-24, line 3. (^23) T 1-24, line 35.
[29] The plaintiff noticed that Mr Williams started to breathe more and the plaintiff encouraged him with words to the effect, “Come on, mate”, “Don’t give up”.^24 The plaintiff believed that Mr Williams could hear what he was saying. At this time the plaintiff received a phone call from Police Communications enquiring as to which police district the accident had occurred in. The plaintiff made a curt reply saying, “I’m trying to keep someone alive, so is there any chance that you could fuck off and leave me to get on with it”.^25 After hanging up from this phone call the plaintiff noticed that he had matter all over his hands as he was not wearing gloves. He believed the matter came from Mr Williams’ head.
[30] The plaintiff then obtained some first aid material, put on gloves and returned to the vehicle. He instructed his partner to also put on gloves.
[31] It was at this time that Mr Williams’ parents arrived on the scene. They had been driving around the area looking for their son as they were concerned about him.^26 The plaintiff sought to reassure Mr Williams’ mother, stating that her son would survive. He also informed Mr Williams that his mother was present so that he should not give up.^27
[32] After what felt like a lifetime to the plaintiff,^28 the fire brigade service arrived and were about to commence to cut Mr Williams from the vehicle. The plaintiff instructed the fire brigade personnel not to cut anything as from his first aid training he believed that because of Mr Williams’ crush injuries, his release from the vehicle could cause a heart attack or shock which was potentially fatal. He instructed the fire brigade personnel to await the paramedics. In the meantime, the plaintiff continued to reassure Mr Williams’ parents, after which the paramedics arrived.
[33] In seeking to recall the events of 17 February 2013, the plaintiff became visibly upset and an adjournment was required. His distress in recalling these events was, in my view, genuine. There was no suggestion to the contrary.
[34] Upon the arrival of the paramedics, one of them said to the plaintiff, “Just keep doing what you’re doing”. Steps were then taken to cut Mr Williams out of the vehicle. The plaintiff engaged with Mr Williams’ mother, putting his arm around her saying words to the effect, “Look he’s going to be – everybody’s here for him. Everybody’s working for him, you know? He’s going to be all right.”^29
(^24) T 1-24, lines 40-41. (^25) T 1-25, lines 14-15. (^26) Mr Williams had in the days before the accident been arguing with his wife, who, as a result, had been staying with her parents at Woodford. On the night of the accident Mr Williams called his parents in an agitated state and told them he was driving to his in-laws’ residence. Mr Williams’ parents were so concerned about him as a result of this phone call that they drove to Woodford to try to locate him. When they were unable to find their son they returned to the Glasshouse Mountains and came across the scene of the accident; Exhibit 8, Agreed Trial Bundle, Tab B, page 10. (^27) T 1-25, lines 40 to 43. (^28) T 1-25, line 44. (^29) T 1-26, lines 19-20.
to work in order to obtain a firearm. He contemplated shooting certain police officers and then himself.^34
[39] The plaintiff was referred by Dr de Maroussem to a consultant psychiatrist, Dr Dhushan Illesinghe. Four reports of Dr Illesinghe dated 8 July 2013, 11 September 2013, 27 September 2013 and 12 May 2014 were tendered.^35 Dr Illesinghe in his first report dated 8 July 2013 records that following the incident the plaintiff experienced poor sleep and was excessively emotional. He remained preoccupied with the accident and had frequent images of the events flashing “in his mind’s eye”. The plaintiff also experienced seeing his son’s face on the body of the deceased person.
[40] Dr Illesinghe recorded the following diagnostic formulation:^36
“Mr Caffey has been a previously well-adjusted individual without significant psychological problems in his past. With the assessment so far, I have not been able to recognise previous traumatic incidents contributing towards his current presentation. Following the traumatic event of 17 February 2013, he has developed a range of psychological symptoms such as insomnia, anxiety, depression and specific post-traumatic symptoms such as flashbacks and reliving experiences. With this range of symptoms my diagnosis is one of Post-Traumatic Stress Disorder (DSM IV code 309.81).”
