Can frontline emergency workers sue for trauma for the horrors they see?

By Trent Johnson|18 February 2019

Can front line emergency service people claim compensation for the psychological trauma that confronts them at horrific accident scenes? asks Bennett & Philps’ Trent Johnson.

It is a little-understood issue which has now gained renewed focus after a recent successful case. A former Queensland policeman, who suffered post traumatic stress from seeing a driver die at an accident scene has successfully sued the driver’s CTP insurer for more than one million dollars.

A judge found the driver owed a duty of care not to cause psychiatric injury to Senior Constable David Caffrey, who was called to attend an accident caused by the intoxicated motorist’s negligent driving.

While the details of the fatal accident in 2013 are heartbreaking, the compensation lawsuit against the driver’s CTP insurer AAI Limited examined an assumption that many in the community may have about emergency service first responders.

The insurer argued the public were entitled to expect a police officer deployed to an accident scene would be equipped with sufficient experience and training to avoid psychiatric harm – in other words a cop should know how to cope with what they see and experience.

However, what may not be realised is while the state government has measures in place which expect police, ambulance and fire service first responders to be resilient, the law also provides for such people, deemed to be “rescuers”, to have compensation rights if the driver who has caused the accident could be regarded as being liable for it through adverse behaviour such as intoxication, speed or careless driving.

If the driver’s behaviour caused the accident which required others to suffer psychiatric trauma while helping him, then the emergency responder can seek compensation through the driver’s insurer.

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The claim which went to the Supreme Court, involved a fatal crash on the Sunshine Coast in 2013. The driver had lost control of his Holden Commodore, while intoxicated by methamphetamines, amphetamines and marijuana, the court heard.

Senior Constable Caffrey responded to the crash and arrived before ambulance and fire service rescuers to find a car wrapped around a tree and the injured driver trapped inside. He climbed up to the wreckage, tried to clear the driver’s airway, held his head, encouraged him to stay alive and was there, comforting the driver’s parents, when the driver died.

Media reports quoted him saying he had never seen anybody die in front of him in his two decades as a police officer. The trauma hit him and he said it took him two years to remove the image of his son’s face from his memory of the dead driver’s face. “I just kept seeing my son,’’ he said.

At the accident scene he frantically tried to save the driver, reassuring him and later comforting the driver’s parents when they arrived at the scene. After learning that the driver was going to die, Mr Caffrey took the mother’s hand and said “Come on. Let’s go — go to say goodbye’’, and was with the parents when their son died.

Mr Caffrey was off work for 17 months and after being diagnosed with chronic post-traumatic stress disorder, he was dismissed, after refusing a direction to retire. He contemplated suicide and drank heavily as his life unravelled.

It was the beginning of a legal journey that ended at the Supreme Court with Justice Peter Flanagan rejecting the CTP insurer’s argument that denied the driver owed a duty of care to rescuers traumatised by the driver’s actions.

Justice Flanagan said a person who, by their negligence, caused an accident must contemplate the fact that police are human and not entirely immune to psychiatric injury, even where they use training and detachment techniques. He ordered the CTP insurer to pay Mr Caffrey $1,092,947.

The decision, while not a precedent setter, is important because it clarifies the law for rescue workers attending traumatic incidents as part of their job. The legal claim was rightly against the driver’s CTP insurer.

“A member of the public … is not entitled to drive in any manner he wishes, without regard to police officers who may attend at an accident he may cause, simply because police officers ‘undertake for the benefit of the public’ to attend at such scenes,’’ Justice Flanagan said.

A police officer legally obliged to respond to emergencies, in fact, placed himself or herself in a situation of elevated risk in respect of psychiatric harm,’’ the judge said.

A key point in the decision was the role of “rescuer” played by the attending police officer. He kept the driver’s airway clear, held him and due to the driver’s injuries instructed paramedics not to move the trapped driver until fire service personnel could safely cut him from the wreckage.

Then he supported and comforted the driver’s distraught parents at the scene as their son died. By all accounts Mr Caffrey treated the dying driver like his own son. So by legal definition he was most certainly a rescuer and thus entitled to claim against the driver’s CTP insurer for the trauma he suffered.

This summary is by necessity a precis of a complex judgment of a complex case but the crux of it reaffirms the legal rights of emergency rescuers traumatised by accidents caused by the driver’s negligence.

Such claims are not possible if the driver is not at fault. So what we have is not a new decision but a clear and correct re-stating of existing law. Naturally the claim was hard fought by the CTP insurer but the court has rightly found that, in effect, adopting the role of a rescuer at a horrific crash scene caused by a driver’s blatant negligence is not just something police and others have to accept as part of the job without recourse to common law compensation for an associated injury.

Trent Johnson is an accredited specialist in personal injury law and a director with Brisbane firm Bennett & Philp Lawyers.

Can frontline emergency workers sue for trauma for the horrors they see?
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