A Queensland police officer who attended the scene of a fatal car accident in 2013 has been awarded in excess of $1 million in damages by the Supreme Court of Queensland.
The accident involved a single vehicle only. The driver, affected by drugs and alcohol, lost control of the vehicle, causing it to leave the roadway and collide with a tree. The then senior constable brought a claim for damages for the psychiatric injuries he suffered as a consequence of attending the scene, administering first aid to the injured driver and shortly afterwards, witnessing the driver die. The claim was brought by the police officer against the CTP insurer of the vehicle.
Arguments at the trial
It was not disputed that the accident occurred due to the negligence of the driver. The primary issue in dispute was whether the driver of the vehicle owed a duty of care to the plaintiff.
The plaintiff’s case
The plaintiff’s case was that the driver of the vehicle owed a duty of care to not cause psychiatric injury to any persons who, acting in the course of their employment as a police officer may be required to respond to and attend the scene of an accident caused by his driving (and see, hear or be required to undertake tasks causing them to witness death and/or suffering of persons at the scene).
The police officer further alleged that it was reasonably foreseeable that any person acting in their role as a police officer required to attend the scene, would suffered a psychiatric injury.
The insurer’s case
The insurer denied that the deceased (it’s insured) owed any duty as alleged by the plaintiff. It advanced several bases for adopting that position including:
- the risk of the officer suffering a psychiatric injury from his presence at the scene of the accident was not reasonably foreseeable by the plaintiff;
- alternatively, any risk of the plaintiff suffering such harm was slight and did not warrant the plaintiff taking action in respect of it;
- the driver did not owe the plaintiff any duty of care requiring him to take action to avoid causing the plaintiff psychiatric harm;
- no duty of care was owed to the plaintiff as a matter of policy (having regard to powers conferred upon him by other legislation).
The insurer suggested that the issue of whether a duty of care was owed in these circumstances had not been considered by Courts previously so in that sense the case was novel.
His Honour Justice Flanagan in approaching the issue first considered the concept of foreseeability, and after referring to a New South Wales Decision of Wicks (a case in which two police officers sued the State of New South Wales for psychiatric injuries caused by attending the scene of a train derailment), his honour framed the relevant enquiry as
“whether a reasonable person in Mr Williams’ position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from Mr Williams’ negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene.”
The Court considered the role undertaken by the plaintiff at the scene of the accident and whether it was appropriate to refer to him as a ‘rescuer’. The plaintiff gave evidence that he adjusted the driver’s head to open his airway and spoke to him in words to the effect “come on mate, don’t give up”. The plaintiff also comforted the driver’s parents and assured him that he would be OK. The Court concluded in those circumstances that the plaintiff should in fact be classified a rescuer (rather than a mere bystander to the accident) and that his actions were performed in the ‘aftermath’ of the accident (as that concept was considered by Deane J in Jaensch v Coffey).
The policy issues raised by the insurer included what can broadly be described as a ‘floodgates’ argument to the effect that permitting the plaintiff in this case to recover damages would “unacceptably expand the categories of potential defendants and claimants in respect of psychiatric harm, and expose defendants to increased liability” (see ) . This argument was rejected on the grounds that the common law test already imposes strict requirements with respect to claims based on pure psychiatric injuries.
The insurer also submitted that the public are entitled to expect that police officers are equipped to avoid or resist psychiatric harm. Whilst agreeing that a policer officer might be better equipped than someone without training, on the facts of this claim, the plaintiff’s response to the accident (one which he was required to perform in accordance with his legal responsibilities) exposed him to deeply distressing and personalised circumstances.
The Court found in the circumstances that a duty of care was owed by the deceased driver to the plaintiff.
Causation and quantum
The plaintiff’s damages were reduced by 30% to reflect the degree of possibility that the plaintiff’s pre-existing vulnerability, coupled with the impact of his attending another fatal accident would have lead to the same outcome.
The insurer has filed a notice of appeal against the decision. Further information to follow shortly.
 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
QLS Accredited Specialist
P:(07) 3009 6555
July 17, 2018 in Criminal Law
Legislation in Queensland which has created a new traffic offence of ‘driving without due care and attention and causing death or grievous bodily harm’ is a positive step but still lacks clarity in its interpretation, says leading legal firm Creevey Russell Lawyers.