[41] Dr Illesinghe recommended hospitalisation for intensive psychological treatment. He did not think it appropriate for the plaintiff to consider returning to his duties.
[42] In his report dated 11 September 2013 Dr Illesinghe offered the following prognosis: 37
“Taking into consideration Mr Caffrey’s premorbid level of functioning and the level of functioning following the incident of February 2013, my opinion is that he carries a poor prognosis. This is due to the significant level of anxiety that he is continuing to experience in relation to Police work after six months after the incident. Although he expresses a desire to return to his previous work, whether he is able to do this is doubtful.”
[43] In his report dated 12 May 2014, Dr Illesinghe advised the QPS that the plaintiff’s condition rendered him incapable of performing duties as a frontline police officer. Dr Illesinghe considered it would be detrimental to the plaintiff’s mental state to do so and its impact was likely to be permanent.^38
[44] At the request of the QPS, the plaintiff was interviewed by Dr John Slaughter on 18 November 2013. Dr Slaughter’s report, dated 16 December 2013, was tendered.^39 Dr Slaughter considered that the plaintiff’s symptoms fulfilled the diagnosis of chronic post-traumatic stress disorder. Dr Slaughter considered the plaintiff was at that time
(^34) T 1-30, lines 15-16. (^35) Exhibit 8, Agreed Trial Bundle, Tab C, pages 9, 11, 13 and 28. (^36) Exhibit 8, Agreed Trial Bundle, Tab C, page 10. (^37) Exhibit 8, Agreed Trial Bundle, Tab C, page 12, paragraph 5. (^38) Exhibit 8, Agreed Trial Bundle, Tab C, page 28. (^39) Exhibit 8, Agreed Trial Bundle, Tab C, page 16.
quite unfit for all police duties. He further considered that the plaintiff should not be in possession of a firearm.
[45] On 30 June 2014 QPS wrote to the plaintiff, calling upon him to retire from the QPS with effect from midnight on 19 September 2014.^40 The basis of this request was Dr Illesinghe’s opinion that the plaintiff’s incapacity rendered him permanently unfit and incapable of performing duties as a frontline police officer. The plaintiff did not accept the direction to retire. On 29 July 2014, the QPS wrote to the plaintiff dismissing him from his employment with the QPS on the basis of his medical incapacity with effect from midnight on 19 September 2014.^41
[46] Prior to his dismissal taking effect on 19 September 2014, the plaintiff was involved, as an off duty police officer, in the aftermath of another motor vehicle accident on 22 August 2014.
The events of 22 August 2014
[47] On 22 August 2014 the plaintiff was driving home in the evening with his daughter, having visited his wife in hospital. When he turned onto Stevens Road at Glenview he noticed a car parked on the side of the road with a man waving him down. The man informed the plaintiff that he had found a child walking up from the Mooloolah Connection Road. The child was approximately 10 years of age and had informed the man that his mother had crashed the car. The man informed the plaintiff that he had already called triple zero.
[48] The plaintiff instructed the man to stay where he was with the child. The plaintiff asked if it was known whether there were other children in the car and was informed that the child’s brothers and sisters were also in the car driven by their mother.
[49] The plaintiff drove to the site of the accident with his daughter still in the car. He instructed his daughter that whatever happened she was to stay in or with the car. He parked his car and put his headlights on high beam. He then made his way into the bush, utilising his iPhone torch. Approximately 30 to 40 metres into the bush he observed pieces of a motor vehicle and what was left of a windscreen. He found a female child who was already deceased. Another vehicle arrived on the scene. A young female emerged, telling the plaintiff that she was a nurse. He informed her that he was a police officer. He instructed the nurse to follow his lead. The young female then informed him, “I’m not a nurse; I’m [sic] a aged care”.^42
[50] The plaintiff then located another victim, who was a female child of approximately six years of age. The back of the child’s head was smashed in. The plaintiff flicked the child’s head back and the child then took a big gasp of air. The plaintiff then instructed the young female to put her hand behind the child’s head and just keep talking to the child. The plaintiff then went back to his car to obtain a blanket.
