[Name Redacted] v AAI Limited [2019] QSC 7 (30 January 2019) was a trial in the Queensland Supreme Court before His Honour Flanagan J.   The plaintiff was a former senior constable with the Queensland Police Service. The plaintiff sued the compulsory third party insurer of the motor vehicle seeking damages for post-traumatic stress disorder that he alleged was caused by the negligence of the driver who died at the scene.

The incident

On 17 February 2013 the plaintiff attended a single vehicle motor vehicle accident.   On arrival the driver was alive but seriously injured.   The plaintiff attempted first aid and tried to encourage the driver to not ‘give up’ ([26]-[30]). The driver’s parents arrived at the scene and the plaintiff also tried to reassure them and communicate to the driver that his parents were there ([31]).   Paramedics and the fire brigade arrived and took over treatment and the patient’s extrication.  The paramedics advised the plaintiff that the driver ‘was going to die’ ([35]).  The plaintiff in the company of another police officer and a supervising paramedic advised the driver’s parents that their son was going to die.  The plaintiff took the driver’s mother to her son so she could say good-by. The driver died at the scene ([35]).  At [36]:

The plaintiff reflected on why this particular incident, distinct from all the other experiences he has had as a police officer, affected him as it did.  The plaintiff explained as follows: [31]

“And I was just thinking, whether it was then, now, or since – because I’ve kids meself – you see them coming into the world; you never imagine burying them, do you?  But you’d never imagine seeing that.  It’s been rattling around my mind, why – all this stuff that I’ve said – why this hit me so hard.  And it struck me last night, because I’d spoken to Dominic: I’d never seen that before.  I had never seen that before.  I’d never seen anybody die before me eyes.  Fifty years old, two decades in the job, and I’ve never seen that before.  Because we clean up.  They’re either dead or they’re dying and there’s people taking care of that; we just clean up, and we investigate.  That’s what we do.  That’s what coppers do.  But – took me about two years to remove my son’s face from that – sorry if that’s not relevant, but … his face was superimposed on the lad’s – on the lad’s face.  I just kept seeing me son.”

The aftermath

Immediately after this incident the plaintiff began to display symptoms including drinking ‘a lot’, becoming ‘angry with people and over-reacting to situations’ and contemplating suicide and harming others ([38]).  He sought medical assistance.   A treating doctor reported (at [40]):

“[The plaintiff] 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).”

Medical opinions confirmed that the plaintiff was permanently unfit to return to work as a police officer and he was dismissed from Queensland Police on 19 September 2014 ([45]).

The legal issues

The insurer stood in the shoes of the deceased driver.  The first issue is whether the defendant (or, as the defendant was the insurance company, the driver) owed a duty of care to the plaintiff.

Establishing a duty of care

Foreseeability of psychiatric injury

This was a case of psychiatric injury, not physical injury.  There have been many attempts by the Common Law to limit liability for psychiatric injury (see also Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010)).  Today the key question is whether or not it is foreseeable that the defendant’s negligence will expose someone to a risk of psychiatric injury.  At [66] Flanagan J said (emphasis added):

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.

At [73]-[81] Flanagan J said:

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

As a preliminary observation, and “[a]pproaching the matter in the first place as one of common sense and ordinary human experience”, 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:

“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.’”

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.

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.

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?

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. 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 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.

Though claims for pure psychiatric harm in the ACT are also governed by statute, Mossop AsJ’s findings in respect of Mr Williams’ duty of care to Mr Jausnik are nonetheless of assistance:

“… 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. …

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.” I accept that description; it went unchallenged by the defendant.

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.  After having, quite naturally, sought to reassure Mr Williams’ mother that her son would live, the plaintiff stood alongside her as she watched her son die.  To adopt the words of Mason P in FAI General Insurance Co Ltd v Lucre …“[o]ne does not need to be a psychiatrist to understand the reality of the respondent’s reaction.” It was reasonably foreseeable.

Foreseeability is not enough

But reasonable foreseeability, that is that the injury can be (or should have been) foreseen by a reasonable person is only part of the test to establish a duty of care.  On its own, it is not enough.  Essentially what is required is an analysis of the relationship between the defendant and the plaintiff to determine whether or not the defendant owed the relevant duty or obligation, not to expose the plaintiff to the risk of injury.

