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

New South Wales Supreme Court

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)

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

David Colin Wicks (1st Pl) PARTIES : 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. They were a daily reminder of the derailment (particularly the smell of dust). 5 At the time of the derailment Mr Sheehan had been engaged in operational duties. He was at the scene of the derailment between some time after 7.15am and early afternoon. Later he attended a group debriefing. He had no further contact with exhibits after leaving the scene of the derailment 6 Separate proceedings have been brought by the plaintiffs in this Court (in February 2006) in respect of alleged personal injury. Each brings a claim for damages in respect of what was once referred to as nervous shock (it is now largely treated as mental harm). 7 There is no issue between the parties that the Civil Liability Act 2002 (NSW) (the Act) has application to each of the claims and that they relate to pure mental harm within the meaning of the Act. 8 Part 3 of the Act is headed "Mental harm". It comprises sections 27-33 thereof. Section 27 provides definitions. Section 28 deals with the application of the Part (it applies to any claim for damages for mental harm resulting from negligence and provides that s29 thereof applies to a claim for damages in any civil proceedings). Section 29 provides that in any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly, or in part, from mental or nervous shock.