(^40) Exhibit 8, Agreed Trial Bundle, Tab A, page 118. (^41) Exhibit 8, Agreed Trial Bundle, Tab A, page 115. (^42) T 1-34, line 3.
“To take reasonable care not [to] cause psychiatric injury to, inter alia, any persons who, acting in the course of the performance of their duties as a police officer, may be required to respond to an accident caused by his driving and who, in the course of their attendance and the performance of their duties as a police officer, may see, hear or be required to undertake tasks causing them to witness the suffering and/or death of persons at the scene of the car accident, including the suffering and/or death of [Mr Williams] himself.”
[57] The plaintiff further pleads that:^46
“As at 17 February 2013 it was reasonably foreseeable that any person, acting in the course of their performance of their duty as a police officer, who attended on the scene of the car accident caused as a result of the negligence of [Mr Williams] … would suffer a psychiatric injury as a result of seeing, hearing and/or undertaking tasks which caused them to witness the suffering and death of others.”
[58] The defendant denies the existence of any such duty of care on the following pleaded basis:^47 (a) the risk of the plaintiff suffering a recognisable psychiatric injury or any psychiatric harm in consequence of his presence and actions at the collision was not reasonably foreseeable by Mr Williams; (b) alternatively, any foreseeable risk of the plaintiff suffering a recognisable psychiatric injury or any psychiatric harm was slight and was not such as warranted Mr Williams taking or avoiding action in respect of it; (c) Mr Williams did not owe the plaintiff a duty of care requiring him to take action to avoid any risk of psychiatric harm to the plaintiff; and (d) as a matter of policy or principle, by reason of the plaintiff’s status as a member of the QPS (a statutory office), and thereby attending the scene of the collision to exercise the powers and responsibilities conferred upon him by the Police Service Administration Act 1990 and the Police Powers and Responsibilities Act 2000 Mr Williams did not owe a duty of care to the plaintiff.
[59] The plaintiff accepts that his cause of action derives from the common law and is not a statutory cause of action.^48 The plaintiff submits however, that the statutory scheme established by the MAIA remains relevant to discerning whether or not a duty of care exists in this case.^49
[60] The preamble to the MAIA states that it is an Act to provide for a compulsory third- party insurance scheme covering liability for personal injury arising out of motor vehicle accidents, and for other purposes. The objects of the MAIA include encouraging the speedy resolution of personal injury claims resulting from motor
(^46) Amended Statement of Claim, paragraph 13B. (^47) Further Amended Defence, paragraph 8. (^48) T 3-35, lines 27 to 28. (^49) T 3-35, lines 30 to 31.
vehicle accidents and promoting and encouraging, as far as practicable, the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents.^50 The MAIA does not seek to restrict the class or category of persons who may claim under the statutory scheme. Section 5(1)(a) and (b) provides that the MAIA applies to:
“… personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury—
(a) is a result of—
(i) the driving of the motor vehicle; or (ii) a collision, or action taken to avoid a collision, with the motor vehicle; or
(iii) the motor vehicle running out of control; or
(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and (b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.”
[61] It may be accepted that the plaintiff has a prima facie entitlement to recourse under the statutory scheme as both limbs of s 5(1)(a) and (b) would be satisfied. The plaintiff submits that where he has a prima facie right to claim under the statutory scheme, “it would be an extremely serious step to deny him that recourse with a conclusion that a duty of care was not owed.”^51 The defendant submits however, that any prima facie entitlement the plaintiff has to claim under the statutory scheme is of only marginal relevance to the determination of whether a duty of care is owed. As observed by White J (as her Honour then was) in Bowditch v McEwan :^52 “… Whilst generally the existence or not of insurance is not an appropriate basis for the determination of tort liability, particularly in the case of loss protection insurance, … nonetheless where policy issues do dictate the outcome, the availability of a fund and a comprehensive scheme imposed on all drivers by the legislature will be a proper factor to take into account, Kars v Kars (1996) 187 CLR 354 at 382.
