In 2003, emergency responders attended a major rail incident at Waterfall in New South Wales, in which multiple passengers were injured and seven died. According to a 14 April 2010 article in The Australian (page 7, not yet(?) available online):
“The officers [David Wicks and Philip Sheehan] were among the first at the scene of the crash that killed seven people, including the driver, who lost control of the train after he had a heart attack”.
Those officers have been denied compensation under the NSW Civil Liability Act because
“they did not witness the crash, only its aftermath.”
Both police officers had been diagnosed with post-traumatic stress disorder (PTSD) and been medically discharged.
Their claim for compensation has now reached the High Court of Australia (WICKS v STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL and SHEEHAN v STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL). The short particulars of the case being put to the High Court include the following grounds:
“The Court of Appeal erred in law in holding that the requirements of s 30(2)(a) of the Liability Act, under which the appellant was not entitled to recover damages for pure mental harm unless he witnessed, at the scene, the victim being killed, injured or put in peril, were not satisfied by the appellant, a police officer, who suffered psychological injury as a result of rescue work at the site of the Waterfall rail disaster, because although the injured, trapped or escaping passengers were at risk of physical injury and mental harm during the appellant’s rescue work, the appellant was not present at the scene when the train derailed and crashed.”
The implications of the High Court of Australia decision will have significant impacts for emergency workers but the case also indicates the confusions that could arise in OHS law over the issue of psychosocial hazards and injuries, such as trauma and PTSD.
The liability legislation seems to conflict with the ever-broadening coverage and application of OHS law and the related workers’ compensation legislation. Did Australia look at liability law in its OHS law harmonisation process? It is one thing to harmonise general OHS duties across different jurisdictions and industry sectors but was the harmonisation extended across different legal types?
In safety management terms, the worker’s mental health is a principal consideration and various support services should be offered to workers who have been exposed to traumatic situations, be they deaths, bank robberies or some other incident.
What must be kept in mind when reading about the High Court appeal by Wicks and Sheehan is the original legal action they took that has gone through various court and appeal processes. Again the High Court particulars say:
“The appellants each brought a claim for damages against the State Rail Authority of NSW (“State Rail”), alleging he had suffered a psychiatric injury due to its negligence. That negligence was said to be State Rail’s failure to ensure that the train’s “deadman’s” safety device was operating, or was designed to operate, in the event of a driver’s incapacitation.”
So the links in the initial incident go something like
- State Rail Authority was responsible for a safety device that should have operated when a train driver was incapacitated.
- The driver of a train suffered a heart attack and collapsed but the safety device failed to engage.
- The train crashed near Waterfall, killing seven passengers and injuring many other.
- Two police officers responded to the emergency scene and have suffered psychological harm from doing their duty.
It seems to be a long bow to draw from injured and dead passengers to the State Rail Authority negligence but, as far as can be determined, the High Court is not deciding on the validity of the claim but only of the validity of the 31 August 2009 decision of the NSW Court of Appeal. This former police officers’ claims have a long way to go still but just as the impacts of the High Court decision on Kirk v Industrial Relations Commission and Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales are still being felt, the ramifications of this case could be widespread.
Whether the police officers have received workers’ compensation over their work-related PTSD is unclear.