The NSW Court of Appeal has overturned a decision of the District Court on the basis that a person of normal fortitude in the plaintiff’s position would not have suffered a psychiatric illness, and expert opinions were founded on key assumptions not able to be proven and were of little to no weight.
In issue
Lederer Pty Ltd (the Second Defendant at first instance and Appellant before the NSW Court of Appeal), appealed the District Court of NSW decision on the bases that the primary judge erred in finding that:
- the appellant owed the Respondent Mr Hodson, a duty of care not to cause mental harm,
- pursuant to s 5B of the Civil Liability Act 2002 (NSW) (CLA), the Appellant breached its duty of care, and
- such a breach was a necessary condition of any harm.
Hurex Pty Ltd (the First Defendant and Cross-Appellant), filed a cross-appeal on similar grounds, namely, whether the primary judge erred in finding that:
- the risk of injury was foreseeable,
- a reasonable response to the risk of injury would have been a direction not to attend significant incidents generally, and
- the Respondent’s injury was caused by any such breach.
The background
The proceedings concerned a claim by the Respondent for damages for pure mental harm (i.e. independent of and not consequent upon physical injuries), pursuant to the CLA.
The Respondent was employed by the Cross-Appellant, a commercial cleaning labour hire firm, and pursuant to an agreement between it and the Appellant for the provision of cleaning contractors, was placed at the Appellant’s premises, Corrimal Shopping Centre (the Centre), as a cleaner with additional caretaking duties. He was under the day-to-day control of the Appellant as his 'host' employer, yet this was absent any formal employment relationship.
On the morning of 26 October 2020, in the loading dock of the Centre, an elderly patron was struck and killed by a truck.
The proceedings were brought by the Respondent against his actual and 'host' employers, and not the driver of the truck which struck the patron.
The Respondent ordinarily worked the afternoon shift, and his colleague Mr Brydon worked the morning shift. That arrangement was in play on 26 October 2020.
Shortly after the incident occurred Mr Brydon arrived on scene and saw the deceased. NSW Ambulance arrived some minutes later, followed by Ms Necovski (employed by the Appellant). The deceased was promptly covered by paramedics with a white sheet.
Ms Necovski determined that Mr Brydon was too distraught by the incident to continue working. She telephoned the Respondent advising him that there had been a fatality and requesting that he attend the Centre as soon as possible to relieve Mr Brydon (thereby starting his shift early).
The Respondent arrived at the Centre and called Ms Necovski via radio, discovering she was at the northern loading dock. The Respondent arrived at the dock shortly thereafter, and not seeing Mr Brydon, queried Ms Necovski as to his whereabouts. Ms Necovski pointed to his location in the dock but did not specifically request the Respondent to approach him.
The Respondent approached Mr Brydon and together they walked away. Whilst waking away, a NSW Police officer called them to him. They changed course and approached the officer, and consequently the Respondent had line of sight to the deceased - albeit under the white sheet.
CCTV footage confirmed that the Respondent at no time saw the deceased or the deceased’s injuries. He did, however, see the white sheet at the front wheel of the truck which covered the deceased’s body.
In the days or weeks following the incident, of his own volition the Respondent watched CCTV footage of the incident in which he saw the truck colliding with the deceased (this did not comprise part of the Respondent’s pleaded case). In the days and months following, the Respondent attended GP, psychiatrist and psychologist consultations in which he recounted seeing the deceased’s injuries and/or the incident itself. The Respondent was diagnosed with chronic post-traumatic stress disorder. Clinical notes conveyed that the Respondent’s perception of the deceased’s body and injuries were firsthand, absent any mention of the recording.
The Respondent had a prolonged history of mental illness, including at the time of the incident, being medicated for a recurrent depressive disorder associated with anxiety. This was not known to the Appellant or Cross-Appellant, save for some emotional distress surrounding his marriage.
Several experts in the proceedings were instructed to assume, or were informed by the Respondent, that he perceived the incident and/or deceased’s body. Additionally, the experts were instructed that the Respondent re-attended the scene (including by direction from Ms Necovski), observing, inter alia, Fire and Rescue NSW personnel washing away bodily matter (this was not, however, established at first instance or on appeal).