This is particularly so where the existence of liability insurance is exposed in the pleadings as, for example, s 52 of the Motor Accident Insurance Act 1994 (Qld), where the insurer is required to be joined as a defendant or, in certain circumstances, be the sole defendant. But the presence of such a scheme ought not dictate the answer to the question whether a duty of care should be imposed, particularly as it may not be truly comprehensive. To take the Queensland Act as an example, it imposes a scheme of compulsory insurance for the wrongful infliction of personal injury caused by, through or in connection with a motor vehicle but will not apply to injuries caused
(^50) MAIA s 3(e) and (f). (^51) T 3-36, lines 12 to 14. (^52) [2001] QSC 448 at [31] to [33].
[65] The principles to be applied in determining whether or not the plaintiff was owed the pleaded duty are a product of the law having, to adopt Windeyer J’s oft-quoted metaphor, “limped on with cautious steps” over the course of the last century.^55 The “old and irrational limitations” imposed at common law on actions for pure psychiatric harm have “one by one” fallen away.^56 The courts of this country have progressed, by incremental development, well beyond the once strict rule that psychiatric harm is actionable only when suffered in combination with physical injury to the plaintiff, or the plaintiff being placed in reasonable fear of physical injury.^57
[66] Decisions granting exceptions to that rule in favour of various plaintiffs have allowed the law to arrive at its current state. Today, the satisfaction of multiple control mechanisms limiting liability for the infliction of pure psychiatric harm – among them requirements that a close relationship exist between the plaintiff and the victim of the accident in question, that the trigger for the plaintiff’s psychiatric condition be a ‘sudden shock’, that the plaintiff has directly witnessed the accident, and that the plaintiff be a person of ‘normal fortitude’ – is no longer requisite to the existence of a duty of care. These requirements have been reduced in status; they are simply factors relevant to the primary question of reasonable foreseeability of psychiatric injury.^58
[67] In King v Philcox ,^59 the High Court considered the degree to which South Australian legislation^60 governing actions for pure mental harm enacts the common law. Justice Nettle observed that s 33 of the relevant legislation:^61
“… reflects and in part responds to the state of the law which had developed by the time of its enactment: that the notions of ‘normal fortitude’, ‘shocking event’ and ‘directness of connection’ were no longer conditions of liability but rather considerations relevant to the centrally determinative issue of foreseeability.”
[68] The majority made similar comments.^62
[69] The defendant however submits, and I accept, that this Court’s consideration of whether a duty of care is owed in the present case must extend “beyond a question as to whether or not there was a foreseeable risk of injury”.^63 As Nettle J further stated in Philcox :^64
(^55) Jaensch v Coffey (1984) 155 CLR 549 at 552 per Gibbs CJ, citing Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 392 per Windeyer J; see also Jaensch v Coffey (1984) 155 CLR 549 at 592 per Deane J, Homsi v Homsi [2016] VSC 354 at [51] and Perham v Connolly [2003] QSC 467 at [54]. (^56) Jaensch v Coffey (1984) 155 CLR 549 at 552 per Gibbs CJ. (^57) Homsi v Homsi [2016] VSC 354 at [28] and [32]; Bourhill v Young [1943] AC 42; Victorian Railways Commissioner v Coultas (1888) 13 App Cas 222. (^58) Plaintiff’s Outline of Submissions, paragraph 10, citing Tame v New South Wales; Annetts v Australia Stations Pty Ltd (2002) 211 CLR 317. (^59) (2015) 255 CLR 304. (^60) Civil Liability Act 1936 (SA) ss 33 and 53. (^61) (2015) 255 CLR 304 at 335, [76]. (^62) (2015) 255 CLR 304 at 322, [29] and 314, [13]. (^63) Defendant’s Outline of Submissions, paragraph 17, quoting Tame (2002) 211 CLR 317 at 330, [9] per Gleeson CJ, and citing Sullivan v Moody (2001) 207 CLR 562 and Tame (2002) 211 CLR 317 at 339, [46] per Gaudron J. (^64) (2015) 255 CLR 304 at 336, [79].
