Supreme Court decision might see a rise in rescuers claiming for pure nervous shock

The recent Supreme Court decision of Caffrey v AAI Limited [2019] QSC 7 may lead to an increase in claims from emergency service personnel who are required, in the course of their duties, to attend the scenes of traumatic motor vehicle accidents. The potential for the compulsory third party (CTP) scheme to be impacted by an increase in claims was ultimately not sufficient for the Court to deny the Plaintiff’s claim. While the Court suggested that public policy considerations would continue to be assessed on a case-by-case basis, the impact of this decision could be significant, noting that the majority of CTP personal injury claims in Queensland are typically resolved before trial. Given the potential scheme impact, an appeal seems likely.   

Background

The Plaintiff, a Senior Constable with the Queensland Police, developed Post Traumatic Stress Disorder after responding to a single vehicle incident. A collision occurred as a result of the negligence of the driver, whose capacity to exercise control of the vehicle was compromised by the use of methamphetamine, amphetamine and marijuana. The Plaintiff sought to keep the driver alive, comforted and encouraged the driver. The driver subsequently died at the scene from his injuries. 

The Plaintiff was put to proof to establish the necessary elements of a pure nervous shock claim, as outlined by the High Court in Tame v New South Wales; Annetts v Australia Stations Pty Ltd [2002] HCA 35. In finding that the Plaintiff satisfied the requisite elements of a nervous shock claim, the Court classified the Plaintiff as a “rescuer”, a class permitted to pursue recovery for pure nervous shock without the need to establish a close relationship with the injured party. However, the main focus of the defence was the Plaintiff’s status as a police officer and the argument that this precluded any duty of care being owed by the driver to the Plaintiff. 

The defence

The defence was comprised of three principal elements:

• a duty of care owed to a police officer would deter members of the public from reporting incidents requiring police attendance, contrary to the public benefit
• a duty owed to police officers would unjustifiably expand liability in respect of psychiatric harm, and
• members of the public are entitled to expect that a police officer responding to a motor vehicle accident will be equipped with sufficient training and experience to avoid pure psychiatric harm, such that a psychiatric injury was not reasonably foreseeable.

Outcome of the decision

Each of these submissions was rejected by the Court. The Court considered that from a practical perspective, it was unlikely that accidents would go unreported and to suggest that negligent parties may seek to conceal an accident was out of step with community expectations and potential criminal consequences facing drivers who fail to report an accident. As to the Defendant’s floodgates argument, the Court noted that cases would be limited by the threshold requirement that a Plaintiff must be suffering a psychiatric illness and the Court would continue to assess such cases by considering “matters of policy and degree”. 

The scope of the decision would appear to extend beyond members of the Queensland Police Service. The Court commented that any relevant policy considerations for specific sub-sets of rescuers (ambulance officers, fire or other emergency service workers) should be assessed separately. However, the Court’s rejection of the public policy arguments raised suggests it will be difficult to defend a claim by an emergency service responder by reference to public interest considerations.