Creevey Russell Criminal Law Team Leader Trent Jones said the new offence effectively brings Queensland legislation into closer alignment with laws in other states, and attracts a maximum penalty of approximately $10,000 or 12 months imprisonment, as well as a minimum license disqualification of six months.
“While the introduction of the new charge is a positive step, further clarification should have been provided as to how the law ought to be interpreted, as the distinction between what constitutes ‘dangerous operation’ and ‘careless driving’ is often vague,” Mr Jones said.
“The Courts have previously said that it is the manner of driving, rather than the resultant outcome of an incident that ought to be considered in determining whether or not the driving is ‘dangerous’ in the circumstances. It is one of the vague aspects of criminal law. Quite often you are left with a scenario where the charge preferred against an individual comes down to how the investigating officer interprets the facts and what they consider the most appropriate charge. This can change from matter to matter, depending on the officer.”
Mr Jones said in some circumstances, it is evident the most appropriate charge is a dangerous operation of a motor vehicle offence, but in other instances, the law is not so clear. In circumstances where you can point to a contributory factor, such as intoxication, speeding, or texting, in my view, an argument can be mounted by prosecutions to say that the manner of driving is dangerous in the circumstances,” he said.
“On other occasions, however, once you have considered all of the evidence, it is difficult to identify any aspect of the manner of driving that is dangerous. I have had clients where, after you look at all the evidence, it is difficult to identify how they did anything wrong. The client is travelling under the speed limit; the client is checking their mirrors and road positioning; they’re not distracted or intoxicated, and they are doing everything you would expect a prudent driver to do, but for whatever reason, a fatal traffic incident occurs, and those individuals are then at the hands of an investigating officer to determine whether or not they face a traffic offence or a criminal charge, which, if convicted of dangerous operation causing death, would likely result in a term of imprisonment.”
Mr Jones said the amended traffic laws would have been better improved by providing clarification of what is ‘dangerous’ compared with what is ‘careless’, rather than focusing on the outcome. “Once you can identify if something is careless or dangerous, it is then easy to work out what the appropriate charge is by then looking at the resultant outcome,” he said.
If you are involved in a traffic incident, no matter how minor or serious the offence may initially seem, call Creevey Russell Lawyers on 1800 CrimeLaw (1800 2746 3529).
You are walking down the street in Cavill Avenue, and a police officer pulls you aside and advises you that they are conducting a search of you – what can you do?
When can police search you without a warrant?
The starting position is that police have no general power to search anyone on the off chance of finding something incriminating. Thus, with limited exception, police have no right to search you.
To perform a warrantless search of a person in Queensland in public, the police officer/s conducting the search must reasonably suspect any of the prescribed circumstances outlined in section 30 of the Police Powers and Responsibilities Act 2000. There are many prescribed circumstances, but for the purpose of this article, we will focus on possession of dangerous drugs, which is a commonly relied upon reason for conducting warrantless searches.
The test for whether the search will be lawful comes down to whether or not there were grounds capable of supporting a reasonable suspicion that a person is in possession of dangerous drugs. What this means is a suspicion has to be honestly held and underpinned by sufficient facts and circumstances to show this belief at the time of conducting the search. The reasonableness of the search is not determined by what is found or happens after, rather it is determined by the actual state of the police officer/s mind at the time of performing the search.
An example of the facts police will rely on to search someone suspected of possessing dangerous drugs is:
- In regards to appearance – at the time of the search the person is unsteady on feet, pupils dilated, sweating, licking their lips, shaking; and/or
- a sniffer dog indicates the existence of dangerous drugs.
When police are conducting a search without a warrant, they are entitled to search anything in a person’s possession (e.g. bag) for dangerous drugs.
What can you do if police perform a search of you without a warrant?
- Provide your name and address, however, politely say that you’re unwilling to answer any further questions
- Ask if they have a warrant to perform the search.
See if someone can record what your appearance is at the time, and specifically ask the police officer/s what facts and circumstances gave rise to them conducting the search. This evidence may be able to be used at a pre-trial hearing to determine if any incriminating evidence found can be excluded on public policy grounds.
Please contact Patrick Quinn or Hugh Tait at Creevey Russell Lawyers on (07) 3009 6555 for further information.