Wicks v State Rail Authority of New South Wales

The Waterfall Rail Disaster

On 31 January 2003, Herman Zeides woke up just before 1am and headed to work. Mr Zeides was a train driver with more than 30 years’ experience driving trains.¹ On this particular Friday morning, he was scheduled to drive a train from Sydney’s Central Railway Station to the coastal city of Wollongong. This would take Mr Zeides and his passengers along the South Coast Railway line (or Illawarra Railway), which opened in segments between 1884–1893.²

When Mr Zeides arrived at Sydney’s Central Railway Station in the early morning, he chatted happily with his colleagues before taking his place in the driver’s compartment of the train. As Mr Zeides took the train’s controls, only about 10% of the normal supply of blood was reaching his heart.³

On board the train were Christiana Gruenbaum and her husband James Ritchie who were travelling to Wollongong for their four-year-old granddaughter’s first day of kindergarten. They were seated in the upper section of the first carriage. In the train’s back carriage was ABC journalist Nonee Walsh who sometimes commuted between the New South Wales (NSW) South Coast and Sydney for work.⁴ Also on board was Yi Zhang who was travelling to work at the Wollongong Hospital where she was a pathology technician. Mrs Zhang had moved to Australia from China in the aftermath of the Tiananmen Square massacre.⁵

Shortly after pulling out of Waterfall station, Mr Zeides suffered a major heart attack. The weight of his legs prevented the train’s emergency ‘deadman’s brake’ from operating.⁶ With Mr Zeides incapacitated behind the controls, the train failed to slow down as it approached a curve in the tracks. An ill-timed 30-second microsleep allegedly prevented the train guard, Bill Van Kessel, from pulling the emergency brake and slowing the train.⁷ Travelling at 117 km/h through a section of track where the speed limit was only 60 km/h, the train derailed and crashed into the rocky walls of a gorge (‘the Waterfall rail disaster’).⁸

Seven people were killed in the derailment, including Mr Ritchie who was travelling to his granddaughter’s kindergarten, and Mrs Zhang who was travelling to work at the hospital. Nineteen others were seriously injured in the crash, including Ms Gruenbaum. She sustained serious head injuries, including bleeding on the brain, and was in a coma for several days following the derailment.⁹ Nonee Walsh was napping in her carriage right before she realised that something was seriously wrong. She woke to find the train travelling much too fast as it approached the bend. Her carriage overturned in the crash and she suffered a spinal injury and was knocked unconscious. She was initially trapped in the overturned carriage but was eventually able to climb out a smashed window with the assistance of rescuers. She was later awarded a prestigious journalism award for her reports from the scene of the derailment in the aftermath of her rescue.¹⁰

Nineteen-year-old Gareth Redshaw was also a passenger on the train. He managed to kick a hole in the door of his overturned carriage before calling emergency services from his mobile phone. However, the emergency operators who took his call labelled him a ‘blatant hoaxer’ and refused to believe his ‘incredible’ story about the derailed train, particularly because Gareth was unable to provide an exact location of the derailment which occurred somewhere in the thick bushland between two stations. Apparently, the operators’ scepticism was heightened due to a spate of similar prank calls in the days prior to the accident.¹¹

The Rescue Operation

David Wicks and Philip Sheehan were members of the NSW Police Force and were among the first to arrive at the scene of the train derailment. Both men spent many hours pulling survivors from the wreckage, administering first aid, and extricating dead bodies from the overturned carriages. Both men subsequently developed psychological conditions following the traumatic rescue operation.

They sued the State Rail Authority of NSW—which operated and maintained the railway—alleging that the State Rail Authority’s negligence had caused them to suffer pure mental harm (i.e. mental harm unaccompanied by physical injury).

The Legal Issue

In our previous post on liability for pure mental harm occasioned to rescuers, consideration was given to the 1967 case of Chadwick v British Railways Board,¹² where the English High Court decided that rescuers could recover damages for pure mental harm occasioned by their rescue attempt. In subsequent years, however, the courts began adopting an increasingly restrictive approach, with the House of Lords in White v Chief Constable of South Yorkshire Police holding that police officers involved in a rescue attempt could not recover for pure mental harm where the accident had already taken place and, as such, the rescuers could not be considered ‘primary victims’.¹³ In Australia, the courts have rejected this distinction between ‘primary’ and ‘secondary’ victims.¹⁴ While the common law therefore remains more favourable to Australian rescuers than those in England, legislative intervention in this area has nevertheless limited the circumstances in which rescuers will be able to recover for pure mental harm under Australian law.

