Court of appeal upholds duty of care owed to police officer as a first responder to accident
On 17 February 2013 Mr Williams was killed in a single vehicle accident in Queensland when he collided with a tree (the accident). Mr Caffrey (the plaintiff), a senior constable with the Queensland Police Service, was on duty and attended the scene prior to the arrival of the ambulance or fire services. Mr Williams suffered serious and ultimately fatal injuries in the accident. He was however still alive when the plaintiff attended the scene. The plaintiff rendered first aid and attempted to keep Mr Williams alive. Mr Williams’ parents also attended the scene of the accident. The plaintiff reassured them that Mr Williams would survive. He also told Mr Williams that his parents were there and he should not give up. After the paramedics arrived they told the plaintiff that Mr Williams was going to die. The plaintiff broke the new to Mr Williams’ parents and accompanied his mother to where her son lay to say goodbye.
The circumstances of the accident had a profound effect upon the plaintiff. He began to drink heavily and contemplated suicide. He was subsequently diagnosed with post traumatic stress disorder. The plaintiff was dismissed from his employment as a police officer on medical grounds about 18 months after the accident.
The plaintiff made a successful application for workers’ compensation under the relevant legislation in Queensland. He also sued the CTP insurer of Mr Williams’ vehicle for damages. As the plaintiff was entitled to workers’ compensation, the Civil Liability Act 2003 (CLA) did not apply to the circumstances of the claim.
In any event, the principles in Queensland surrounding a person’s liability for another person suffering psychiatric harm is governed purely by the common law and not by legislation. The CLA does not contain any limitation on recovery for pure psychiatric or mental harm (such as those found in sections 30, 32 and 33 of the Civil Liability Act 2002 in New South Wales).
The principles that apply in Queensland therefore include:
- Damages are recoverable only for injury constituted by a recognised psychiatric condition;
- It is not necessary to prove that the plaintiff was of ‘normal fortitude’;
- It is not necessary to prove that the injury was the result of ‘sudden shock’; and
- The ordinary principles of negligence apply to cases of pure psychiatric injury (these principles take into account issues about ‘normal fortitude’ and ‘sudden shock’).
It was not in dispute that the accident was caused by Mr Williams’ own negligence. The substantial issue at the trial was whether Mr Williams owed the plaintiff a duty of care to avoid causing him the harm that he had suffered by reason of his attendance in the course of his duties as a police officer at the scene of the accident.
The CTP insurer denied that any duty was owed to the plaintiff due to his status as a police officer because, if a duty was owed, it would discourage the public from reporting accidents, it would expose defendants to unjustifiable expanded liability in respect of psychiatric harm and members of the public are entitled to expect that a police officer has been appropriately trained to avoid psychiatric harm in attending the scene of an accident.
The trial judge dismissed the CTP insurer’s arguments and held that such a duty was owed. The trial judge further found that Mr Williams’ breach of that duty had caused the plaintiff’s psychiatric injuries and awarded him damages in excess of $1M.
The CTP insurer appealed to the Court of Appeal. The CTP insurer did not dispute any of the established principles in relation to liability for causing psychiatric harm to rescuers. It was accepted that the plaintiff had proved every one of the common law requirements that would render the CTP insurer liable for the injuries suffered in the accident.
The principal ground of appeal was that the trial judge erred in holding that a duty of care could be owed by a person who causes horrific and distressing injuries to himself (or someone else), not to cause pure psychiatric harm to a person who, in the course of their occupation, is required to attend events where such injuries will be present. The CTP insurer argued that the plaintiff’s status as a police officer denied him a right to recover because of 3 policy considerations which render the foreseeability of injury ‘unreasonable’. Firstly, it was submitted that if a police officer could recover, then it would create an intermediate class of prospective plaintiffs (which would include police officers, fire fighters, paramedics, doctors and nurses, as well as some non-medical staff at a hospital). Secondly, it was argued that an extension of the duty of care would constitute an inapt tool as a means of responding to loss constituted by psychiatric harm. It was submitted that the obvious tool to deal with the prospect of such harm is by recourse of the liability of the employer of those prospective plaintiffs. Finally, it was submitted that if a duty of care was owed to police officers, and others whose job it was to save people from injuries, then it would lead to capricious outcomes.
In the unanimous decision of AAI Limited v Caffrey  QCA 293, the Court of Appeal upheld the trial judge’s decision that, in accordance with the principles established by relevant case law, Mr Williams owed a duty of care to the plaintiff. In dismissing the appeal, the Court of Appeal doubted whether it was the proper function of an intermediate appellate court, when deciding a question of law, to undertake a policy analysis of the common law tort of liability and to allow policy to determine the outcome rather than to apply the principles that have been established in relevant case law.
The CTP insurer did not appeal the Court of Appeal’s decision to the High Court. Following the Court of Appeal’s decision, it remains to be seen whether there will be any legislative response such as amendments to the applicable civil liability legislation in Queensland to limit recovery for pure psychiatric injuries to bring it into line with other Australian jurisdictions.
In the absence of any legislative changes, it is possible that the decision in Caffrey may lead to either increased direct CTP claims by first responders at the scene of an accident who suffer a psychiatric injury or subrogated recovery actions by the workers’ compensation insurer who have indemnified the first responder’s employer for a claim arising out of the same accident.