A Queensland police officer who attended the scene of a fatal car accident in 2013 has been awarded in excess of $1 million in damages by the Supreme Court of Queensland.
The accident involved a single vehicle only. The driver, affected by drugs and alcohol, lost control of the vehicle, causing it to leave the roadway and collide with a tree. The then senior constable brought a claim for damages for the psychiatric injuries he suffered as a consequence of attending the scene, administering first aid to the injured driver and shortly afterwards, witnessing the driver die. The claim was brought by the police officer against the CTP insurer of the vehicle.
Arguments at the trial
It was not disputed that the accident occurred due to the negligence of the driver. The primary issue in dispute was whether the driver of the vehicle owed a duty of care to the plaintiff.
The plaintiff’s case
The plaintiff’s case was that the driver of the vehicle owed a duty of care to not cause psychiatric injury to any persons who, acting in the course of their employment as a police officer may be required to respond to and attend the scene of an accident caused by his driving (and see, hear or be required to undertake tasks causing them to witness death and/or suffering of persons at the scene).
The police officer further alleged that it was reasonably foreseeable that any person acting in their role as a police officer required to attend the scene, would suffered a psychiatric injury.
The insurer’s case
The insurer denied that the deceased (it’s insured) owed any duty as alleged by the plaintiff. It advanced several bases for adopting that position including:
the risk of the officer suffering a psychiatric injury from his presence at the scene of the accident was not reasonably foreseeable by the plaintiff;
alternatively, any risk of the plaintiff suffering such harm was slight and did not warrant the plaintiff taking action in respect of it;
the driver did not owe the plaintiff any duty of care requiring him to take action to avoid causing the plaintiff psychiatric harm;
no duty of care was owed to the plaintiff as a matter of policy (having regard to powers conferred upon him by other legislation).
The insurer suggested that the issue of whether a duty of care was owed in these circumstances had not been considered by Courts previously so in that sense the case was novel.
Decision
His Honour Justice Flanagan in approaching the issue first considered the concept of foreseeability, and after referring to a New South Wales Decision of Wicks[1] (a case in which two police officers sued the State of New South Wales for psychiatric injuries caused by attending the scene of a train derailment), his honour framed the relevant enquiry as
“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.”
The Court considered the role undertaken by the plaintiff at the scene of the accident and whether it was appropriate to refer to him as a ‘rescuer’. The plaintiff gave evidence that he adjusted the driver’s head to open his airway and spoke to him in words to the effect “come on mate, don’t give up”. The plaintiff also comforted the driver’s parents and assured him that he would be OK. The Court concluded in those circumstances that the plaintiff should in fact be classified a rescuer (rather than a mere bystander to the accident) and that his actions were performed in the ‘aftermath’ of the accident (as that concept was considered by Deane J in Jaensch v Coffey).
The policy issues raised by the insurer included what can broadly be described as a ‘floodgates’ argument to the effect that permitting the plaintiff in this case to recover damages would “unacceptably expand the categories of potential defendants and claimants in respect of psychiatric harm, and expose defendants to increased liability” (see [132]) . This argument was rejected on the grounds that the common law test already imposes strict requirements with respect to claims based on pure psychiatric injuries.
The insurer also submitted that the public are entitled to expect that police officers are equipped to avoid or resist psychiatric harm. Whilst agreeing that a policer officer might be better equipped than someone without training, on the facts of this claim, the plaintiff’s response to the accident (one which he was required to perform in accordance with his legal responsibilities) exposed him to deeply distressing and personalised circumstances.
The Court found in the circumstances that a duty of care was owed by the deceased driver to the plaintiff.
Causation and quantum
The plaintiff’s damages were reduced by 30% to reflect the degree of possibility that the plaintiff’s pre-existing vulnerability, coupled with the impact of his attending another fatal accident would have lead to the same outcome.
Conclusion
The insurer has filed a notice of appeal against the decision. Further information to follow shortly.
[1] Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
Further inquiries:
Tom Rynders, QLS Accredited Specialist
P:(07) 3009 6555 E: trynders@crlawyers.com.au
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