Compensation denied because police officers only saw the aftermath of fatal incident

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.

Kevin Jones

Categories disaster, government, law, OHS, psychiatric, railway, risk, safety, stress, transport, Uncategorized, wellnessTags , ,

6 thoughts on “Compensation denied because police officers only saw the aftermath of fatal incident”

  1. Tim Hackett CPMSIA if you had attended the WIRC Forum on the 4th March you would have heard robert Brokenshire MLC say that it may be time to scrap the entire WorkCover system and start again as the current system is so out of touch and so broken that it may be toally impossible to gain any social justice for South Australian injured workers or employers under it.

    If you go to You Tube and enter WIRC Forum you should be able to see the main speakers from the Forum.

  2. http://www.workerscompinsider.com/2010/03/pilot-with-a-de.html

    March 26, 2010
    Pilot with a Death Wish

    Bryan Griffin was a pilot for Australia\’s Qantas Air from 1966 to 1982. In 1979 he began to have \”uncontrollable urges\” to switch off the engines in mid-flight in order to bring down the airplane. He would leave the flight deck and smoke a few cigarettes until he calmed down. He made no attempt to hide his problem – he talked to his colleagues about it. Qantas had him examined and treated by several doctors, but the problems continued, including the urge to \”scream and cry.\” He routinely ignored instructions and repeatedly missed radio and altitude calls. On a flight from Singapore to Sydney, he felt his hand \”being abused by the uncontrollable pull of the start levers\” – which, if pulled, would kill the engines.

    OK. Not exactly \”pilot of the month\” stuff. There are a couple of intriguing aspects to this tale.

    First, Qantas made the management decision to keep Griffin on the job. While the Insider normally recommends following a \”return to work/stay at work\” protocol, in this case, \”staying at work\” for three years with severe mental illness clearly put far too many people at risk. Griffin was incapable of performing his job safely; he should have been put on indefinite leave until his mental state stabilized beyond any reasonable doubt.

    Griffin continued to fly until he retired in 1982 with a diagnosis of anxiety, depression and obsessive compulsive disorder.

    Indemnity for Working?
    Here is the second unusual aspect to this case: Nearly 30 years after his retirement, Griffin has been awarded $208,000 by an industrial compensation commission, which ruled that his mental problems were exacerbated by his continuing to work. The Workers Compensation Commission found that the pilot\’s condition had been worsened by continuing to fly for Qantas until his 1982 retirement. The financial award covers \”loss of earnings, medical expenses and legal costs.\”

    While I am no expert in the intricacies of comp as it operates down under, I am confused by this award. How can you suffer a \”loss of earnings\” when you continue to work? How does workers comp indemnity come to play in a situation where there was no lost time? Perhaps the commission assumes that if Griffin had been grounded during his prolonged period of mental disability, he eventually would have been cured and then would have been to continue his career with Qantas beyond 1982. In other words, Griffin\’s premature retirement was caused by making him work while he was suicidal. If that is the reasoning, it\’s a bit of a stretch.

    I have one additional question for the commission: why did it take nearly 30 years to reach this conclusion?

    Qantas is considering an appeal on this ruling. I think they should shut up and cut the check. Any additional proceedings might further expose their amazingly reckless decision to keep Griffin in the cockpit. That is negligent entrustment at its very worst. Ironically, had Griffin succumbed to his demons and crashed the plane, we might never have known the real cause of the accident. As it is, Qantas is lucky that both Griffin and his hundreds of passengers survived. Air travel is stressful enough without having to worry about a pilot with a barely controllable urge to crash the plane.

  3. In South Australia the WorkCover compensation for disability is the only option injuries workers have unless someone is considered vicariously liable given you can not sue your employer in SA for compensation due to an injury even though the compensation offered is negligable and doesn\’t even come close to what a compensation claim might gain if they could sue.

    I am not necessarily advocating the ability to sue employers just a little equity across Australia for workers injured at work.

  4. Stress and psychological disorders are in many cases, more debilitating than physical injury and they should be compensated in the same way as physical injury.

    The determination of claims would go through the same process and given the claims management as it operates in South Australia, I am sure the IME\’s will be utilised with gusto and an outcome would eventually be arrived at. The sticking point will be to determine s43 entitlements as part of a whole of body determination – An entirely new compensation table would need to be developed to take into account the level of permanent disability and determination may require a little more time than that required for physical injuries, maybe requiring a panel of entirely independent experts such as Medical Panels SA who owe no allegiance other than to a well considered opinion, with the power to demand as much information as they feel is necessary to achieve an equitable outcome.

  5. I am not a legal person by any stretch of the imagination, however I would have thought that Officers Wicks and Sheean would have been covered under vicarious stress due to the nature of the incident that they attended.

    Here in South Australia police, medical and legal people who have been involved in the Muligan Investigation into child abuse of State wards, did not actually see first hand the abuse, but heard the abuse many years post abuse.
    They have had claims of stress accepted under vicarious stress. However to the best of my knowledge none of them have been compensated as stress or psychological disorder is not covered under the legislation.

    It is past time that stress and psychological disorder was included into the compensible payments due to all injured workers.

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