KIM ARLINGTON
September 6, 2009 .
IN THE 6½ years since the Waterfall train disaster, David Wicks has had
recurring nightmares about arriving at the scene too late to help the victims.
The former police officer arrived in time to rescue and comfort those injured
in the January 2003 derailment. But as a NSW Court of Appeal judgment
confirmed last week, he arrived too late to be compensated for the mental
harm he suffered afterwards.
Under the Civil Liability Act, only those who witness someone being killed,
injured or put in danger qualify for damages for psychiatric injuries. Being
exposed to horrific scenes in the aftermath of an incident is not enough; they
have to see the incident.
Mr Wicks, 46, and another former police officer involved in the rescue,
Phil Sheehan, 40, sued the State Rail Authority over the accident that killed
seven, claiming they suffered psychiatric injuries due to its negligence.
Then senior constables, they were among the first to reach the scene and l
ater received the Commissioner of Police's commendation for courage.
But they developed post-traumatic stress and are still haunted by "horrific"
images of the six dead passengers and the driver. Both were medically
discharged from the police service in 2004.
State Rail admitted breaching its duty of care to the train passengers but
successfully fought the former officers' claim.
Last week the Court of Appeal upheld an earlier Supreme Court decision
that the men were ineligible for compensation.
Since changes to the Civil Liability Act in 2002, awards of damages for mental
harm have been restricted to close relatives of the victim or those who saw
someone "being killed, injured or put in peril".
"The omission to include persons who come to the aid of persons after an
accident might be unfortunate," one of the appeal judges, Margaret Beazley,
said.
"There are undoubtedly other classes of persons, in addition to rescuers, who
might be thought to be deserving but fall outside the provision. However,
that is a matter for the legislature."
Changes to the act aimed to cut insurance premiums and restore the notion
of personal responsibility. But the president of the NSW Bar Association, Anna
Katzmann, said the Government's tort law reforms "deprived many deserving
people of compensation".
The NSW president of the Australian Lawyers Alliance, Jnana Gumbert, said
the State Government ''wants us to believe that this provision will prevent
frivolous claims".
"If the rescuer is psychologically scarred by what they see, then why shouldn't
the insurance system cover the damages?" she said.
NSW Police Association secretary Peter Remfrey said the law excluded others
in the emergency services from pursuing civil action for mental harm.
''They get the call and go there straight away, after the incident, so it effectively
excludes anyone in those roles from being compensated.''
A spokesman for Attorney-General John Hatzistergos said police and emergency
services personnel had other avenues for compensation available, including
workers' compensation and disability compensation schemes.
Source: The Sydney Morning Herald
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