The key legal issue in Wicks was whether a certain section of the applicable legislation–s 30 of the Civil Liability Act 2002 (NSW)—precluded officers Wicks and Sheehan from recovering damages for their pure mental harm. The State Rail Authority admitted that it was negligent in its operation of the railway and the particular train that derailed, but denied that it was liable to officers Wicks and Sheehan, primarily because of the operation of s 30(2) which restricts liability to situations where the plaintiff either:

(a) ‘witnessed, at the scene, the victim being killed, injured or put in peril’;¹⁵ or
(b) ‘is a close member of the family of the victim’.¹⁶

Given that officers Wicks and Sheehan were not close family members of any of the victims of the Waterfall rail disaster, liability therefore turned on whether or not they could establish that they had ‘witnessed, at the scene’ any victims ‘being killed, injured or put in peril’.¹⁷

The Court of Appeal Restricts Recovery for Pure Mental Harm

In the NSW Court of Appeal, it was held that neither Wicks nor Sheehan ‘witnessed, at the scene’ any victims ‘being killed, injured or put in peril’ as required by s 30(2)(a) of the Civil Liability Act 2002 (NSW). According to Beazley JA, Wicks and Sheehan arrived at the scene after the derailment, once the process of victims being put in peril had already ended.¹⁸

In reaching this conclusion, her Honour had regard to the history and background of the legislative scheme. In particular, she noted that the provisions governing the recovery of damages for negligently inflicted mental harm under the Civil Liability Act 2002 (NSW) were enacted as part of a legislative process of reforming the law of negligence. This legislative reform followed a review into the law—the ‘Ipp Review’—which was commissioned by Commonwealth, State and Territory governments following concerns that awards of damages for personal injury had become unaffordable and unsustainable.¹⁹ Significantly, the Ipp Review had recommended limiting recovery for pure mental harm to cases where the plaintiff ‘was at the scene of shocking events, or witnessed them or their aftermath’.²⁰ When enacting s 30(2)(a) of the Civil Liability Act 2002 (NSW), however, the NSW Parliament chose not to enact the ‘aftermath’ component of the Ipp Review’s recommendation, instead deciding to further confine the circumstances in which rescuers can recover damages for pure mental harm. Beazley JA also compared s 30(2)(a) of the Civil Liability Act 2002 (NSW) to the equivalent legislative provision in Tasmania which captures plaintiffs who witnessed ‘the immediate aftermath of the victim being killed or injured’.²¹ Beazley JA concluded that it was ‘significant’ that the NSW legislation, when compared to the Tasmanian legislation, and the recommendation of the Ipp Review, did not adopt the language of ‘aftermath’ in s 30(2)(a).²²

McColl JA agreed that s 30(2)(a) did not capture officers Wicks and Sheehan. According to McColl JA, it is possible for plaintiffs to come onto the scene of an accident after the ‘principal causal event’—here, the train derailment—and still witness others ‘being killed, injured, or put in peril’ if, for instance, following the derailment ‘one of the carriages containing passengers had been left teetering on the edge of a cliff’.²³ On the facts of the case, however, McColl JA found that any peril occasioned by the train derailment had already played out. The mere possibility that victims’ conditions may deteriorate during the rescue operation did not constitute witnessing a victim ‘being … put in peril’.²⁴

The High Court’s Beneficent Interpretation

Mr Wicks and Mr Sheehan appealed to the High Court of Australia. In a unanimous decision,²⁵ the High Court reversed the decision of the Court of Appeal, providing a more generous interpretation of s 30(2)(a) of the Civil Liability Act 2002 (NSW) than was likely intended by the legislature. The High Court held that it was wrong to assume that incidents such as railway disasters ‘begin and end in an instant’.²⁶ Rather, the consequences of the derailment ‘took time to play out’.²⁷ Not all of the victims’ injuries were sustained during the process of derailment. Instead, it could be inferred that some victims suffered further physical and/or psychiatric injuries during the process of being rescued.²⁸ In any event, even if the victims did not suffer further injuries, they still remained in peril during the rescue process. Here, the High Court referred specifically to the peril presented by fallen electrical cables that were draped over the carriages and lying across the wreckage in the aftermath of the derailment.²⁹ Section 30(2)(a) was therefore satisfied as both officers had ‘witnessed, at the scene’ victims ‘being killed, injured or put in peril’.

