A police officer attended the scene of a single vehicle accident caused by the negligence of the driver of the vehicle. The driver subsequently died at the scene. As a result of witnessing the aftermath of the accident, the officer suffered psychiatric injury. He commenced proceedings against the driver's insurer seeking damages for his psychiatric injury. The primary issue concerning liability was whether the driver owed a duty of care to the officer. After an extensive review of the authorities, Flanagan J concluded that the alleged duty was owed.
30 January 2019
In February 2013 in Hennessey Hill a vehicle collided with a tree. . The collision was caused by the negligence of the driver, who subsequently died at the scene as a result of his injuries ("the deceased"). –, . The plaintiff, who was a Senior Constable with the Queensland Police Service, attended at the scene and witnessed the aftermath of the collision. . As a result of this, he sustained a psychiatric injury, namely Post Traumatic Stress Disorder. . The plaintiff commenced proceedings against the defendant, which was the deceased's insurer, seeking damages for his psychiatric injury. –. It was common ground that the Civil Liability Act 2003 did not apply to the proceeding, so that the common law applied. .
The primary issue concerning liability, which is the subject of this note, was whether the deceased owed a duty of care to the plaintiff. . Flanagan J conducted an extensive review of the relevant authorities and principles. His Honour accepted that whether a duty of care was owed extended beyond a question as to whether or not there was a reasonably foreseeable risk of injury. . His Honour accepted that “something additional [is required] which the law recognises as being relevant to the imposition of a duty and which is not compromised by policy considerations”. . His Honour noted that in terms of the reasoning process by which those principles should be applied to the case at hand, both parties submitted that the Court should be guided by the reasons of Nettle J in King v Philcox (2015) 255 CLR 304, which include the following passage:
"[T]he issue cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant ... [T]he question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of ‘proximity’ ... is no longer considered determinative, it nonetheless ‘gives focus to the inquiry’. It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a ‘judicial evaluation of the factors which tend for or against a conclusion’ that it is reasonable ... for a duty of care to arise." .
As to foreseeability, Flanagan J noted that the relevant inquiry is whether a reasonable person in the deceased's position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from the deceased's negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene. . His Honour asked whether “sights of the kind a police officer might see, sounds of the kind a police officer might hear, tasks of the kind a police officer might have to undertake be, in combination, such as might cause a police officer to develop a recognised psychiatric illness?" . His Honour considered a number of matters – including that the plaintiff sought to maximise the deceased's chances of survival from fatal injuries, that the plaintiff's hands were at one point covered in matter from the deceased's head, that the plaintiff saw the deceased's "very squashed" legs, and that the deceased's parents arrived at the scene – and concluded that reasonable foreseeability was made out. .
His Honour then considered a number of factors upon which the defendant relied, and concluded that none of them dictated against a finding that the alleged duty was owed:
(a)Direct perception: The defendant submitted that it was relevant that the plaintiff witnessed only the aftermath of the accident, and did not directly perceive it as it occurred. . Flanagan J held that it has been settled law in this country for over two decades that any direct perception requirement will be satisfied by a plaintiff who views either the accident as it occurs, or its immediate aftermath. . He held that what the plaintiff saw fell within the ambit of the "aftermath", which is a concept not to be viewed narrowly. , .
(b)Both defendant and sole victim: The defendant submitted that it was relevant that the deceased was both the defendant and the sole victim of the accident. . While accepting that the deceased's status as both defendant and sole victim would have for some years in this country barred the plaintiff's claim, Flanagan J held that a series of recent decisions have removed that bar. –.
(c)Mere bystander: The defendant submitted that it was relevant that the plaintiff was not personally involved in the events leading up to the accident. . Flanagan J held that as a result of a number of decisions the path is not necessarily closed in this country to claims by mere bystanders. . However, his Honour held that the plaintiff could not sensibly be described as a mere bystander to the deceased's death because he took steps to keep him alive, he encouraged him, he sought to comfort his parents, he instructed firefighters, he assisted the deceased's parents in saying farewell, and he observed the deceased pass away. .
(d)Rescuer: The defendant submitted that it was relevant that the plaintiff did not have any pre-existing relationship with the defendant. . Flanagan J held that the plaintiff could be classified as a "rescuer", the fact that the rescue attempt was not successful being irrelevant. –.
(e)Policy: The defendant submitted that the plaintiff’s status as a police officer at the time of the accident informed the plaintiff’s relationship with the deceased and precluded any duty being owed to the plaintiff. . Flanagan J rejected three such submissions. .
In the result, Flanagan J concluded that the deceased owed the alleged duty of care to the plaintiff. . After addressing causation and quantum, his Honour gave judgment in favour of the plaintiff in the amount of $1,092,948. .
M J Hafeez-Baig