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Can front line emergency workers sue for trauma compo for the horrors they see?

By Trent Johnson - posted Thursday, 21 February 2019


It's a little understood issue and now has a 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.

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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.

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.

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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.

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About the Author

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

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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