“Foreseeability alone, however, is not enough. Section 33(1) does not displace the common law imperative that ‘reasonable foreseeability’ be understood and applied bearing in mind that it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. As Gleeson CJ observed in Tame v New South Wales :
‘What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.’”
[70] Justice J Forrest similarly noted in Homsi that “the test of reasonable foreseeability alone is insufficient to found a duty of care in psychiatric injury cases.” His Honour required “something additional which the law recognises as being relevant to the imposition of a duty and which is not compromised by policy considerations.”^65
[71] In terms of the reasoning process by which the above principles should be applied to the case at hand, both parties^66 submit that this Court should again turn to Nettle J’s reasons in Philcox for guidance:^67
“This Court has not before had to determine whether a duty of care is owed in the circumstances presented by this case. Wicks made passing reference to the issue of duty of care owed to those present at the aftermath of an accident but did not deal with it in detail. Jaensch v Coffey , Tame and Gifford v Strang Patrick Stevedoring Pty Ltd all provide relevant guidance, but the issue cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant. As Deane J concluded in Jaensch , the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of ‘proximity’ that Deane J held to be the touchstone of the existence of a duty of care is no longer considered determinative, it nonetheless ‘gives focus to the inquiry’. It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a ‘judicial evaluation of the factors which tend for or against a conclusion’ that it is reasonable (in the sense spoken of by Gleeson CJ in Tame ) for a duty of care to arise. That these considerations may be tempered or assisted by policy considerations and value judgments is not, however, an invitation to engage in ‘discretionary decision-making in individual cases’. Rather, it reflects the reality that, although ‘[r]easonableness is judged in the light of
(^65) [2016] VSC 354 at [29]. (^66) Plaintiff’s Outline of Submissions, paragraph 9; Defendant’s Outline of Submissions, paragraph 28; T 3-4, lines 27-28; T3-6, lines 41-43. (^67) (2015) 255 CLR 304 at 336-337, [80].
[74] As a preliminary observation, and “[a]pproaching the matter in the first place as one of common sense and ordinary human experience”, 72 it is reasonably foreseeable that, upon discovery of a motor accident such as the one involving Mr Williams, triple zero will be dialled, and emergency services personnel, including police officers like the plaintiff, will be summoned to the scene. So much was acknowledged by Brennan J in Jaensch v Coffey, where his Honour observed as follows: 73
“Rescuers have recovered when they come to the scene of an accident to render assistance to the injured, for it was foreseeable that they would come to the scene and their arrival there was treated as being a result of the defendant's careless conduct … The law treats a rescuer’s response to the victim’s injury as the natural and probable consequence of the conduct which causes the injury: ‘The cry of distress is the summons to relief.’”
[75] Further, that it may be uncommon for a police officer like the plaintiff to arrive at an accident scene as a first responder, before any other emergency services personnel such as paramedics, does not prevent a duty being owed to the plaintiff. Arriving at an accident scene in a “statistically unlikely manner” is no impediment to a successful claim if it is reasonably foreseeable that the plaintiff may in any case be called to the scene and suffer harm there.^74
[76] In addition, the presence of Mr Williams’ parents at the scene was something occurring in the ordinary course of events. This is because, from Mr Williams’ perspective, it would not be unexpected for his parents and relatives to be present at the scene of a serious accident caused by his negligence. Accordingly, to the extent that the presence of Mr Williams’ parents contributed to the trauma experienced by the plaintiff, this should not be viewed as outside the contemplation of someone in Mr Williams’ position.
[77] Turning then to the central inquiry: whether it is reasonably foreseeable that, after his arrival at the scene, a serving police officer in the plaintiff’s position might suffer psychiatric injury. This requires attention to those considerations to which the joint judgment referred in Wicks: would sights of the kind a police officer might see, sounds of the kind a police officer might hear, tasks of the kind a police officer might have to undertake be, in combination, such as might cause a police officer to develop a recognised psychiatric illness?