Having established that the officers therefore fell within the class of persons who could recover damages for pure mental harm, the High Court then remitted the questions of whether the officers actually suffered ‘a recognised psychiatric illness’,³⁰ and whether the State Rail Authority actually owed the officers a duty of care (which requires consideration of whether the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness³¹), back to the NSW Court of Appeal for determination.

By interpreting the Civil Liability Act 2002 (NSW) in an expansive manner, so as to undermine the legislative intent of confining the circumstances in which damages for pure mental harm will be available,³² the High Court ensured that s 30(2)(a) can capture rescuers who arrive on the scene after an accident has already taken place. In other Australian jurisdictions, whether a similarly generous construction of the applicable civil liability legislation is possible will ultimately turn on the wording of each individual statute. For instance, in South Australia, damages will not be awarded unless the rescuer was themselves physically injured in the accident, or was present at the scene ‘when the accident occurred’.³³ If the Waterfall rail disaster had occurred in South Australia, it is therefore very unlikely the officers would have been captured by the legislation, given this more restrictive wording.³⁴ This inconsistency has been rightly criticised in the academic literature. Handford, for instance, asks why, as a matter of logic or policy, rescuers in South Australia should be worse off than those in other jurisdictions?³⁵

In NSW, the broadening of the circumstances in which damages can be awarded for pure mental harm is not without its problems. In particular, the High Court’s decision in Wicks has been criticised on the basis it may not be economically sustainable. According to Mendelson, Torre and D’Rosario, the High Court has left liability for pure mental harm ‘virtually indeterminate’ in relation to the category of rescuers.³⁶ The authors also note that it is not the role of the courts to ‘actively re-writ[e] validly enacted legislation, the stated purpose of which is to limit liability of defendants for negligently occasioned personal injury’.³⁷

The Aftermath

In the aftermath of the Waterfall rail disaster, various systematic safety problems were identified with the State Rail Authority’s operation of the railway. A Special Commission of Inquiry into the disaster reported that the culture of the State Rail Authority was ‘focussed on on-time running [of trains], without adequate and proper consideration being given to safety matters’.³⁸ The President of the NSW branch of the Australian Rail, Tram and Bus Union provided evidence of train drivers being abused for refusing to drive defective trains.³⁹ The Special Commission of Inquiry also reported that a number of senior managers of the State Rail Authority were aware of the deficiency in the ‘deadman foot pedal’ on this class of train, but took no steps to adequately test the device.⁴⁰ It also found that if periodic medical examinations had been conducted on train drivers prior to the disaster, Mr Zeides’ heart attack could have been predicted.⁴¹ In relation to the train guard, Mr Van Kessel, who failed to apply the train’s emergency brake, Van Kessel’s barrister submitted that he was operating in a culture in which drivers were thought to be in charge of the train and it was unusual for a train guard to apply the emergency brake simply because a train was exceeding the speed limit.⁴²

In response to the Waterfall rail disaster and recommendations made by the Special Commission of Inquiry, periodical medical examinations of rail workers, including the use of cardiac risk factor predictions, were implemented in New South Wales. All passenger trains were also fitted with a minimum of two independent engineering defences to minimise the risk of derailment in the event of train driver incapacitation,⁴³ in direct response to the Special Commission of Inquiry’s finding that the Waterfall rail disaster could have been prevented had a vigilance device been fitted which could have activated the train’s emergency brake.⁴⁴

Conclusion

In 1921, Cardozo J famously declared in the Court of Appeals of New York that ‘danger invites rescue’, and a wrong that imperils life is not only a wrong to the imperilled victim, but also a wrong to his or her rescuer.⁴⁵ Nearly 90-years later, the High Court of Australia’s decision in Wicks similarly recognised that rescue is conduct worthy of legal protection.