The Courts have experienced a large increase in claims by people who allege to have suffered pure mental harm as the result of witnessing a person being killed, injured or put in peril caused by the negligence of another. The two cases we refer to below show that there are limits both to the duty owed by the alleged wrongdoer and the circumstances which will amount to witnessing someone being killed, injured or put in peril.
A key case discussing duty of care and foreseeability of harm in pure mental harm cases is the Optus case.
This case was factually unique. The claimant, Mr W, suffered chronic severe post-traumatic stress disorder as a result of Mr G attempting to murder him. Both parties were attending a training course on the ground floor of Optus’ premises. Although Optus were the occupiers of the building, they were not the parties’ employer. The parties were not known to each other prior to the training course.
Mr G had made his way to an unauthorised area of the premises on the roof balcony. He was observed to be unresponsive and requesting to see Mr W. Optus employees believed Mr G was a danger only to himself at the time. When Mr W attended the roof balcony, he was encouraged by Mr G to move closer to the railing. It was at this point that Mr G attempted to throw Mr W off the balcony.
The majority of the Court held Optus did not owe Mr W a duty of care, as the conduct of Mr G was not reasonably foreseeable in the circumstances. In this case, the majority ruled the relevant conduct was Mr G’s attempt to kill Mr W (rather than the lower threshold, being that Mr G might assault Mr W).
Case Study: Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
The two claimants in this case were police officers. They were among the first to respond and arrive at the scene of a high-speed train accident. A number of passengers were dead, and many were severely injured. The relevant rail authority admitted to operating the railway, including the subject derailed train, in a negligent way.
Both claimants suffered post traumatic stress syndrome, nervous shock and major depressive disorder as a result of what they witnessed on the day in question.
Did the Claimants Suffer Mental or Nervous Shock?
The High Court held that the sudden and disturbing impressions on the minds/feelings of the claimants continued as each took in more of the scene and set about their tasks. In other words, they suffered a series of shocks as the day progressed. Therefore, that the mental harm the claimants suffered arose wholly or partly from mental or nervous shock held true.
Did the Claimants Witness, at the Scene, Another Person or Other Persons Being Killed, Injured or Put in Peril?
The court stated it was not correct to assume that all cases of death, injury or being put in peril are those that begin and end in an instant (or within minutes). Rather, there are cases where such takes place over an extended period of time.
When considering the facts of the case, it could be readily inferred that some passengers were still sustaining injuries whilst being removed from the train. Similarly, the perils to which living passengers were subjected did not end when the carriages came to a rest. A person is put at peril when they are put at risk – that person remains in peril until they cease to be at risk.
Therefore, the passengers remained in peril until they had been rescued by persons such as the claimants. As such, the court held the claimants witnessed, at the scene, persons being put in peril as a result of the negligence of the relevant authority.