Wicks; Sheehan v State Rail Authority of New South Wales known as State Rail

[2010] HCATrans 15

Replacement Transcript

[2010] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S262 of 2009

B e t w e e n -

DAVID COLIN WICKS

Applicant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL

Respondent

Office of the Registry
  Sydney  No S263 of 2009

B e t w e e n -

PHILLIP KEVIN SHEEHAN

Applicant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 11.38 AM

Copyright in the High Court of Australia

__________________

MR B.J. GROSS, QC:   May it please the Court, I appear with MR K.O. EARL, for the applicants.  (instructed by Baker & Edmunds)

MR P.M. MORRIS:   May it please your Honours, I appear with MS B.A. ARSTE for the respondent.  (instructed by DLA Phillips Fox Lawyers)

GUMMOW J:   We will hear from you first, Mr Morris.  I take it we can deal with both matters together?

MR MORRIS:   Yes, your Honour.  Your Honour, the matter concerns the interpretation of a group of words, being “killed, injured or put in peril”.  Whilst the words have been replicated in a number of statutes around Australia the contest in this matter is whether the words “being put in peril” can be equated to a situation where all the evidence indicates only someone being potentially in peril.

GUMMOW J:  This is section 30(2)(a) of the Civil Liability Act (NSW), is that right?

MR MORRIS:   That is right.  Your Honour, what was common to the judgments at first instance and in the court below was a finding of fact that no particular event had been seen which could be considered as possibly causative of a mental injury.  What the legislation requires is the perception of someone being killed, being injured or being put in peril.  If peril alone was required the legislation, one would think, would be expressed in terms of seeing someone dead, injured or in peril.  The use of the present tense “being” suggests that the requirement is a perception ‑ ‑ ‑

GUMMOW J:   The first question about section 30 is headed “Limitation on recovery for pure mental harm arising from shock”, right?

MR MORRIS:   Yes, your Honour.

GUMMOW J:   This Act cuts down common law rights.

MR MORRIS:   It does, your Honour.

GUMMOW J:   Why should it be given a generous interpretation?

MR MORRIS:   Well, your Honour, it has to be given an interpretation within the meaning of its words.

GUMMOW J:   Of course.

MR MORRIS:   And the words require the perception of an occurrence.  There is not a perception of an occurrence.  Your Honour, what the applicant seeks is an interpretation of clear words which add up to this, that if you see someone at risk of getting worse, then you have an entitlement.  It does not matter whether that perception that someone ‑ ‑ ‑

GUMMOW J:   Now, there was a division in the Court of Appeal, was there not?

MR MORRIS:   Not in a real sense, your Honour.  The division was on the boundaries of entitlement concerning occurrence, not the boundaries of entitlement concerning perception.  In other words, your Honour, there are a number of examples used by Justice Beazley and Justice McColl.  Justice Beazley used the example of a stanchion on a railway line being dislodged by a derailment of a train, but not falling until during the rescue process; that would extend the event, according to Justice Beazley. 

Justice McColl used two examples; one of a vehicle where petrol was leaking that might explode - in other words, the perception of an immediate danger – and another example concerning a tipping carriage.  Common to the views of the justices was this, your Honour, that a perception of a threatened immediate risk was required.  This is consistent with what the legislation has done which is take perception of events and mental injury back to a notion of shock.  You need to see someone killed, you need to see someone injured, you need to see someone at immediate risk.  For example, a train just missing somebody or I think a case in the 1880s of Coultas, a buggy being negligently allowed onto the railway line and the passenger in the buggy thinking that she was going to be injured.

GUMMOW J:   What is the significance of the phrase “at the scene” in subsection (2)(a)?

MR MORRIS:   Two significances, the first is that acknowledged by the parties in the court below, which is that you have to witness at the scene, as distinct from witness through a medium – television or otherwise – an event, you have to actually be there.  The trial judge felt that “at the scene” meant at the derailment, at the actual occurrence and he added another feature, another gloss to it, that is, you had to see the actual event.  Now, the debate in the court below as ‑ ‑ ‑

GUMMOW J:   Well, insofar as “at the scene” takes out the position of people who see things on TV that overcomes the Hillsborough Case, does it?

MR MORRIS:   Only in part.  There was a mixture of facts.  There are a number of categories of claimant, some who saw it on TV and some who were actually at the ground.

GUMMOW J:   Yes, go on.

MR MORRIS:   Your Honours, there are two real difficulties with the application and with this appeal.  Nothing on the facts was actually seen, other than injured people said to be potentially at risk.  So no event was seen, no continuation of the derailment, no collapse of something that had been disturbed, no immediate threat.  If you think in terms of the “killed, injured” and then disjunctive “put in peril” you would think, on a proper construction of this legislation, that what was required was something happening of a shocking nature which did not kill or did not injure, but looked like it might.  There was no fact found in this case of that nature.  There was no observation by either of the applicants ‑ ‑ ‑

GUMMOW J:   What is the significance of the word “being”?

MR MORRIS:   Present tense, have to be there, have to see it.  Being put in peril, not being in a state where already injured you might suffer some deterioration. 

GUMMOW J:   That is a question of construction.

MR MORRIS:   Well, your Honour, in our respectful submission the construction is clear and in the courts below that was the same construction.  You have to see something happen and both Justices Beazley and McColl indicated on these facts there was nothing to see in terms of an occurrence which might be of a shocking nature which might lead to pure mental injury. 

Your Honours, if I can put an example of the difficulties with this application and claim in terms of a motor vehicle accident because this legislation applies to motor vehicle accidents as well.  If someone comes around the corner and finds a devastating motor vehicle accident with five dead people and body parts separated there is no doubt that this legislation would not provide an entitlement to the person who came around the corner and saw this.  If one of the people in the motor vehicle accident had a pulse then, on the applicant’s argument, that would be sufficient to allow the possibility of an entitlement because there was one person who might deteriorate further.  It does not matter, on the applicant’s argument, that ‑ ‑ ‑

GUMMOW J:   This is your paragraph 19 on page 123?