[78] The plaintiff sought to draw an analogy between the facts of the present case and those of Jausnik v Nominal Defendant (No 5), a recent decision of the Supreme Court of the Australian Capital Territory.^75 The plaintiff, Mr Jausnik, was a police officer, and was involved in a high-speed police pursuit of the defendant driver, coincidentally also named Mr Williams, which began in New South Wales and eventually entered the ACT. In the course of that pursuit, Mr Williams negligently collided with a third vehicle, fatally injuring himself, severely injuring his passenger, and killing on impact all three
(^72) King v Philcox (2015) 255 CLR 304 at 337, [82] per Nettle J. (^73) (1984) 155 CLR 549 at 569 per Brennan J, quoting Wagner v. International Ry. Co (1921) 232 NY 176 at 180 per Cardozo J. (^74) King v Philcox (2015) 255 CLR 304 at 338, [85] per Nettle J. (^75) [2016] ACTSC 306; Plaintiff’s Outline of Submissions, paragraph 18; T 3-38, lines 1-40.
occupants of the vehicle with which he collided, including an infant. Mr Jausnik, along with his fellow police officer, Mr Hannaford, who had been driving the police vehicle, immediately attended at the scene. Mr Jausnik as a result suffered psychiatric injury, and brought proceedings against the Nominal Defendant in place of Mr Williams. The Nominal Defendant in turn joined Mr Hannaford, together with the State of New South Wales as employer of the police officers.
[79] Though claims for pure psychiatric harm in the ACT are also governed by statute,^76 Mossop AsJ’s findings in respect of Mr Williams’ duty of care to Mr Jausnik are nonetheless of assistance:^77 “… what must be shown is that Mr Williams should have foreseen that Mr Jausnik might suffer a recognised psychiatric illness as a result of Mr Jausnik being required to attend to persons suffering injuries caused by Mr Williams’ negligent driving. Put as a general proposition the question becomes: should a negligent driver have foreseen that a police officer of normal fortitude, attending the scene of an accident caused by the driver involving the death and injury caused in the present case, might suffer mental harm? When so expressed the answer is clearly ‘yes’. It is reasonably foreseeable that a police officer may suffer mental harm when attending the scene of an accident such as occurred here. The threshold imposed by s 34 is passed.”
[80] Similarly, the death and injury involved in the scene at which the plaintiff attended were described by him as “horrific”. In oral submissions, counsel for the plaintiff stated that while photographs of the accident had been tendered, he “did not necessarily invite” the Court to view them: “they show ghastly sights and sights that could scarcely fail to cause even the strongest of will to experience disquiet.”^78 I accept that description; it went unchallenged by the defendant.
[81] While the death and injury in Jausnik was necessarily greater than in the present case, due to there being one fatality here and four in Jausnik, this does not, in my view, render the plaintiff’s mental harm less foreseeable than Mr Jausnik’s. The cases cannot be separated simply by cold calculation of death toll. Mr Williams being the sole victim in fact lent a degree of intimacy to the plaintiff’s involvement. Mr Williams suffered fatal injuries, and the plaintiff, essentially single-handedly for a time, sought to maximise Mr Williams’ chances of survival by moving Mr Williams’ head to clear his airway and trying to encourage him to stay alive. He was frustrated by what he perceived as Police Communications’ interruption of his focused efforts. His bare hands at one point were covered in matter from Mr Williams’ head. He saw Mr Williams’ “very squashed” legs. He sought to prevent further injury to Mr Williams by directing firefighters not to cut Mr Williams out of the vehicle. The plaintiff’s experience was made all the more traumatic by the presence of the dying man’s parents at the scene; their presence, as I have previously observed, was not unexpected.^79 After having, quite naturally, sought to reassure Mr Williams’ mother that her son would live,
(^76) Civil Law (Wrongs) Act 2002 (ACT) ss 34-36. (^77) [2016] ACTSC 306 at [112]. (^78) T 3-36, lines 37-41. (^79) See [76] of these Reasons.
