Lawyers ponder boundaries for psychiatric injury claims
by Resolve editor Kate Tilley
Where do you draw the line on when damages are recoverable for pure psychiatric injury?
That was the question barristers Richard Douglas QC and Jo Sorbello considered in an AILA Qld presentation moderated by barrister Kevin Holyoak.
They considered Justice Peter Flanagan’s 30 January 2019 decision in Caffrey v AAI Ltd  QSC 7 and discussed a range of hypothetical scenarios.
Police senior constable David Paul Caffrey was awarded $1,092,948. An appeal will be heard in August.
On 17 February 2013, Mr Caffrey was a first responder at a single-vehicle crash. The driver, Byron Neil Williams, died at the scene. AAI was the vehicle’s CTP insurer.
Mr Caffrey subsequently sustained a psychiatric injury, post traumatic stress disorder (PTSD), through witnessing the crash and its aftermath.
Justice Flanagan said Mr Williams’s negligence caused the crash because he failed to drive at an appropriate speed and maintain proper control of the vehicle, due to self-intoxication and use of methamphetamines, amphetamines and marijuana.
The primary issue was whether, as a matter of law, Mr Williams owed a duty of care to Mr Caffrey.
A second issue was whether Mr Caffrey’s damages should be discounted because of subsequent events on 22 August 2014 and the prospect of him developing a psychiatric injury irrespective of the events of 17 February 2013.
On 22 August 2014, Mr Caffrey was off duty, driving home with his daughter, having visited his wife in hospital. He saw a car parked on the side of the road and a man waved him down. The man said he’d found a child, about 10, walking up the road who said his mother had crashed the car. The man had called 000.
Mr Caffrey was told the child’s siblings were in the car. He went to the scene and found two dead children and another seriously injured, whom he tried to assist. He returned home after on-duty police and emergency personnel arrived. He was unable to sleep for four days.
Justice Flanagan said Mr Caffrey was “an honest and credible witness”. He trained as a police officer in the UK before emigrating to Australia in 2005, where he joined the Qld Police Service (QPS).
He had returned to full-time police work in late 2012 after working part-time for several years because his wife had been injured in a vehicle accident and they had young children.
On 17 January 2013, when he attended the single vehicle crash, Mr Williams’s car was around a tree and he was seriously injured inside the vehicle. Mr Caffrey tried to clear his airway and support his head and encouraged him, saying: “Come on, mate, don’t give up.”
Mr Williams’s parents arrived, as they had been looking for him. When it became obvious Mr Williams was dying, Mr Caffrey took his parents over to say goodbye. In evidence later, when asked why the incident had been so traumatic, he said: “I’d never seen anybody die before me eyes. Fifty years old, two decades in the job, and I’ve never seen that before. Because we clean up. They’re either dead or they’re dying and there’s people taking care of that; we just clean up, and we investigate. That’s what coppers do.”
After the incident, Mr Caffrey began to drink a lot, became sad and angry, and contemplated suicide. A psychiatrist diagnosed PTSD and told QPS he was incapable of performing duties as a frontline police officer.
Caffey was asked to retire, which he did not, and was dismissed from 19 September 2014.
Justice Flanagan, in considering whether Mr Williams owed a duty of care to Mr Caffrey, said: “The courts of this country have progressed, by incremental development, well beyond the once strict rule that psychiatric harm is actionable only when suffered in combination with physical injury to the plaintiff, or the plaintiff being placed in reasonable fear of physical injury.
“Today, the satisfaction of multiple control mechanisms limiting liability for the infliction of pure psychiatric harm – among them requirements that a close relationship exist between the plaintiff and the victim ..., that the trigger for the plaintiff’s psychiatric condition be a ‘sudden shock’, that the plaintiff has directly witnessed the accident, and that the plaintiff be a person of ‘normal fortitude’ – is no longer requisite to the existence of a duty of care. These requirements have been reduced in status; they are simply factors relevant to the primary question of reasonable foreseeability of psychiatric injury.”
Justice Flanagan found it was foreseeable Mr Caffrey could suffer recognisable psychiatric injury because of his experiences at the scene. Mr Caffrey was not just “a mere bystander” but fell within the well-established “rescuer” category of claimant.
He rejected AII’s argument Mr Caffrey’s role as a police officer precluded any duty being owned. AII argued:
• a duty’s existence would discourage the public from reporting incidents requiring police attendance and was therefore inconsistent with QPS’s public benefit aims
• a duty would expose defendants to unjustifiably expanded liability for psychiatric harm
• the public was entitled to expect police officers deployed to accident scenes would have sufficient training and experience to avoid pure psychiatric harm.
Justice Ferguson said Mr Caffrey had a pre-existing vulnerability to suffering PTSD. The first accident caused him to suffer chronic PTSD of such severity to render him permanently unsuitable for employment as a police officer. Mr Caffrey’s prognosis after the first accident was poor; the second aggravated his condition.
He discounted the award by 30% because of the pre-existing vulnerability.
Mr Holyoak cited the 1932 Lord Atkin judgement in Donoghue v Stevenson, which established the neighbour principle – “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour.”
Mr Holyoak said: “Losses in tort have to have limits. When does it end? We need a public policy limitation. Who in law is your neighbour?”
He said the mosque shootings in Christchurch, New Zealand, that were live streamed on the internet created an obvious issue as people had the ability to observe things as they happened. “How far is your neighbourhood now? Is there a virtual neighbourhood?”
In discussing the hypothetical scenarios, Ms Sorbello said a balance was required and proximity was relevant. Mr Douglas agreed, referring to Justice Ferguson’s requirement of a close degree of “temporal proximity as between accident and mental harm”.
Ms Sorbello distinguished a paramedic, whose role was to care for injured people, with Mr Caffrey’s circumstances. It was the first time in 50 years he had seen someone die. There were subjective and objective tests.
Mr Douglas agreed. “Most police officers would never confront the circumstances Mr Caffrey did. Mr Caffrey was not trained to do what he had to do on the day. People die in ambulances all the time.”
Mr Holyoak said: “With so many subjective elements, how can a defendant forsee that?”
Mr Douglas asked whether an ambulance officer could sue a granny who suffered serious injuries because she failed to put a non-slip mat in the bath.
Ms Sorbello said: “We all confront things that are less than ideal in life. But [are they] reasonably foreseeable?”
Commenting on a hypothetical of a police officer attending a “gruesome murder suicide”, Ms Sorbello believed they would have a cause of action against the perpetrator. “That’s outside the bounds of normality. You can train for normal, but that’s beyond normal.”
Mr Douglas said a clear line of principle was needed to determine when one case succeeded and another did not. “I expect the Court of Appeal, win or lose, will expound on the boundaries,” he said.