I have previously reported on [Name Redacted] v AAI Limited [2019] QSC 7 (see Deceased driver liable for police officer’s PTSD (February 1, 2019)). The essence of the case was that a police officer who was first on scene at an accident attempted to keep a critically injured man alive pending the arrival of paramedics.  When paramedics did arrive they indicated that the person’s injuries were not survivable and the plaintiff took the victim’s mother to say goodbye to her son on the roadside.  Notwithstanding 20 years in the police force this was the first time he had been so closely involved with a dying person. Given the age of his own children he couldn’t help but superimpose his own son’s face on his memory of the deceased and he developed Post Traumatic Stress Disorder.

Police and other rescuers see many tragic incidents and attributing PTSD to one is difficult if not impossible but in this case the evidence was that it was this event that caused his symptoms and led to the officer being permanently unfit to return to policing.  He sued the deceased driver (really the insurer) alleging that the driver was liable under common law negligence for his PTSD.  The officer was successful at first instance and received a verdict for damages in excess of $1m.  AAI appealed to the Court of Appeal.  On 10 December 2019 the Court of Appeal (Sofronoff P and Philippides and McMurdo JJA) unanimously rejected the appeal and upheld the verdict in favour of the injured officer: AAI Limited v [Name Redacted] [2019] QCA 293.

Sofronoff P (ie President Sofronoff, in effect the Chief Judge of the Court of Appeal) delivered a judgment which the other two judges agreed with. He said (at [10]-[11]):

The appellant’s written outline of argument said:

“This appeal; as did the trial; raises a novel and policy laden question – whether tort law in Australia should recognise for persons who in the course of their occupation are exposed to the highly distressing aftermath of a traumatic event an entitlement to recover for pure psychiatric injury against the person whose lack of care caused the traumatic event, the aftermath of which they were professionally responding to.

Put in that way, the appellant must fail.

Both the appellant and respondent agreed that the law would allow the plaintiff/respondent to recover as it was the negligence of the deceased driver that caused the plaintiff’s injuries.  The appellant’s case (at [13]-[17]) was that:

… despite proving the conventional elements of the cause of actions, the respondent’s status as a police officer denied him a right to recover because of “policy considerations” which render the foreseeability of injury “unreasonable”.

The appellant put forward three policy considerations that were said to deny the existence of liability.

First, it was submitted that if a police officer could recover then that would create an indeterminate class of prospective plaintiffs which would include police officers, firefighters, paramedics, doctors and nurses, as well as some non-medical staff at a hospital.

Second, it was said that an “extension of the duty of care” to this class would constitute “an inapt tool” as a means of responding to loss constituted by psychiatric harm. An “obvious and apt tool” to deal with the prospect of such harm is by recourse to the liability of the employer of these prospective plaintiffs.

Third, it was submitted that, if the respondent could recover, then a person in the position of the respondent in this case will recover damages if the person who caused the damage is insured but will not recover if the person responsible is not wealthy or insured.

Whilst not described this way that sounds like AAI were arguing for what the American’s call the ‘firemens’ rule’; that is a rule that a professional rescuer cannot sue the person who created the very emergency that they are there to respond to – see http://www.firelawblog.com/category/firemens-rule/

His Honour reviewed the earlier case law (including Wicks v State Rail Authority discussed on this blog at Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).  He concluded (at [30]):

The authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).

Discussion

In an earlier post, commenting on a US court case (Another source of compensation for injured rescuers (November 26, 2015)) I said:

… it’s another example of a person being held responsible for the consequences of their actions which include exposing rescuers to danger.  For rescuers, particularly those that may be affected by various limitations in workers compensation laws, it may mean that they have an alternative source of compensation to make good losses that they suffer in the course of their duties.

In my post on the original decision in this case (Deceased driver liable for police officer’s PTSD (February 1, 2019)) I said:

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.

The Court of Appeal has confirmed that outcome.  A ‘person owes a duty of care, not only those directly injured by their negligence, but also those that come to the rescue, [and that] is not limited to physical injury cases.’

That is not to say that suing for psychiatric injury will be easy. First responders, particularly those with long careers will have been exposed to many traumatic events that build up over time.  Being able to say that it was ‘this accident’ and ‘this defendant’ that caused symptoms to manifest may be difficult, but in the right circumstances not impossible.

Rescuers, paid and volunteer, should keep in mind that if they are injured as a result of their response to an event, the person that caused the accident owed them a duty of care and that it may be worth considering a common law action if workers or volunteer compensation schemes are insufficient. Of course, anyone would need to obtain specific and detailed legal advice before running off to court!

See also: