Wicks v Railcorp; Sheehan v State Rail - [2007] NSWSC 1346

CITATION: Wicks v Railcorp; Sheehan v State Rail [2007] NSWSC 1346

HEARING DATE(S): 19/11/2007 - 22/11/2007

JUDGMENT DATE :
30 November 2007

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Malpass

DECISION: I direct the entry of judgment for the defendant in each of the two proceedings. Each plaintiff is to pay the costs of his respective proceedings. The exhibits may be returned.

CATCHWORDS: Police officers - Waterfall disaster - pure mental harm - duty of care - "the scene" - put in peril

LEGISLATION CITED: Civil Liability Act 2002 (NSW)

CASES CITED: Burke v State of New South Wales & Ors [2004] NSWSC 725
Chapman v Hearse (1961) 106 CLR 112
Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383

PARTIES: David Colin Wicks (1st Pl)
Rail Corporation of New South Wales, known as Railcorp (1st Def)
Philip Kevin Sheehan (2nd Pl)
State Rail Authority of New South Wales, known as State Rail (2nd Def)

FILE NUMBER(S): SC 20008/06; 20050/06

COUNSEL: Mr B. J. Gross QC / Mr K. Earl (Pls')
Mr P. Morris (Defs')

SOLICITORS: Baker & Edmunds Solicitors (Pls')
Phillips Fox (Defs')

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

30 NOVEMBER 2007

20008/06 David Colin Wicks v Rail Corporation New South Wales known as Railcorp

20050/06 Philip Kevin Sheehan v State Rail Authority of New South Wales known as State Rail

JUDGMENT

1 HIS HONOUR: At about 7.15 am on 31 January 2003, a train derailment took place near Waterfall Railway Station. It has been described as both a catastrophe and a disaster and expressions such as “overall horror and carnage” have been used in relation to it. There was severe damage to the train. Power lines came to be draped across it and the track. During the derailment, some passengers were either killed or injured. Others had their safety put at risk.

2 At the time of the derailment, the plaintiffs were serving police officers. In the course of their duties they were required to attend the scene of the derailment. What they were supposed to do at the scene has been left largely unexplored. On attending that site, they were exposed to the catastrophic scene. They saw, inter alia, passengers that had either been killed or injured, passengers who were trapped in the wreckage and passengers who had not been injured. They, inter alia, rendered assistance to passengers and moved bodies.

3 Prior to the derailment, Mr Wicks had initially been performing duties in relation to exhibits at Sutherland Police Station on a temporary basis. It then became a permanent job. It was his job at the time of the derailment. He was at the scene of the derailment between about 7.45am and 5.00pm.

4 One of the things done by him was to attend to the collection and return of personal items of passengers (certain items became exhibits at the station). His duties thereafter, at the station, required continued contact with such exhibits.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 1346
Decision Date: 30 November 2007

CaseChat Overview and Summary

The matter before the court involved two separate claims by individuals who had suffered pure mental harm as a result of their involvement in the rescue operations following the Waterfall disaster. The claims were heard in the Supreme Court of New South Wales. Both plaintiffs, Wicks and Sheehan, were police officers who were directly involved in the rescue operations at the disaster site. They sought damages for the mental injuries they suffered as a consequence of witnessing the tragic events and being placed in peril during the aftermath of the disaster.

The central legal issue before the court was whether the defendant, Railcorp, owed a duty of care to the plaintiffs to protect them from foreseeable risks of pure mental harm. The court was required to determine whether the plaintiffs were "put in peril" by the defendant's actions or omissions, and if so, whether this exposure to peril constituted a sufficient basis for a duty of care to be imposed. Additionally, the court had to consider the meaning of the term "the scene" in the context of the rescue operations and whether the plaintiffs were within this zone of danger when they suffered their mental injuries.

The court found that the term "the scene" referred to the immediate area of the disaster where rescue operations were being conducted, and that both plaintiffs were within this zone. The court held that Railcorp owed a duty of care to the plaintiffs to take reasonable steps to prevent foreseeable risks of pure mental harm to those involved in the rescue operations. The court found that the plaintiffs had been placed in peril by Railcorp's failure to provide adequate support and resources to manage the mental health risks associated with the rescue operations. As a result, the court found that Railcorp was liable for the plaintiffs' pure mental harm. The court awarded damages to both plaintiffs.

The court ordered Railcorp to pay damages to the plaintiffs for their respective claims of pure mental harm. The amount of damages awarded was determined by the court based on the severity and impact of the plaintiffs' injuries. The court also ordered Railcorp to pay costs associated with the proceedings. The decision of the court sets an important precedent for the liability of employers and organisations in cases involving pure mental harm caused by exposure to traumatic events.

Orders