The plaintiff did not see the accident but he saw the aftermath

The defendant argued that the duty of care (if there was one) only extended to those that observed the actual accident, not those like the plaintiff who came upon it some 10-15 minutes later.  The court rejected this principle that was said to depend on much earlier cases.  At [88] Flanagan J quoted Deane J from the High Court of Australia who said in Jaensch v Coffey (1984) 155 CLR 549:

“Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident: both common sense and authority support the conclusion that the requirement of proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the aftermath of the accident at the scene …”

At [93] Flanagan J concluded that:

What the plaintiff saw at the scene falls within the ambit of Deane J’s concept of an aftermath.  That concept extends to extraction and treatment, along with ambulance transport.  The plaintiff, as a first responder, arrived at the scene before any ambulance, and before the firefighters who eventually extracted Mr Williams from his vehicle.

The plaintiff was not a ‘mere bystander’

The defendant argued that a duty was not owed to a ‘mere bystander’ that is (at [101]) ‘a person who witnesses an accident or its aftermath but is entirely unrelated to any of the victims’.  Flanagan J was of the view that the law did not necessarily deny a ‘bystanders’ claim ([102]) but in any event the plaintiff was clearly not a mere bystander.  At [103] he said:

… the plaintiff could not sensibly be described as a mere bystander to Mr Williams’ death.  He took steps to keep Mr Williams alive.  He encouraged Mr Williams.  He sought to comfort Mr Williams’ parents.  He instructed firefighters not to cut Mr Williams from his vehicle until paramedics arrived.  Having been informed that Mr Williams was near death, he assisted Mr Williams’ parents in saying a final farewell to their son and he observed Mr Williams pass away.

The plaintiff was a rescuer

Further the plaintiff was in an established category of people to whom a duty of care is owed, ie a rescuer.    In Alcock v Chief Constable of South Yorkshire Police Lord Oliver said (and quoted at [107]):

It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference.

Flanagan J reviewed earlier cases and confirmed (at [118]) ‘that the plaintiff may be classified as a rescuer, he is entitled to recover, subject to the policy concerns’.

Policy concerns against finding a duty of care

The ‘policy concerns’ raised by the defendant were that:

… the plaintiff’s status as a police officer – that is, a holder of statutory office – at the time of the accident informs the plaintiff’s relationship with the deceased, Mr Williams, and precludes any duty being owed to the plaintiff. This submission comprises three primary arguments, which may be summarised as follows:

(a)          A duty being owed to the plaintiff would discourage members of the public from reporting incidents requiring police attendance, and is therefore inconsistent with the public benefit aims of the legislative scheme establishing and governing the QPS.

(b)          A duty being owed to the plaintiff would expose defendants to unjustifiably expanded liability in respect of psychiatric harm.

(c)          Members of the public are entitled to expect that a police officer deployed to the scene of an accident will be equipped, by way of sufficient training and experience, to avoid pure psychiatric harm.  Injury of that type is accordingly not reasonably foreseeable, and no duty arises.

Flangan J rejected all of those arguments.

With respect to the argument that people may not call police for fear of subjecting officers to a risk of psychiatric harm, and therefore exposing themselves to a risk of liability, Flanagan J said (at [126], emphasis added):

I note at the outset that, as a matter of established law in this country, a civilian may already be liable for physical harm suffered by police officers while responding to an incident, such as a car accident or fire, caused by the civilian’s negligence.  No ‘firefighter’s rule’ barring emergency service personnel from claiming for physical injuries has been imported into Australian courts from their US counterparts.  This duty in respect of physical injury to police officers is yet to be denied on the basis that it may deter members of the public from reporting emergencies.  I see no reason why a duty in respect of psychiatric harm should be said to have such a deterrent effect where the same is not said of physical harm.

(The ‘Fireman’s [sic] Rule’ applies in some US states to the effect that one cannot owe a duty to firefighters not to create the very emergency that they are there to respond to.  (For a discussion on the Fireman’s Rule see the various posts on Curt Varone’s Fire Law Blog – http://www.firelawblog.com/?s=Fireman%E2%80%99s+Rule)).

Accidents will still be reported and drivers are obliged to report accidents even where they may expose themselves to a risk of criminal penalty.  That they may be liable for causing injury to police officers and other rescuers will not reduce the chance of accidents being reported.

The risk of opening the floodgates so everyone can sue for psychiatric injury was rejected at [135] ‘courts are equipped to control any increase in claims by adopting a principled approach to the particular facts of each case…’

As for a reasonable expectation that police will be trained to avoid injury that may be relevant in a physical injury case.  If a ‘police officer were confronted at an accident scene with “jagged metal when leaning into the vehicle to retrieve an item or to provide first aid to a victim” and cut himself or herself on that metal through his or her own failure to approach the scene safely’ ([144]) then there may be no liability but psychiatric injury is a different matter.  As Flanagan J said at [148]:

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

Conclusion on Duty of Care

Flanagan found that the deceased driver did owe the relevant duty of care to the plaintiff that being a duty not to expose the plaintiff to the risk of psychiatric injury due to his, that is, the driver’s, negligence.

