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Drivers Owe a Duty of Care to Rescuers

AAI Limited v Caffrey [2019] QCA 293

Do Drivers Owe a Duty of Care to Rescuers? The Queensland Court of Appeal has recently confirmed that drivers owe a duty of care not only to passengers and other drivers, but also to police officers or any other rescuers who attend an accident scene.

Background

On 17 February 2013, a Queensland Police officer – David Caffrey – developed post-traumatic stress disorder (PTSD) after attending a fatal motor vehicle accident.[1]

The driver had crashed his Holden Commodore into a tree after driving at an excessive speed while intoxicated by methamphetamine, amphetamine, and marijuana.[2]  Mr. Caffrey arrived on the scene and did as much as he could to keep the driver alive while trapped inside the vehicle. He rendered first aid, instructed another Senior Constable to call the paramedics, and encouraged the driver to stay alive with words like, “Come on, mate”, and “Don’t give up”. Tragically, in spite of the efforts of Mr Caffrey and the paramedics, the driver’s life was lost. Mr Caffrey broke the news to the mother and stood by her side as she said goodbye.[3]

This performance of duty had an enormous effect upon Senior Constable Caffrey. He subsequently became angrier and sadder, often weeping, drinking a lot of alcohol and showing undue anger and irritation.  He further had suicidal thoughts and fantasised about going back to work and using his pistol.[4] His GP declared him unfit for work.[5]

Cause of Action

Pursuant to section 52(2) of the Motor Accident Insurance Act 1994 (Qld), Mr. Caffrey sued the driver’s CTP insurer (Suncorp Insurance) for the damages caused by the psychiatric injury resulting from his negligent drink driving.[6]

Issue

The driver’s negligence was not in dispute. Instead, the substantial issue was whether tort law in Australia should recognise an entitlement to recover for purely psychiatric injury for rescuers, like police officers, who during their occupation are exposed to highly distressing events, against the person liable for the lack of care which caused the traumatic event, in this case the CTP insurer of the deceased.[7]

Trial Judgement

Flanagan J at first instance held that an insured driver does owe a rescuer such as Mr. Caffrey such a duty. It was found that the intoxicated driver had been negligent, and that his breach of duty had caused Mr. Caffrey’s psychiatric injuries. His Honour assessed damages in the sum of $1,092,947.88.[8]

Court of Appeal

The CTP insurer appealed the decision on the basis that the trial judge erred in finding that a duty of care could be owed by a driver who causes purely psychiatric harm to a person whose job involves attending events where distressing injuries like the ones in this case may be present. [9]

It was argued by the CTP insurer that if the police officer could recover damages, then this would ‘open the floodgates’, so to speak, to a number of prospective claimants such as firefighters, paramedics, doctors, nurses as well as non-medical staff at hospitals. [10] It was argued that any psychiatric harm for such events is best pursued through the liability of the employers (e.g. WorkCover) and not through CTP insurance. [11]

The Decision

Ultimately, His Honour Sofronoff P, with Philippides JA and McMurdo JA agreeing, upheld the decision of the trial judge. Importantly, His Honour referred to Cardozo J in Wagner v International Railway Co as a starting point in discussions about the law on this subject:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is also a wrong to his rescuer”.[12]

This article was written by Luke Borgert and Marisol Tobon


[1]AAI Limited v Caffrey [2019] QCA 293 [1] (‘AAI Limited v Caffrey‘)

[2] Ibid [8].

[3] Ibid [2]-[4].

[4] Ibid [5].

[5] Ibid.

[6] Ibid [8].

[7] Ibid [10].

[8] Ibid [8].

[9] Ibid.

[10] Ibid [15].

[11] Ibid [16].

[12] Ibid [20].

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