MR MORRIS:   Yes, your Honour, it leads to ridiculous results.  There is no doubt that there would be an entitlement if some event occurred where somebody was put at risk and it was seen to occur.  But, in the absence of such an entitlement, you get these anomalous results where a scene of devastation, such as the Waterfall rail disaster, would not allow, as a possibility, an entitlement unless there was one person left alive no matter how disturbing the events. 

Your Honour will see from the history in this matter that one of the applicants, Mr Wicks, had the experience in his past life as a policeman of going to an incident where a suicide occurred in front of a train and his job was to pick up the body parts of the dead person and then after that to report the occurrence to the parents.  Devastating, likely to cause psychiatric injury and, on some of the evidence, probably did cause psychiatric injury.  On this legislation Mr Wicks would have no entitlement to sue if the railway driver could have stopped and avoided the event.  There had to be a pulse in whoever he saw at the scene of the accident.

That kind of interpretation, in our respectful submission, is not reasonably open and would not attract this Court in a review.  There are undoubtedly boundaries of entitlement that will require review, but your Honours would want, we would submit with respect, a case where the claimants for that entitlement saw something of a shocking nature occur, as distinct from arrive and see the consequences of what had already occurred.

Your Honour, there are difficulties with the case itself; it is in bits and pieces.  There was an argument in the court below that one of the separate questions was not determined and that issue was not resolved in the court below, so we still do not know whether the issue of duty has been determined and that raises ‑ ‑ ‑

GUMMOW J:   What was the nature of the process at first instance?  What was Associate Justice Malpass ‑ ‑ ‑

MR MORRIS:   Your Honour, the issues of liability and quantum were separated and separated in a way that allowed for separate questions to be determined.  The separate questions before this Court are reproduced at page 144 of the joint appeal book - the (a), (b) and (c) and there was a dispute as to whether (a) was decided or not decided.  The trial judge determined that because there had been, in his view, no witnessing at the scene of someone being “killed, injured or put in peril” the statute precluded it and, therefore, there was no duty.  In the court below Justice Beazley did not decide the point and Justice McColl said the reasons were inadequate and there would need to be a retrial, were the applicants otherwise entitled.  The question of whether ‑ ‑ ‑

GUMMOW J:   But the fact of the matter is that as it has panned out, Mr Gross’ clients are shut out, are they not?

MR MORRIS:   That is correct, your Honour.  Your Honour, there is no doubt that this has been ‑ ‑ ‑

GUMMOW J:   What would follow if they are let in is another question.

MR MORRIS:   Indeed, your Honour

GUMMOW J:   Maybe.

MR MORRIS:  Yes, your Honour. The other matter I perhaps should direct your Honours’ attention to is the way that duty of care is dealt with because it underlines what the intent of this legislation was. If your Honours go to section 32 your Honours will see that in formulating whether a duty of care exists – and, your Honour, we have alluded to the common law debate about professional rescuers – but your Honour will see in 32(2) of the Civil Liability Act – I am sorry, I should take your Honours to section 32(1) first. There is no duty unless:

the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness –

and then subsection (2) deals with what were the “circumstances of the case”.  The only two ones relevant to this kind of claim are (a) and (b) and (b) is the one litigated below “being “killed, injured or put in peril”, but (a):

whether or not the mental harm was suffered as the result of a sudden shock –

which is a throwback to the analysis of psychiatric injury before Tame and, your Honours, the throwback underlines what is looked for when one looks to the words “being put in peril”.  The perception is critical.  Does a person see someone killed?  That causes shock.  Does a person see someone injured?  That causes shock, potentially.  What else causes shock when someone is not killed and is not injured?  What causes shock when someone is not killed and is not injured is the perception of an immediate risk of harm or, in other words, the near miss and that is what ‑ ‑ ‑

GUMMOW J:   The primary judge thought, in fact, there was some assistance from the second reading speech, did he not, with his reference to “people present at the accident scene”? 

MR MORRIS:   Yes, he considered the reference to the scene ‑ ‑ ‑

GUMMOW J:   This is at paragraph 152 on page 93.  Anyhow, what do you say about that?

MR MORRIS:   Your Honour, the judge at first instance focused on the scene as being the determinant, that is, unless you were actually at the scene of the derailment as it occurred then you could not have the entitlement and he had some support, he felt, for that proposition from the second reading speech.  In our submission all that the second reading speech can assist this Court with is the realisation that what was intended by this legislation was in no means beneficial.  What was intended was to restrict existing entitlements and that intention has been alluded to in cases already in the Court of Appeal in the interpretation of other sections of the Act.  In our respectful submission, it is manifest, for example, by the exclusion of the word “aftermath” from the provision relating to entitlement.

If it had genuinely been intended to cover rescuers, to cover people coming on the scene looking at the consequences, there would have been, as Justice Ipp referred to in the Ipp Report, the express inclusion of that entitlement to deal with consequences, that is by allowing for these perceptions during the aftermath, rather than the event or something

causally connected to the event as making the entitlement.  Your Honour, in our respectful submission the legislative intent is clear and the kind of twisting of the words that the applicant needs to make would discourage your Honours from entertaining this appeal.

GUMMOW J:   Thank you, Mr Morris.  We do not need to call on you, Mr Gross.  There will be a grant of special leave in these matters.  They should be heard together and does one day seem a reasonable estimate?

MR MORRIS:   Yes, your Honour.

GUMMOW J:   Thank you.

AT 11.55 AM THE MATTERS WERE CONCLUDED