Breach

It was not disputed that the collision was caused by the negligence of the driver who was under the influence of methamphetamines, amphetamines and marijuana when he drove his car into a tree.

Causation

The defendant’s breach (his negligent driving) had to cause the plaintiff’s injuries.  The problem for police and other rescuers is that they attend multiple traumatic events and saying that their illness, in this case the PTSD, was caused by ‘this’ accident is difficult.  In this case the matter was compounded by evidence of other traumatic events.

The defendant accepted that the accident where Mr Williams died was a cause of the plaintiff’s injuries but not the only cause and so the damages payable should be reduced to reflect the contribution of this accident among many.

In particular, on 22 August 2014 the plaintiff, whilst off duty, stopped at a car accident.   The vehicle had left the road and the plaintiff did a search of the scene by mobile phone torch light. He located two deceased children and a third, critically injured child.  At [53] Flanagan J said:

… the plaintiff in recalling the events of 17 February 2013 became very distressed.  This is to be contrasted with how he gave his evidence in recalling the events of 22 August 2014.  He did not become upset while recalling these events and demonstrated a degree of detachment.  The plaintiff gave the following explanation as to why he subjectively considers the first incident the worst of the two experiences:

“Mr [Plaintiff], in your mind, which was the worst of the two experiences, February 2013 or August 2014?— I wouldn’t want to be disrespectful to the dead, and I know there’s a mum out there who doesn’t have a son any more.  I – I sort of – in dealing with carn – the carnage is – it’s not hard to deal with the carnage.  It’s just – it’s their bodies.  And that might sound quite mercenary.  You don’t get attached as a copper emotionally.  That’s a really bad thing to do.  You try to just be pragmatic.  You’re there to investigate.  That’s your job.  That’s what they always used to say.  You’re there to investigate.  If you’ve got to deal with a body, well, you just deal with it.  If you’ve got to deal with blood and guts, that’s just the – that’s just the nature of the job.  Never bothered me.  Never bothered me.  You see, that one – I – I don’t want – I don’t want to put these on tiers of brutality because a mum and three dead kids is carnage.  It was just carnage, you know.  And I’d seen it a hundred times before but that first one was carnage.  It wasn’t as much carnage because there was less dead bodies but it sort of just tapped into me with his mum and I found out he got three kids.  He hadn’t long been married.  It’s just horror stories.”

The court accepted (at [161]) that the plaintiff ‘had a pre-existing vulnerability to suffering a psychiatric injury such as PTSD’. The plaintiff’s ‘pre-existing vulnerability’ suggested that if he had not developed PTSD as a result of this accident then it would have been the second one or some other event that he would, inevitably, be exposed to as a police officer.   In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, quoted at [177], Ipp JA said:

Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.

The appropriate allowance, in Flanagan J’s opinion was 30%.  The agreed damages, all else being equal, were $100000.  Allowing the 30% discount to reflect that this injury was likely to be suffered at some point in the future even without the defendant’s negligence meant an award of general damages of $70 000.   With awards for past and future economic losses, loss of superannuation and other matters the total award was $1,092,947.88.  The plaintiff would have to refund amounts already received from Workers Compensation but no doubt this was a more generous verdict than available under Workers Compensation law.

Discussion

The first thing to note is that this is a ‘first instance’ decision of the Supreme Court.  It may be subject to appeal, we don’t know.

In terms of developing the law, first responders suing those who negligently cause the accident and thereby expose the responders to risk of injury is not new (but it’s not common; see “Cop sues offender’s family” (May 22, 2013); see also Police officer sues mental health patient for battery (December 18, 2018)).  This case confirmed that the rule that a person owes a duty of care, not only those directly injured by their negligence, but also those that come to the rescue, is not limited to physical injury cases. A plaintiff has a duty to avoid exposing people to a foreseeable risk of psychiatric injury and that extends to not driving a car negligently so as to force responders to attend, witness the carnage and become active parties in their own (or someone else’s) death.  If the rescuer can show that the accident caused injury, physical or psychiatric, they can sue to recover their damages.

Whether that is a productive exercise depends on the damages suffered and the extent of compensation from other sources, in particular Workers Compensation.  Suing the negligent defendant does however remain an option for those in need.