The decision at trial
The Appellant submitted that the court should attribute no or little weight to the expert evidence on the basis that the assumptions underlying the opinions were found to be incorrect His Honour did not accept this submission, including because the experts formed their opinions from several factors, not merely the Respondent’s account of his attendance at the loading dock. His Honour concluded that on balance the Respondent’s psychiatric illness arose from his exposure to the scene of the accident.
The primary judge found that it was reasonably foreseeable by the Appellant, by and through its employee Ms Necovski, that pursuant to s 32 of the CLA a person of normal fortitude, having perceived what the Respondent did, might have suffered a recognised psychiatric illness if reasonable care were not taken, and therefore, the duty to not cause the Respondent mental harm existed.
His Honour determined that Ms Necovski ought to have directed the Respondent not to attend the loading dock whilst the deceased’s body remained there. Additionally, his Honour stated that the Cross-Appellant ought to have provided prior direction to the Respondent to not attend major incidents.
The decision on appeal
The NSW Court of Appeal (Ward P, with Leeming JA and Basten AJA agreeing) upheld all grounds of appeal, unanimously overturning the decision at first instance.
The Court of Appeal found that the primary judge erred in finding that the Appellant and Cross-Appellant owed the Respondent a duty of care to not cause mental harm. In applying s 32 of the CLA, the court found that the evidence did not support the findings requisite for existence of a duty of care, being (i) a person of normal fortitude might; (ii) in the circumstances of the case suffer; (iii) a recognised psychiatric illness, if care were not taken.
In forming this view Ward P, pursuant to s 32(2), considered that:
- the Respondent had advance warning of the fatality and Mr Brydon’s distress, and a finding of sudden shock could not be made where the Respondent arrived after the body was covered and knowing what had happened,
- the Respondent did not witness the deceased being killed, injured or put in peril, nor did he see the deceased’s body, and
- whilst the Respondent came to know the deceased was a regular customer of the Centre, this was an indirect relationship, and not something known to the Respondent when he attended the scene.
His Honour found that the existence of a duty to not cause mental harm in the Respondent’s case did not accord with common sense, drawing an analogy of sorts to motorists slowing down and witnessing motor vehicle collisions when travelling on public roads.
In relation to the Appellant’s limited knowledge of the Respondent’s emotional fragilities, including being emotional about marital and familial problems, his Honour considered this insufficient to detract from a finding that a psychiatric injury was not reasonably foreseeable; it was not the kind of susceptibility outlined by Gaudron J in Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35.
Secondly, the Court of Appeal found the Appellant did not breach its duty of care. Whilst not agreeing with the Appellant’s submissions that risk of harm did meet the threshold of being 'not insignificant', Ward P found that the Appellant did not breach its duty of care by omitting to direct the Respondent to not attend the loading dock. His Honour did not accept that there was a reasonable probability that the Respondent’s 'mere attendance… and limited exposure… would cause him to suffer psychological injury'.
The Court of Appeal held that requiring the Appellant to direct the Respondent to not attend the loading dock would have been a 'counsel of perfection' in circumstances where Ms Necovski was required to juggle several priorities.
Thirdly, going to the matter of causation, the court found that it was not open to the primary judge to find the exposure caused the Respondent’s psychiatric condition where the expert evidence was founded on key assumptions which were subsequently found to be incorrect.
Implications for you
Claims for pure mental harm are 'intrinsically and inevitably fact-dependent', demanding 'a cognate factual inquiry'. This decision does, however, provide a discernable framework for the approach courts take in determining the existence and scope of a duty of care not to cause mental harm pursuant to s 32 of the CLA. The foreseeability of harm is key to determining the existence of the duty, turning on a prospective enquiry.
The factors at (a) to (d) of s 32(2) assist the courts in determining the existence of the duty, however, they are not exhaustive nor are they necessary pre-conditions in establishing the requisite foreseeability of mental harm.
In relation to expert evidence, this decision is an important reminder that experts ought only to be instructed with assumptions where these can be proven or otherwise supported.