In Ivers v Mehdi [2020] ACTSC 112, Justice Burns of the ACT Supreme Court found that the plaintiff was entitled to recover compensation from the driver at fault. On 25 November 2016 Ms Ivers was getting into her car in a shopping centre carpark. At [30]-[33] Burns J described what happened:

… It was at this point that she heard somebody “screaming for help”.

The plaintiff recalled that she “initially just sat there listening”. She did not know where the screaming was coming from but thought it may be behind her. She turned to look over her right shoulder and saw a bright blue Ford Ranger reversing into the wash bay. The plaintiff said she continued to hear screams and as she looked back at the wash bay again, she saw a “bald head and an arm outstretched, laying across the wash bay toward the back”. Mr Atkinson was lying parallel to the back wall, with his right arm outstretched, and his head and arm on the passenger’s side of the car. The plaintiff said that the rear wheel of the vehicle appeared to be almost on Mr Atkinson, and it “looked like it was on his arm or on his shoulder somehow”.

The plaintiff said she got out of her car and saw the Ford Ranger “rock backwards and forwards”, as if there was a log parallel to the back of the car and the car had to accelerate to get over it. The plaintiff ran towards the car, waving her arms around for the driver to stop. When she was halfway to the car, the screaming stopped, and the plaintiff believed Mr Atkinson was dead. However, the plaintiff then saw Mr Atkinson’s fingers move, and realised he was still alive.

The plaintiff said she told the driver to move forward a couple of metres, so the car was out of the bay, and no longer on top of Mr Atkinson. After the car moved, the plaintiff said she reached Mr Atkinson and saw that he was lying down, trying to get up. The driver and the plaintiff assisted Mr Atkinson to his feet. The plaintiff and the driver walked Mr Atkinson a couple of metres outside of the wash bay, but Mr Atkinson’s legs gave way and he landed face down on the ground. The plaintiff asked Mr Atkinson to notify his wife, and the plaintiff called 000, requesting police and ambulance attendance.

As a result of her involvement in this incident the plaintiff developed Post Traumatic Stress Disorder (PTSD) that affected her work, social and personal life. She sued Mr Mehdi, the driver of the Ford Ranger, and the Compulsory Third Party insurer for damages caused by his negligence.  Section 34 of the Wrongs Act 2002 (ACT) says (emphasis in original):

(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include—

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

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and

(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and

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

(3) For the application of this section in relation to consequential mental harm to a person, the circumstances of the case to which the court must have regard include the nature of the bodily injury out of which the mental harm arose.

(4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.

The relevant question was, therefore, whether a reasonable person in Mr Mehdi’s position would have foreseen that a person of normal fortitude … might, in the circumstances of witnesses a pedestrian being struck by a reversing vehicle in circumstances where the immediate appearance was that the person had suffered potentially fatal injuries, suffer a recognised psychiatric illness.

At [157] Burns J said:

As someone who witnessed at least part of the accident, who was present at the scene and ran to provide assistance to Mr Atkinson, the plaintiff falls within the class of persons whom the first defendant should have foreseen may suffer a recognised psychiatric injury if he negligently collided with a pedestrian.

As such the defendant owed a duty of care to Ms Ivers, a duty that he breached when he negligently knocked down the pedestrian, Mr Atkinson.  Mr Mehdi, via his insurer, was ordered to pay damages of $176,312.43.

Discussion

Earlier case law has ruled out compensation for mental harm for merely observing an accident even a traumatic accident. Traditionally there has to be some connection with the accident eg that the person killed or injured is a family member of the witness or the person who suffers psychological injury is also exposed to risk of physical injury. This list is reflected in s 34(2) and see also Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).

But there is no absolute requirement to that effect (see Jaensch v Coffey [1984] HCA 52 discussed at [142]). The issue is, at least under the ACT legislation, whether it is foreseeable that a person ‘in all the circumstances’ might be put at risk of psychiatric injury. Section 34(2) lists some relevant circumstances, but that list is not exclusive, ie it is not a complete list of the only things to be considered.

It would, I think, be fair to describe Ms Ivers as a ‘rescuer’.  She did not merely observe the accident, she ran over and told the driver of the Ford that he had struck a pedestrian and to move his vehicle forward. She assisted Mr Atkinson. She was not merely an observer. Although His Honour did not use the term ‘rescuer’ he did identify that the relevant circumstances were (at [159]):

… that, from her vantage point, she believed that Mr Atkinson had been killed or seriously injured. She ran to alert the first defendant to the presence of Mr Atkinson under the car, and then provided assistance to Mr Atkinson.

His Honour accepted the

… clear opinion of Dr Allnut that what the plaintiff perceived and her actions in coming to the assistance of Mr Atkinson, in combination, might cause a person of normal fortitude to develop a recognisable psychiatric illness.

That His Honour did not describe Ms Ivers as a ‘rescuer’ or good Samaritan is irrelevant.

As noted in other discussions on this blog, Australia does not have an equivalent of the United States’ Firefighters rule.  In an earlier post (Negligent occupier to repay workers compensation paid to injured NSW firefighter (February 27, 2020) I said:

… there is no equivalent of the ‘firefighters’ or ‘firemens’ rule in Australia (see Court of Appeal upholds verdict in favour of injured Queensland police officer/rescuer (December 18, 2019)’ see also see http://www.firelawblog.com/category/firemens-rule/).  To quote from the decision the subject of that earlier post ([Name Redacted] v AAI Limited [2019] QSC 7, 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 [or fire fighter] does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood), psychiatric (Jausnik) or both (Hirst).

The implications of that is that it is again confirmed that if ‘a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken’ then a defendant owes a duty of care not to expose the person to that risk. That means they have a duty to a person like Mr Atkinson not to run them over, and they have a duty to others not to expose them to a risk of psychiatric injury by running someone over. And that duty applies whether the person who suffers the psychiatric injury is a professional rescuer or not.

Conclusion

This case confirms that person who suffers a psychiatric, or physical, injury due to the negligence of another, in circumstances where that injury is foreseeable, can sue the negligent tortfeasor for their losses.  That applies to good Samaritans like Ms Ivers and, in the absence of a the ‘firemens’ rule’ [sic], that is also true for professional rescuers.

For related discussions see: