Hodson v Hurex Pty Ltd and Lederer Pty Ltd - [2024] NSWDC 143

District Court

New South Wales

Medium Neutral Citation: Hodson v Hurex Pty Ltd and Lederer Pty Ltd [2024] NSWDC 143
Hearing dates: 26 February– 1 March, 5 March – 6 March, 16 April 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Civil
Before: Fitzsimmons SC DCJ
Decision:
(1) Verdict and judgment for the plaintiff against the first and second defendant to be the subject of agreed calculations based on my findings in this judgment.
(2) Verdict and judgment for the cross-claimant against the cross-defendant on the cross claim.
(3) The parties are to agree on short minutes of order reflecting my findings within 14 days.
(4) The first and second defendant are to pay the plaintiffs costs of the proceedings.
(5) Any application for an alternative or additional costs order is to be made in writing within 14 days.

Catchwords:
CIVIL – claim for pure mental harm – normal fortitude test – recognised psychiatric injury – liability of host employer – liability of employer – non delegable duty of care – whether psychiatric injury caused by exposure to traumatic scene – assessment of non-economic loss – economic loss

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5R, 13, 32
Workers Compensation Act 1987, s 151G

Cases Cited:
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146; [2018] NSWCA 146
Blacktown City Council v Hocking [2008] NSWCA 144
Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354
Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Dib Group Pty Ltd Trading as Hill & Co v Cole (2009) Aus Torts Reports 82-022; [2009] NSWCA 210
FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
Fox v Wood (1981) 148 CLR 438
Graham v Baker (1961) 106 CLR 340
Hadid v State of New South Wales [2024] NSWCA 73
Karpik v Carnival PLC (The Ruby Princess) (IT) [2023] FCA 1280
Kondis v State TransportAuthority (1984) 154 CLR 672
Lapore v State of New South Wales (2001) 52 NSWLR 420
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
Mason v Demasi [2009] NSWCA 227
Mead v Kerney [2012] NSWCA 215
Mount Owen Pty Ltd v Parks [2023] NSWCA 77
Optus Administration Pty Ltd v Glen Wright by his tutor James Stuart Wright [2017] NSWCA 21
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321
State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strong v Woolworths Ltd [2012] HCA 5; (2012) CLR 183
Tame v New South Wales and Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47
Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296
Wallace v Kam [2012] NSWCA 82
White v Redding [2019] NSWCA 152

Category: Principal judgment
Parties: Andrew Hodson (Plaintiff)
Hurex Pty Ltd (First Defendant)
Lederer Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr D Campbell SC with Ms J L Magee (Plaintiff)
Mr J J Ryan (First Defendant)
Mr S E McCarthy (Second Defendant)
Solicitors:
RMB Lawyers (Plaintiff)
McCabes Lawyers (First Defendant)
Bartier Lawyers (Second Defendant)

File Number(s): 2023/00084062
Publication restriction: NIL

Introduction

The plaintiff's case as pleaded

The injury

The lay evidence

The plaintiff
Sonja Necovski
The CCTV footage

Findings of fact

The medical evidence

Findings as to the plaintiff's psychiatric condition

Liability of Hurex

Breach of duty
Causation
Claim for pure mental harm

Liability of Lederer

Section 32 findings
Breach of duty
Causation

Apportionment as between the first and second defendant

The cross-claim

Contributory negligence

Damages – Lederer

Non-economic loss
Past economic loss
Past loss of superannuation
Fox v Wood damages
Future economic loss
Future loss of superannuation
Past treatment expenses
Future treatment expenses

Damages - Hurex

Past economic loss
Past loss of superannuation
Fox v Wood damages
Future economic loss
Future loss of superannuation

Judgment

Introduction

On the morning of 26 October 2020 an elderly gentleman (“the victim”) was walking across the northern loading dock of the Corrimal Shopping Centre (“the shopping centre”) when he was run over by a semitrailer manoeuvring in the dock area, causing fatal injuries.
Since June 2020, the plaintiff had been working as a cleaner at the shopping centre. He was employed by the first defendant (“Hurex”), being a labour hire company, and placed in a permanent role with the second defendant (“Lederer”) as the host employer. The plaintiff routinely worked the afternoon shift from approximately 4:00pm to 10:30pm.
The plaintiff claims psychiatric injury, having been required by an employee of Lederer to attend the location of the accident to relieve a colleague, Josh Brydon (“Brydon”), who had been severely traumatised by the accident scene. The plaintiff claims that he was thereafter directed to carry out certain duties including returning to the scene on several occasions.
The plaintiff makes a claim in negligence against Hurex and Lederer. There is no issue that Hurex, as the plaintiff's employer, and Lederer, as the plaintiffs host employer, owed the plaintiff a duty of care. The central issues concern whether the plaintiff suffered a recognised psychiatric illness as a result of the exposure to the scene of the accident, the alleged breach by each of the defendants, and whether any alleged breach was causative of the plaintiff's psychiatric injury. The issues are in part complicated by the plaintiff's pre-accident psychiatric history and the alleged incorrect history relied upon by the medicolegal experts in reaching their opinions.

The plaintiff's case as pleaded

The plaintiff filed an Amended Statement of Claim (“ASOC”) at the commencement of the hearing which sought to further articulate the risk of harm for the purpose of s 3B of the Civil Liability Act 2002 (“the CLA”). However, the substance of the plaintiff's claim as originally pleaded remained the same. Having identified the respective roles of Hurex and Lederer, the ASOC particularised the circumstances in which the alleged injury occurred.

The injury

The plaintiff alleged that on 26 October 2020 a fatal motor incident (“the traumatic incident") occurred at the shopping centre loading dock, resulting in the plaintiff sustaining psychiatric injury. The particulars identified several factual matters not otherwise in dispute including the accident, the death and the victim's injuries. Further, that the plaintiff, who was at home and not rostered to commence work at the shopping centre until later in the afternoon, was directed to attend the scene by an employee of Lederer as there had been a fatality. The particulars further alleged that the plaintiff urgently attended the shopping centre where he contacted Sonja Necovski (“Necovski”) who advised him that she was at the northern loading dock.
Relevantly, the particulars alleged that, adopting the lettering in the ASOC: –

“k. The plaintiff arrived at the scene of the accident around the same time as police and ambulance.
l. When the plaintiff arrived at the northern entrance Sonja Necovski directed him to Josh Brydon (also employed by the first defendant) who was standing at the back area of the dock in close vicinity to the victim.
m. The plaintiff walked to Josh Brydon and observed he was visibly upset. Brydon directed the plaintiff's attention by pointing towards the victim's body lying on the ground.
n. The plaintiff looked towards the body and saw the victim's injuries which included his face being squashed and his brain matter visible.’
o. The plaintiff felt instantly frightened, nervous and as if he was going to vomit.”

The particulars further alleged that the plaintiff took Brydon to his office within the shopping centre, telephoned Brydon’s partner and requested her to collect him. It is further alleged that the plaintiff was redirected to the scene of the accident on a number of occasions thereafter.
The risk of harm was articulated as follows in the ASOC: –

“16A There was following on from the traumatic incident a risk of psychological injury to persons including the plaintiff in the event such persons were exposed to the aftermath of the traumatic incident."

It was alleged that due to the plaintiff's exposure to the traumatic incident, the plaintiff was at a foreseeable risk of harm of developing a psychological injury and entrenching and/or worsening any "psychological injury, pre-existing condition".
Consistent with s 5B of the CLA, the plaintiff alleged that by being exposed to the traumatic incident the risk of harm to the plaintiff was foreseeable, not insignificant and such that a reasonable person in the position of the defendants would have taken steps to avoid or minimise the risk of harm. It was further alleged that the risk of harm was not insignificant on the assessment of the facts, matters and circumstances considering: –

the gruesome nature of the injuries incurred by the victim of traumatic incident; and

that exposing the plaintiff to the traumatic incident was far beyond the scope of his ordinary duties and expertise in the scope of his employment.

Various particulars of negligence were alleged including having required the plaintiff to attend the shopping centre and failing to direct him to avoid the loading dock and its surrounds.
Evidence was given by the plaintiff and Necovski. CCTV footage of the incident, documents produced by New South Wales Police and an incident report produced by Lederer were also in evidence. The clinical records of several medical centres the plaintiff attended were also tendered as well as the reporting clinical notes of the treating psychologist.
The plaintiff relied upon several psychiatric medicolegal reports as well as treating reports. Hurex commissioned its own psychiatrist to provide several medicolegal reports. The psychiatrists produced a joint report following the conclave where general agreement was reached in respect to diagnosis, prognosis, and the requirements for future treatment.
Lederer contended that the underlying factual assumptions upon which the opinions of the medicolegal psychiatrists were premised were contrary to the evidence with the result that their respective opinion, and the opinions contained in the joint report, would not be accepted.

The lay evidence

The plaintiff

The plaintiff gave evidence that he presently lives in a small village 30 minutes’ drive from Temora and over one hour drive from Wagga Wagga. He originally grew up in Canberra and was the youngest of a family of four. He remains in contact with his older sister.
The plaintiff left school at the end of year 10 and primarily worked as a labourer. He broke his back in a motorbike accident, restricting his ability to do heavy work. The plaintiff moved from Queensland to Wollongong in 2019 for "a new start", hoping to leave behind ‘difficulties’ from that state. The plaintiff acknowledged that prior to the accident he continued to experience depression for which he was being treated by a general practitioner and prescribed medication.
Upon securing the position at the shopping centre he was directed to report to a supervisor by the name of Margaret. His induction was performed by the employee whom he was replacing. The plaintiff was not given any instruction on issues such as the handling of confronting events, dealing with someone who may suffer a serious medical condition, patrons who may have been handling weapons, or dealing with a person who may have been involved in a confronting accident.
Whilst his formal designation was as a cleaner, the plaintiff alleged he was also required to undertake maintenance such as painting the floors and car park markings. He was also asked to perform security work such as requesting intoxicated persons to leave the shopping centre, stopping errant children who may have been riding bikes contrary to shopping centre policy, or drug users in the toilets which required the calling of police.
Necovski was his primary contact, and she would direct him to perform tasks on a daily basis. The usual morning cleaner was Brydon who generally worked from 6:00am to 2:00pm. The plaintiff’s afternoon shift included the closing of the shopping centre. He worked seven days a week. He believed Tony Warren was the centre manager who would be in the office one day per week. Mr Warren did not provide any specific instructions in respect to his duties.
The plaintiff’s contact at Hurex was a person by the name of Mr Cheung. The plaintiff understood he was based in Sydney and would attend the shopping centre approximately once per month to undertake inspections.
The plaintiff gave evidence that on the morning of 26 October 2020 he was contacted at home by Necovski and requested to attend the shopping centre in circumstances where there had been a fatal accident. The plaintiff initially attended the office area only to find it vacant. He then attended the cleaning room, obtained his keys and radio before attempting to call Brydon. Having received no answer, he called Necovski who advised that she was at the northern dock. He attended the vicinity of the dock and saw Necovski in the front of a retail business on the outside of the shopping centre. He had a short conversation with Necovski as to what had occurred and was pointed in Brydon's direction. Having observed Brydon to be upset, he attempted to console him. He felt compelled to remove Brydon from the situation, and with the polices consent, the plaintiff returned him to the centre management office.
When the plaintiff was asked what he observed whilst at the dock he recalled seeing police and a police vehicle and had a brief conversation with the police. He had no recollection of the direction in which he was looking. Having returned Brydon to the office, the plaintiff contacted Brydon's girlfriend who coincidentally worked in the shopping centre. He acknowledged that several weeks after the incident he saw the CCTV footage of the incident which involved a man walking from his car towards the truck which “jumped”.
The plaintiff alleged that sometime later he was requested by Necovski to return to the scene of the accident to see if the truck and “everything" had been removed. When returning to the scene he observed the police vehicle and fire brigade officers. He observed the officers to be hosing down the road where the truck had previously been stopped. There was police tape along the fence and footpath. Having reported these observations to Necovski he returned to his duties, including routine inspections of the shopping centre. Within the hour Necovski requested he return to the scene to ensure the area was tidy and that the police tape had been taken down in the context of it “not being a good look for the shopping centre”. He returned to the scene once again and observed that the police tape remained in place. The police officer advised him that the tape needed to remain in place as the area remained a crime scene. He subsequently reported this to Necovski.
The plaintiff was asked how he felt when he was with Brydon. He described feeling sick, his stomach churning and shaking, although he tried to “hold it together" for the sake of his colleague. He returned to the office and cried alone, whilst acknowledging that his memory of the details was “sketchy".
Having completed his shift, the plaintiff was required to return the next day at 6:00am in circumstances where Brydon was not able to attend. He effectively worked the double shift that day. He could not recall Necovski asking after his welfare.
The plaintiff gave evidence that he attended his general practitioner in the days after the accident and faithfully reported his symptoms. He was prescribed medication which did assist to an extent. He continued to attend work in the days and weeks thereafter, although upon arriving at work he would feel upset and emotional. Whilst his usual duties required him to attend the area of the accident, he would attempt to avoid it.
The plaintiff was directed to a clinical note of his general practitioner dated 27 October 2020 in which the history was recorded that he had witnessed an accident the day before in the car park involving an old man getting crushed by a truck. The plaintiff conceded that on the day of the accident he never saw the old man and he had no recollection of who told him this fact.
The plaintiff explained that the feelings of helplessness, recorded in the general practitioner's notes, were in the context of him feeling very rundown, emotional and “just not right”. He admitted that in the subsequent appointment with his general practitioner on 9 November he reported being anxious about his work and family including his 15-year-old son who was involved in the use of alcohol.
He continued to see a general practitioner in 2020 and 2021 and was referred to a counsellor who he first saw in early 2021. The plaintiff stated that in association with his work problems he was also experiencing difficulties with his then partner.
By March 2021 he had been given a note by his general practitioner to provide to his employer in respect to his work. The corresponding clinical note recorded the plaintiff being tearful. The general practitioner recorded flashbacks which involved police cars, although he could not remember the other details. The plaintiff continued to experience daily flashbacks thereafter, which involved being unable to exit the corridor that led to the dock other than walking through the loading dock.
He ceased work on 13 May 2021 having been issued with a medical certificate by his doctor and had not returned since. He was subsequently referred to Dr Panesar, psychiatrist to whom he reported poor concentration and memory as well as mistakes at work due to an inability to focus; for example, he would fail to lock the shopping centre at the end of his shift. He was prescribed medication for symptoms of post-traumatic stress disorder as well as additional medication to assist with sleep and loss of appetite. The plaintiff described waking up three or four times at night with nightmares, with the same recurring themes as his flashbacks. He continued weekly treatment with a psychiatrist for about one year and commenced seeing Rodney Ward, psychologist in July 2021. He also continued to be reviewed by his general practitioner.
Whilst the plaintiff was giving evidence about the day of the accident and its aftermath, he was at times emotional and had difficulty speaking. There were several occasions where the plaintiff paused to regain his composure before answering the questions asked of him.
The plaintiff gave evidence that when he relocated to Temora he commenced seeing his local general practitioner, Dr Christmas. He also saw a psychologist Candour Hu in the Riverina. The plaintiff spoke of experiencing fatigue and difficulty with long drives. He experienced panic attacks involving sweating and shaking when close to a truck on the highway. He experienced fatigue with stressful situations and continued to experience difficulties with short-term memory. He also experienced difficulties with sleep and nightmares.
Dr Christmas prescribed medication for his post-traumatic stress disorder. He had last seen a psychiatrist about 12 months prior as he had struggled to find a suitable specialist given his location. The plaintiff continued to become emotional and would cry several times a week. He always had a sense of doom as well as feelings of being scared and uncertain. He would happily attend a psychologist and/or psychiatrist if one was recommended and found to be suitable.

In cross examination by Mr Ryan, the plaintiff spoke of his stepson who he had known since he was a toddler. He always considered it important to provide for his family and was keen to obtain work despite his back disabilities. His long-term partner had run a cleaning business from home and therefore he had experience in this industry. It was in this context that he secured the position at the shopping centre. This involved cleaning the common areas, bathrooms and outside exit areas. It also involved other cleaning duties such as removing graffiti. When he first commenced work there were security guards around the shopping centre, although later their hours were reduced by centre management. The plaintiff’s designation changed from cleaner to caretaker, and he was thereafter directed to undertake other work, including maintenance and security duties.
Mr McCarthy cross examined the plaintiff on the histories provided to various medicolegal psychologists. This included telling Dr Panesar that he did not have any significant history of mental illness, although he suffered from mild depression three years earlier, which had been treated by a general practitioner with medication. This was in the context of a relationship breakdown and being upset about the loss of the opportunity to live on a farm owned by his father-in-law.
The plaintiff told Dr Clark in January 2022 that he had suffered stress surrounding an eviction from the home in which he lived and being homeless for a period. He had been on medication for approximately six months. He had also suffered an episode of mental health in 2019 in the context of a close friend dying from cancer. Further, he had four or five sessions of counselling and was prescribed mirtazapine, following which he had recovered. However, he conceded that he remained on a lower dose of the medication.
In May 2022, the plaintiff told Dr Bertucen that he had suffered financial stress from having to move out of the home in which he was living and further stress in 2019 arising from marital issues. He told Dr Bertucen that by May 2020 his mood stabilised, and the anti-depressant dosages had been reduced. The plaintiff told Dr Allnut that he was unaware of any mental illness in his family. He denied being aware of any psychological issues with his brother. There was also reference to the plaintiff experimenting with drugs.
The plaintiff told Dr Malik that he suffered a low mood in his 20s for which he was prescribed Zoloft. He was seeing a counsellor in 2014 arising from relationship issues, financial stress and the loss of the father-in-law's farm.
The plaintiff was cross-examined on his personal and psychological history. Whilst raised in Canberra, he moved to the Gold Coast at the age of 17 or 18 where he saw various practitioners. Prior to Bundaberg, he would attend a family practice at Hinkler. The plaintiff was unable to recall experiencing auditory hallucinations in 2005, despite an entry in the clinical notes of the family practice at Hinkler. However, he did experience symptoms of claustrophobia. He accepted that he suffered from paranoia in 2005 in the context of been concerned for his own safety because of the person with whom he was residing. He accepted that in 2006 he sought assistance of the Child and Youth Mental Health Unit (“CMHU”), again in the context of concerns for his safety. He further accepted that around this time he was experiencing difficulties coping and with sleep. Further, that he was an impatient at the CMHU for approximately four days and was prescribed Zyprexa.
However, the plaintiff denied ever being diagnosed with bipolar or schizophrenia, believing that the Zyprexa was prescribed for his paranoia. He agreed that up to 2008 he was experiencing fluctuating symptoms and was on and off the various medications. He was unable to recall providing a history to a mental health service in July 2007 of feeling depressed when he was 17 or 18, or that he provided a history that he could not hold down a job and most of the time could not get out of bed. He accepted that a false allegation that he had assaulted his partner led to police intervention. He further accepted he was suicidal for a brief period in 2007. He agreed that he had been sexually abused at the age of 12 which was a matter of some stress at the time it occurred.
The plaintiff was questioned on the clinical notes from Corrimal Medical Centre, commencing with a history in August 2019 of anxiety and depression in the previous six months in the context of allegations of domestic violence. These allegations led to the move from Cooma to Wollongong. He agreed that this caused significant distress and he was prescribed mirtazapine. Over the ensuing months the dosage of mirtazapine varied depending upon his condition. In November 2019, it was noted that the plaintiff was seeing a counsellor and that his mirtazapine prescription remained at 30mg. In March 2020 the plaintiff reported that he had been very anxious with poor sleep in the context of a Court hearing which had been determined in his favour. He felt that he was in a "good place" when he commenced his cleaning work in June 2020.
The plaintiff was questioned about a consultation with his general practitioner in early July 2020 with respect to anxiety and depression. By late August 2020 the plaintiff was reporting anxiety and depression, being very anxious and tearful in the context of stress at work. He experienced poor sleep and worry. He recalled a couple of things at work had caused this depression and his mirtazapine was increased. In September 2020, there was a report of being very anxious at times with poor sleep. By mid-October 2020, he had reported working long hours with no break, as well as tiredness. The general practitioner reported that the plaintiff sounded “low". The plaintiff remained on the 30mg script for mirtazapine.
The plaintiff was then reminded of his attendance at his general practitioner on the day after the incident (27 October 2020) and that he returned on 9 November reporting that he remained distressed with poor sleep and was anxious about his work and 15-year-old son. There were further attendances in November with a history of stressful work, poor sleep, and tiredness. The plaintiff was reminded of a consultation on 22 December in which he reported working long hours with no break, although his tiredness and work situation was improving. The plaintiff returned to his general practitioner on 22 January reporting working long hours without a break and that the manager that had been troubling him had been sacked. The manager was “Margaret” who had been bad mouthing staff members in his presence. He agreed that it made him feel uncomfortable and indeed he felt threatened.
The plaintiff agreed that whereas others might discuss issues with friends and family, he resorted to his general practitioner. The plaintiff had learnt over the years that if he was struggling with something he needed to find someone to talk to about it. He gave evidence that his general practitioner was the closest person to whom he could talk if there were issues of concern.
Mr McCarthy asked the plaintiff about ongoing issues with the separation from his wife and the stress arising from that situation as recorded in the general practitioner’s notes in March 2021. Further, he was continuing to experience problems with his lower back, consistent with the clinical notes.
The plaintiff was reminded of a consultation with his general practitioner on 30 March in which he reported anxiety and depression in the context of allegations of an employee that he was making sexual advances towards her. The plaintiff agreed that this gave rise to friction at work, and he felt irritated by the fact that unfair allegations were being made against him. He agreed his mood was low and he was lacking motivation. The plaintiff was referred to a consultation on 10 May in which he reported being low and tearful, with periods of anger and a reluctance to go to work. There was a report of flashbacks. The plaintiff conceded that between the time of the accident and May 2021 he did not tell Dr Saroha that he was suffering from nightmares.
The plaintiff was also reminded of a consultation with his general practitioner on 30 May in which he reported a stressful discussion with his employer, having not been paid for the previous few weeks. He felt stressed with poor sleep and appetite.
The plaintiff accepted that in early 2021 he was charged with driving with methamphetamines in his system. He was disqualified from driving for a period of six months from 15 January 2021. As a result, he needed to find alternative transport to work which involved using an Uber, lifts from his ex-partner and buses. It was noted that in May 2021 a workers compensation claim was lodged.
When it was suggested to the plaintiff that it was a combination of stressors in his life unrelated to the accident which led to him leaving work he replied, “I don’t know”. However, the plaintiff later denied that it was for reasons unrelated to the accident that he left his work at the shopping centre.
The plaintiff accepted that in the days following the incident he did not share his feelings with his colleagues in circumstances where he had previously done so.
The plaintiff accepted that he had previously been convicted of a crime of fraud, and had also been convicted of theft offences, although he could not recall if there was more than one.
The plaintiff was questioned on his previous work history by reference to the tax returns that were available. He had attempted a short period of work on a duck farm in about 2023 for a period of approximately 3 to 4 months. However, he accepted he did not disclose the income from this work to his workers compensation insurer. The plaintiff agreed that he had been receiving approximately $980 net per week from the workers compensation insurer for at least two years. He accepted that this was more than he had ever earned since 2015, apart from his employment with the shopping centre. He agreed that he had not made any real attempts to obtain work. He denied that he had ever returned to work despite a note to that effect in clinical records from 2023.
The plaintiff was now living in a small village following issues of affordability; his partner had bought a house in that location. The plaintiff accepted that there may be work opportunities, particularly on farms, in the local area; he had experience and skills in this area of work.
The plaintiff's attention was drawn to a history provided to Dr Allnut that there had been no issues or errors in his work prior to the incident. The plaintiff had contended that his work was solid prior to the incident and that it dropped off following it.
It was suggested to the plaintiff that this was incorrect. He agreed that on three occasions prior to the relevant incident he had failed to open the shopping centre on time, on days when he was filling in for his colleague Brydon. He was unable to recall whether he had explained these failures to his employer by reference to personal matters outside his workplace. However, he did agree that at least on one occasion he explained his failure to open on time by reference to personal problems. On at least one of the occasions the shopping centre was opened 40 minutes late, resulting in complaints from tenants.
The plaintiff agreed there were contractors engaged to perform work such as the painting in the car parks. However, the plaintiff maintained that he was directed to perform this additional work. The plaintiff accepted that his work involved the cleaning of bathrooms and floors, the scrubbing of flooring and checking bins. He denied that part of his role was to ensure the car park was tidy. He accepted that the job title of caretaker described the role of all things pertaining to cleaning. The plaintiff maintained that he was instructed to undertake security work rather than performing this work of his own initiative. He accepted there had been complaints about children riding bikes through the centre and that he was asked to keep an eye out for them. He had been instructed to immediately contact police in the event persons were found using drugs or were unconscious from doing so. He accepted that his role included the opening and closing of doors and the engaging alarms at the end of the day.
The plaintiff denied that when contacted by Necovski he was advised Brydon was in a bad way and was requested to attend a centre to take over his colleagues’ duties. He maintained that he simply received a phone call, was advised that there was a fatality and was asked to attend the shopping centre. Having attended the office he agreed that he thereafter went to the northern dock. The plaintiff, when shown still photos obtained from the CCTV footage, insisting he was wearing a radio at the time. The plaintiff agreed that he was not directed to attend the dock, in circumstances where it was the usual practice to attend the office first.
The plaintiff maintained that he perceived a smell from the deceased person, although he accepted that he was never closer than 10 metres to where the deceased was located. He maintained that he was instructed by Necovski later in the day to check whether the truck had left and to see if the police tape remained in situ. He denied that the only instruction he was given when he attended the dock was to look after Brydon, take him back to the centre and to take over his operations. He maintained, despite it being suggested to the contrary, that Necovski did instruct him to attend the dock during the day. He denied that he attended the dock of his own volition rather than in accordance with any instruction.
The plaintiff agreed that Hurex had never given him any instructions to deal with situations such as that with which he was confronted on the day, nor how to deal with any such emergency. He agreed, consistent with his evidence in chief, that the person to whom he reported at Hurex rarely attended the shopping centre.
He denied that he exaggerated the occurrences of flashbacks or nightmares. He denied that his depressive symptoms were no greater than those experienced before October 2020.
In re-examination the plaintiff’s workers compensation medical certificate received on 13 May 2021 and his most recent certificate were tendered. He indicated that his general practitioner had advised that she did not feel he was sufficiently stable to return to work. There had been ongoing discussions in respect to identifying a suitable psychiatrist whom he could see.

Sonja Necovski

Sonja Necovski was employed as an administrative assistant, and in that role was responsible for overseeing the centre from an operational and business perspective. This included working with the contract cleaners provided by Hurex. Necovski first encountered the plaintiff when he was sent to the shopping centre by Hurex to undertake cleaning work. His duties involved overseeing the car parks, cleaning the bathrooms, ensuring bins were empty and the sweeping of the car parks. There was no difference between the job description of cleaner and caretaker. Necovski made several observations prior to the incident of the plaintiff's poor performance. This included failing to open the shopping centre on time on three occasions, although she was unaware of this occurring after the incident. The plaintiff ordinarily worked six afternoon shifts and one morning shift as a fill in for Brydon.
On the day of the incident Necovski recalled receiving a call from Brydon who advised that there had been an incident on the northern dock and someone had passed away. She immediately attended and observed Brydon to be very distraught. She called the CEO of Lederer and thereafter called the plaintiff. Necovski gave evidence that she requested the plaintiff to attend the shopping centre in circumstances where Brydon was distraught and was in no state to continue working.
Necovski was then shown various parts of the CCTV footage, confirming that the whole body was covered by emergency services prior to the plaintiff attending. Necovski denied requesting the plaintiff to attend the northern dock, although the plaintiff did advise her later in the day that the area was cleared, having been cleaned by the fire brigade. She denied ever directing the plaintiff to attend the northern dock. Necovski maintained that the plaintiff's performance after the incident continued to be poor and indeed deteriorated further.
Necovski was employed to work on a part-time basis from 9:00am to 3:00pm, five days per week. She was the only office-based worker at the shopping centre and Tony Warren, based in Sydney, would visit from time to time or as necessary. Necovski accepted there were no administrative staff present at the shopping centre after 3:00pm, although the shopping centre was open until 9:00pm. Accordingly there was no supervision of cleaning staff after 3:00pm.
She confirmed that the plaintiff would fill in for his colleague Brydon on the Monday morning shift. Brydon would then complete the afternoon shift. Necovski accepted that the accident occurred on a Monday, and it was therefore apparent that the plaintiff was not working the Monday morning shift at that time. She agreed that the plaintiff may not have commenced doing the Monday morning shift until after the accident. Necovski accepted that she knew as of 26 October that the plaintiff was someone with some emotional problems, having at times demonstrated emotional upset whilst talking about issues at home.
Necovski agreed that on the day of the accident Brydon had arrived at the northern dock first and she attended sometime thereafter. It was obvious that Brydon was in a bad way. She denied that Brydon was wanting to go back to the office in the context of being attended to by ambulance staff. However, Necovski agreed that the CCTV footage did not show Brydon being treated for some time whilst on the northern dock.
Necovski agreed, consistent with her curriculum vitae (exhibit M), that she had expertise and training in human resources, return to work, safe work practices as well as a good understanding of medical terminology. Necovski had also previously worked in human resources for a large corporation and had completed courses in Occupational Health & Safety. She accepted that she was well versed in the need to protect employees and others from stressful environments.
Necovski agreed that the scene of the accident was confronting, and she had made the decision that Brydon was not in a fit state to remain at work. Necovski accepted that, given the events occurred some years ago, she may be unable to recall how much of the information was passed on to the plaintiff during the initial telephone call. She agreed that she met the plaintiff on the northern dock having earlier advised him that she was in that area. She recalled that Tony Warren attended sometime later as did Steven Lacey.
She was unaware if CCTV footage was available beyond what had been produced, in particular any footage after 11:00am. Necovski said that a security guard by the name of Paul Dunbeya was present by 2:00pm and that she left later than her normal finishing time. Necovski was aware that the police had taped off the area. However, she steadfastly denied that she wanted the tape removed as it was not a good look for the centre. She denied asking the plaintiff to see if the police tape could be removed, and denied requesting the plaintiff to attend the dock to ascertain what was happening in respect to the Fire Brigade.
Necovski maintained that she inquired of the plaintiff's well-being in the days after the accident. She accepted that on the day of the accident the plaintiff appeared to have been affected by what had occurred, whilst stoic in his assurances to Necovski that he was okay. She had no recollection of the plaintiff advising her that he had attended the doctor the day after the accident or that he had been prescribed medication.

In re-examination Necovski further clarified her evidence in respect to the timing of the plaintiff filling in for Brydon on a Monday. She indicated that Brydon’s days often varied, and that he and the plaintiff would work out between them the days that they would work.

The CCTV footage

The accident is seen to occur at 10:13am. Brydon is seen to arrive at 10:22am with emergency services, including the first ambulance, arriving several minutes later. At 10:26am, Necovski arrives. It is clear from the CCTV that Necovski and Brydon are distressed whilst at the scene. By 10:27am emergency services are seen to be covering the deceased with a large white sheet or blanket. At 10:32am fire brigade officers are seen to be erecting a tarpaulin to further shield the scene from the adjoining car park. At 10:34am, one of the two ambulances moves forward to partially block the view of the deceased. However, it is apparent that the body by this time is covered with the white sheet or blanket. During this period Necovski is seen to be on the phone whilst walking around the dock area. Necovski thereafter remains absent for a period whilst Brydon is standing near the ambulance conversing with ambulance officers. The ambulance vehicle effectively blocks Brydon's view of the deceased.
At 10:55am, Necovski comes into view accompanied by the plaintiff. She is seen to point in the direction of Brydon following which the plaintiff is seen to put his arm around Brydon, apparently to comfort him. The plaintiff, with his arm around Brydon, walks towards the camera and in the opposite direction to the scene of the accident before it appears he is beckoned by police. The plaintiff, still in the company of Brydon, then turns in the direction of police where there is a brief conversation. The plaintiff then walks with Brydon into the underground car park. It is apparent that the first time the plaintiff has any view of the covered body of the deceased is when conversing with police and thereafter whilst walking towards the underground car park.

Findings of fact

The plaintiff commenced employment with Hurex in June 2020 and was immediately placed with Lederer at the shopping centre which it occupied. Lederer was responsible for the care, management, and control of the shopping centre. The plaintiff's daily duties were directed and supervised by Necovski, who was responsible for the overseeing of the shopping centre from an operational and business perspective.
I find that at the time of commencing employment with Hurex and performing cleaning duties for Lederer he was given no instruction, direction, or advice as to the manner in which he was to deal with any particular medical emergency or catastrophic event that might occur whilst performing his duties at the shopping centre.
The circumstances of the plaintiff's employment are in general terms, not in issue. There was evidence that the plaintiff's duties extended beyond that ordinarily performed by a cleaner of a shopping centre. Whilst it was suggested that this involved “security" work, from the plaintiff's evidence it was limited to requesting intoxicated persons leave the shopping centre or deterring children from riding bikes contrary to the shopping centre policy. In respect to the drug use in the toilets, it appeared to be limited to contacting the police if such issues arose. I accept the plaintiff was performing these additional duties not ordinarily expected of a cleaner in a shopping centre.
The plaintiff ordinarily worked the afternoon shift commencing at 2:00pm and finishing at approximately 10:00pm. Whilst working this shift the plaintiff was responsible for closing and securing the shopping centre. The plaintiff's colleague Brydon ordinarily worked the morning shift commencing at 6:00am until 2:00pm. The plaintiff from time to time worked the morning shift which required the opening of the shopping centre to enable access by workers and patrons of the shopping centre.
I find that on several occasions prior to 26 October 2020, the plaintiff failed to open the shopping centre on time at the commencement of his morning shift. On at least one of these occasions the plaintiff explained his failure as attributable to personal issues. Further, I am satisfied that prior to 26 October the plaintiff had shared with his colleagues, including Necovski, that there were issues at home and demonstrated as emotionally upset when doing so.
I find that the supervision of the plaintiff by his employer was minimal, comprising of occasional attendances at the shopping centre by his supervisor Stephen Jung, as described in the statement of Jocelyn Kong, traversed later in this judgment.
The substantial factual contest related to the events on the day of the accident including the nature and extent of directions issued by Necovski to the plaintiff.
It was apparent through the course of the plaintiff's evidence that he had difficulties recollecting some of the detail relating to the day in question. Senior Counsel for the plaintiff conceded in closing submissions that the plaintiff demonstrated problems with his memory and was plainly unreliable in some respects. The plaintiff at times hesitated whilst giving evidence, in part due to his emotional state, to which reference has already been made. However, there were other occasions where the plaintiff hesitated and appeared unsure. It is unsurprising that the plaintiff experienced some difficulties in recalling the detail of the day given the events which unfolded, and his reaction to them, in part demonstrated by his presentation to his general practitioner the following day.
Necovski gave evidence in a straightforward fashion, answering questions asked of her in chief and in cross examination in a direct manner. Necovski did not hesitate in acknowledging matters which may have arguably been against her interests, or that of her employer. However, on the central factual contest as to whether she issued the plaintiff with directions to return to the scene of the incident her denials were direct and assertive, although not in a way that could be considered defensive. Necovski presented as a credible witness.
At approximately 10:13am, the victim suffered fatal injuries as a result of a collision with a semitrailer in the northern dock area of the shopping centre. Shortly thereafter Brydon arrived at the scene of the accident and was able to observe the aftermath of the accident including the deceased’s’ body. Several emergency service vehicles arrived thereafter, and Necovski arrived at around the same time.
I find that Necovski subsequently telephoned the plaintiff, who would otherwise have been rostered for the afternoon shift, to attend the shopping centre. I find that the plaintiff was advised in that telephone call that there had been a fatality at the shopping centre and that Brydon was distressed and consequently was in no state to complete his shift.
I am satisfied the plaintiff initially attended the shopping centre office, and finding no one present, retrieved his radio and keys. He thereafter called Necovski who advised that she was at the northern dock. In response, he immediately attended the northern dock where he was met by Necovski and advised as to what occurred. I find that Necovski then directed the plaintiff to Brydon. The plaintiff immediately walked to Brydon and attempted to console him.
The plaintiff provided little detail as to what he observed during his first attendance at the scene of the accident. There is the CCTV footage upon which the plaintiff relied. Whilst fact-finding based on photographs or other imagery must be approached with some caution, particularly where the relevant facts are otherwise unsupported (Blacktown City Council v Hocking [2008] NSWCA 144 at [149], [166]-[173]; Hadid v State of New South Wales [2024] NSWCA 73 at [10]), the footage is sufficiently clear to enable findings as to the scene with which the plaintiff was confronted whilst at the northern dock area.
The plaintiff relies on histories provided to his general practitioner and treating psychologist as to the truth of what he observed; however, those histories must be considered in the context of the other objective evidence available, particularly the CCTV footage.
I find that at the time of the plaintiff's attendance at the northern dock there were several ambulances and a police vehicle. The truck involved in the original accident was still in situ as was the victim, whose body had been covered with a white sheet or tarp. I find that at the time the plaintiff first consoled the distressed Brydon, the truck was visible to the plaintiff, but the victim's body was not. However, as the plaintiff was walking Brydon away from the scene of the accident he was summoned by police, and walked in their direction, still in the company of Brydon. A brief conversation occurred. I am satisfied that the plaintiff's position was such that the truck and covered body of the victim was within his line of sight. I accept the plaintiff’s evidence that he sensed a smell emanating from the victim, whether real or imagined.
The plaintiff subsequently walked with Brydon towards the underground car park and returned to the office. The plaintiff thereafter performed his cleaning duties.
I accept the evidence of the plaintiff that whilst in the loading dock area with Brydon he was confused, upset, and felt sick. I accept the plaintiff's evidence that at this time his stomach was “turning, shaking" and that he was attempting to “keep it together" to be an effective support for Brydon. I accept the plaintiff's evidence that for the balance of that day he felt numb, emotional, and upset, necessitating his return to the office on several occasions where he sat alone and cried. This evidence was largely unchallenged. When giving this evidence the plaintiff was emotional and struggling to maintain his composure. His demeanour was consistent with genuinely recalling the trauma of the day and his emotional/physical response to it.
I accept the evidence of Necovski that the plaintiff was not directed by her to return to the scene of the accident for any reason, and to the extent the plaintiff did so, it was of his own initiative and absent of any direction from Necovski.

The medical evidence

The clinical notes from Hinkler Family Practice record the plaintiff suffering various psychological conditions, including anxiety and claustrophobia between 2005 and 2008, involving an inpatient stay in the Child and Youth Mental Health Unit in Bundaberg towards the end of that period.
The plaintiff was also prescribed medication during this period. During the impatient stay in July 2007, the plaintiff provided a history of feeling depressed when he was 17 or 18 and had difficulties holding down a job with some suicidal ideations. This history was provided when the plaintiff was in his mid-30s. There was also a history of the plaintiff being the victim of sexual abuse by an uncle at the age of 12. The records from West Bundaberg Medical Centre document some ongoing psychological issues between 2009 and 2011 for which he was prescribed medication.
It appears the plaintiff commenced attending Dr Saroha at Corrimal Family Medical Centre following his move to the Illawarra. The clinical records, consistent with the cross examination of the plaintiff, demonstrate that he was reporting to Dr Saroha in August 2019 anxiety and depression, in the context of domestic violence allegations necessitating a move from Canberra.
The clinical notes for the remainder of 2009 demonstrate the plaintiff suffering fluctuating psychological symptoms requiring prescription medication. The quantity of medication prescribed for these symptoms varied, no doubt dependent upon the plaintiff's presentation and the general practitioner’s opinion based upon that presentation. In 2020, the plaintiff continued to present to Dr Saroha with fluctuating psychological symptoms for which he was prescribed medication. In the last attendance before the incident (16 October 2020), the plaintiff reported that he was working long hours with no break. Whilst there were reported symptoms of tiredness, Dr Saroha noted that there was “no hopelessness or pessimism or SI (suicidal ideations)". The plaintiff sounded “low" and it was confirmed that he should continue the same dosage of medication.
The plaintiff returned to Dr Saroha the day after the accident in which he reported anxiety and depression and being “distressed". The clinical note further records the following: –

“witnessed an accident yesterday
in the car park
a (sic) old men (sic) getting crushed by a truck
tearful
low
poor sleep
anxious +++”

It is significant to note that the plaintiff was prescribed diazepam, being a medication not previously prescribed by Dr Saroha. The plaintiff returned to Dr Saroha approximately two weeks later noting that he remained stressed with poor sleep. He reported being anxious about work and family, with his 15-year-old son being more withdrawn. Whilst the plaintiff reported being anxious, he denied any suicidal ideations and there was no self-neglect, paranoia nor agitation. However, the plaintiff presented “mood – low – affect – flat" with good insight. The plaintiff continued to present to Dr Saroha on a further two occasions in November 2020 with reports that work was stressful with no break, and he was suffering from poor sleep and tiredness. There were further consultations in December, January and March 2021. It must be acknowledged that these consultations refer to ongoing psychological conditions arising from unrelated circumstances including his domestic situation and issues at work including an allegation that he made sexual advances.
On 10 May 2021 the plaintiff reported being low and tearful with periods of anger and reluctance to attend work. The plaintiff reported experiencing flashbacks. The plaintiff returned to Dr Saroha on 13 May 2021 reporting ongoing flashbacks with a lack of motivation and self-esteem. He reported being anxious and remained low.
It is significant that on the same day, Dr Saroha completed a medical certificate for workers compensation purposes diagnosing the plaintiff as suffering from anxiety and depression related to the incident on 26 October 2020. The certificate noted that the injury was related to work in that the plaintiff witnessed a fatal accident where an elderly person in a car park was run over by a truck. Dr Saroha, when asked to provide details of any pre-existing factors which may be relevant to the condition, said the following: –

“He has ongoing anxiety and low mood but since this incident, he has been getting flashbacks and also developed avoidance behaviour".

Dr Saroha certified the plaintiff as having no capacity for any employment from the date of certificate until further reviewed.
It appears that Dr Saroha was sufficiently concerned with the plaintiff's presentation around this time that he referred the plaintiff to a psychiatrist (Dr Panesar) and a psychologist (Rodney Ward).
When reviewed by Dr Panesar on 11 June 2021 the plaintiff reported severe PTSD symptoms including flashbacks and nightmares, avoidance, numbness, anxiety and panic attacks, hyperarousal, lack of concentration, poor memory, angry outbursts, and exaggerated startle response. The severity of these symptoms impacted on his mood to the extent that he became depressed. He had no appetite, had lost 10 kg in weight within three months, and had intermittent thoughts of worthlessness.
The trauma arose from being involved in an accident at work, incorrectly recorded as occurring in November the previous year. The plaintiff reported that he was called out to the dock area where an elderly person had been crushed under the truck’s front wheels. He reported to have seen the crushed deceased body parts. He further reported that he used to see the deceased person regularly when shopping at the supermarket in the shopping centre. The plaintiff reported that the effect of the incident had resulted in a lack of concentration and memory, and he had started to make mistakes at work and was unable to focus. This was on a background of a history of mild depression some three years previous for which he was prescribed medication in the context of domestic difficulties.
Dr Panesar diagnosed the plaintiff as presenting with “complex PTSD in the context of trauma work with secondary depression”. This was on the background of mild depressive symptoms in the past in the context of a relationship breakdown and loss of farm.
Rodney Ward also saw the plaintiff. The clinical notes from the first consultation reported a history of the plaintiff being called into the shopping centre in the context of someone having been “squashed" in the back dock. The plaintiff told Mr Ward that when he arrived his colleague was standing there crying and that the victim that had been hit by a semi-trailer was a regular customer in his sixties. The clinical entry referred to a “smell" and “horrible image".
The plaintiff continued to be treated by Mr Ward in 2022 and in the various consultations with the psychologist the plaintiff repeatedly referred to the scene of the accident, including everyone being “emotional..frantic”. The plaintiff also made repeated references to seeing the body parts and the smell.
In a report dated 2 November 2022, Mr Ward considered the plaintiff was showing signs and symptoms of post-traumatic stress disorder because of the initial assessment and subsequent sessions. He noted that the relevant criteria were satisfied in that the plaintiff reported intrusive symptoms such as intrusive thoughts, memories, dreams, nightmares, and images. He also reported symptoms consistent with avoidance of stimuli associated with the trauma such as avoiding the shopping centre. He further reported symptoms including being cautious and panicked around trucks when driving. He also reported arousal and reactivity associated with traumatic events such as sleep disturbance, hypervigilance, exaggerated startle response, irritability, and problems with concentration.
The plaintiff commenced seeing Dr Rachel Christmas in Temora following his move to that location. Dr Christmas provided a report dated 5 October 2023 in which she noted that her first appointment with the plaintiff related to his mental health in the context of the completion of WorkCover certificates for WorkCover purposes. Dr Christmas recorded a history that the plaintiff was suffering flashbacks, significant anxiety and psychological distress related to the incidences some two to three years prior. The plaintiff had moved to Temora to avoid familiar surrounds which would exacerbate his anxiety. Dr Christmas had six consultations with the plaintiff relating to this condition in which he reported fluctuating anxiety, suicidal ideation (when stressors would mount and trigger anxieties) and nightmares. He avoided crowds and people he did not know well and described difficulties recalling events and timelines. There were also difficulties with concentration.
Dr Christmas provided the plaintiff with psychological support, and he was referred to a mental health care nurse for psychotherapy. Consideration was also given to a referral to a psychologist. Dr Christmas believed the plaintiff suffered from post-traumatic stress disorder directly as a result of the incident at work in 2020. It was in this context that the plaintiff was suffering from anxiety, poor sleep, and poor concentration with suicidal ideations at times. Further, he was suffering nightmares and was unable to work due to fluctuations in mood and ability to concentrate which were unpredictable.
The plaintiff was also being treated by Candour Hu, psychologist who provided a report dated 15 January 2024. Noting Lederer's contention that all the expert opinion, including that of Mr Hu, should be rejected, it is significant to note that in the report the psychologist recorded that he had three sessions with the plaintiff. Whilst he had read the medical report of Dr Christmas, he had “not considered any other additional information". He further observed that the plaintiff's previous psychological history and report of Dr Allnut “were not deemed relevant for my opinion and role as the treating psychologist". Mr Hu further observed that it was unclear what level of exposure the plaintiff had to the accident site and the deceased on the day. This was in the context of the plaintiff being unable to remember specific details of the scene which potentially could be interpreted as dissociative amnesia. However, as the plaintiff was physically present in the management of the incident, he met the criteria for “extreme exposure to aversive details".

The plaintiff reported having recurring nightmares of being trapped in the shopping centre. The plaintiff was mostly homebound to avoid triggers such as trucks, shopping centres and loud noises. He displayed a persistent negative mood and described being easily irritable, getting upset over minor things such as sirens. He had difficulty sleeping due to recurrent nightmares. The incident had caused significant stress such that the plaintiff struggled to function on a day-to-day basis. Dr Hu believed the plaintiff met the criteria for PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).
On 10 May 2022 the plaintiff was reviewed by Dr Geoff Bertucen at the request of his solicitors for the purposes of a medicolegal consult. The plaintiff told Dr Bertucen that he was requested by centre management to attend the shopping centre in circumstances where there had been a fatality. He attended the dock where he observed his colleague in a state of tearful distress and that Necovski was also looking very distressed although not crying. The plaintiff claimed that he looked towards the parked semitrailer and saw the victim. Whilst he initially approached with the intention of performing CPR, he was suddenly horrified by the man's fatal injuries. The plaintiff told Dr Bertucen that he was instructed sometime later to return to the scene of the accident by his supervisor. The plaintiff reported that his mental state declined progressively over the ensuing months, although he continued to work so as to "get on with his life". However, in 2021 he consulted his general practitioner with low mood, anxiety, panic episodes, fragmented concentration, poor memory and angry moods. His sleep quality was declining, and he was beginning to experience nightmares of the accident as well as intrusive daytime images recollections. The past psychiatric history was noted, although the plaintiff claimed that his mood had stabilised, and his antidepressant medication had reduced by May 2020.
Dr Bertucen referred to a report of Dr Judith Clark, medicolegal psychiatrist who diagnosed post-traumatic stress disorder. Dr Bertucen acknowledged that the plaintiff’s pre-existing and fluctuating major depressive symptoms led to a vulnerability to mental illness. He observed that if the plaintiff's “account of the subject incident" was correct his exposure to the disfigured deceased victim would induce symptoms of post-traumatic stress disorder.
The plaintiff was reviewed by Dr Stephen Allnutt, psychiatrist at the request of his solicitors in August 2023. The plaintiff provided a history of working at the shopping centre for varying hours and that there were no concerns about his performance, pace, or attendance. The plaintiff referred to several issues in his workplace including an alleged complaint of a staff member that the plaintiff acted towards her in an unacceptable manner.
The plaintiff admitted that the time of the accident he was taking antidepressant medication and was being regularly reviewed by his general practitioner. Dr Allnutt noted that the plaintiff's recollection for dates and events was poor. It is apparent that Dr Allnutt had available the plaintiff's clinical records from Hinkler and West Bundaberg. Dr Allnutt referred to various psychological issues in 2019 and in the period immediately prior to the incident. The report revealed a detailed analysis by the psychiatrist of the various clinical records.
The plaintiff reported that he had received a call from management to attend the shopping centre in the context of there having been a fatality. Dr Allnutt observed that when the plaintiff was providing this history he became emotional. The plaintiff ultimately went to the back dock and was directed to a work colleague who was clearly upset, so much so that he was unable to speak. The plaintiff told Dr Allnutt that he looked across to the truck, and when asked what he saw he said, “I can see the area of the truck, I can't see the pictures". At this point the plaintiff broke down crying. He then referred to removing his colleague away from the scene. Whilst he was directed to return to the scene of the accident, he could not recall precisely what he saw.
The plaintiff told Dr Allnutt that he had continued to work in the months after the accident before reaching a stage where he was unable to cope. Every time he attended work he would throw up and cry. He was feeling worse over time, although he would try to “fight through it". However, by the time that he finished work he was having nightmares which had started within days of the injury. By the time he left work his performance was “sloppy", and he was forgetful in respect to the tasks he was required to perform.
The plaintiff reported ongoing symptoms including low mood and regular nightmares. The nightmares were being stuck in a shopping centre where the only door was one leading to the truck. This is consistent with the nightmares reported by the plaintiff during his evidence. His appetite was poor and energy levels diminished. Similarly, his motivation was poor, and he tended to remain at home. There were difficulties with concentration and memory. He had poor self-esteem, was indecisive and found no enjoyment in activities. The plaintiff also reported panic episodes if a truck was to pass him. He experienced avoidance in respect to shopping centres and constantly felt something bad was going to happen. He lacked motivation in respect to self-care. He avoided driving a motor vehicle due to his dislike and panic around heavy vehicles.
Following a detailed review of all the relevant documentary evidence and medicolegal evidence, Dr Allnutt noted that the plaintiff endorsed a number of post-traumatic stress, depressive and anxiety symptoms. He believed the plaintiff was suffering a major depressive episode and a trauma related condition “relevantly including chronic post-traumatic stress disorder".
Dr Allnutt said the following: –

"I acknowledge that factual determinations are a matter for the adjudicator. Based on his account – that he learnt of a traumatic event that involved a colleague, he does not particularly recall seeing the damage caused to the deceased, but he was at the site, but he knew what happened and his poor recollection can be in a context of a trauma and stressor related condition can be attributed to an inability to remember important aspects of the traumatic event which is in and of itself a symptom of post-traumatic stress disorder (post-traumatic amnesia). In my view, given that he was involved an (sic) exposed to an actual death, that he witnessed the circumstances of that death, that he learnt of the traumatic events, that he was repeatedly exposed to that event by having to go up on two occasions, there are reasonable grounds to argue that on balance, he meets criteria for Criterion A for post-traumatic stress disorder as defined by DSM5 and on this basis I would diagnose him with a chronic post-traumatic stress disorder. The differential diagnosis could include an adjustment disorder with a depressed and anxious mood however, I would add that if criterion A is rejected, he manifests a full quotient of symptoms found in people with chronic post-traumatic stress disorder”.

The plaintiff was assessed by Dr Nabil Malik psychiatrist at the request of Hurex in August 2022. The plaintiff told Dr Malik that he was requested to attend work in the context of there having been a fatality. It was observed that the plaintiff was emotional and distressed talking about the incident. Having attended the shopping centre, he found his colleagues at the back dock. He had been told by his supervisor that there was a deceased gentleman near a parked semitrailer. The plaintiff claimed to have been exposed to the victim's injury. He said that at the time everyone was emotional and some of the details of the incident were blurred. He consoled his colleagues and sometime later was asked to return to the scene to clean the human remains. However, this had already been completed by the first responders.
The plaintiff reported that he continued to work despite the decline in his mental health, although he found himself irritable and angry. He reported feeling on edge and developing flashbacks and nightmares. His mood was low with changes in sleep and appetite. His personality was changing, and he was unable to concentrate. The plaintiff reported being referred by his general practitioner to a psychologist and a psychiatrist. Whilst he was unable to recall when he stopped working, it was noted that this was due to his worsening mental health. The plaintiff reported that he previously suffered depressive and anxiety symptoms and was suffering such symptoms in 2019 for which he took medication for a short period. The plaintiff reported to Dr Malik that he experienced ongoing depressive and anxiety symptoms, with changes in sleep and appetite. There were days when he felt okay, although there were other days when he was “really bad”. He spoke of nightmares and flashbacks and could still “smell the person and blood". He was jumpy and irritable and unable to enjoy any activities, spending most of his time inside. He reported poor memory and difficulties with concentration.
Dr Malik was of the opinion that the history provided during the assessment and the mental state examination fulfilled the diagnostic criteria for post-traumatic stress disorder and major depressive disorder. Dr Malik said the following: –

"In my professional opinion, on the balance of probabilities I believe Mr Hodson's psychological injury i.e PTSD and major depressive disorder are predominantly caused by work-related incident (sic). Mr Hodson was exposed to a traumatic event which led to a decline in his mental health, and he developed symptoms of reliving of incident (sic) in the form of nightmares and flashbacks, anxiety, low mood with significant changes in his sleep and appetite causing distress and impairment".

Dr Malik further reviewed the plaintiff on 15 August 2023, reporting that he was experiencing difficulties with sleep and was on a “short fuse". He felt low for most days and was socially isolating himself. He lacked motivation and energy, although there were days when he was able to deal with some work in the back yard. The plaintiff reported that his flashbacks were not as bad as previous, although the nightmares were the same. He continued to relive the incident, and felt jumpy and nervous, although there were less triggers given he had relocated.
Dr Malik confirmed the previous diagnosis of post-traumatic stress disorder and major depressive disorder.
Drs Allnutt and Malik participated in an expert conclave, resulting in a joint report dated 13 February 2024. The psychiatrists agreed on a diagnosis of major depressive disorder and chronic post-traumatic stress disorder whilst observing the following: –

"Both doctors agree that he had a pre-existing diagnosable psychiatric condition in that he had a recurrent depressive disorder with associated anxiety. By the time of the index injury, while he might have had residual symptoms, he was getting treatment and appeared to be functioning adequately with limited relatively insignificant symptoms and no mental impairment.
The index injury was significant, in both their views it met the DSM – 5 criterion A, triggering the onset of initially an acute post-traumatic stress, developing into a chronic post-traumatic stress disorder, and a recurrence of a major depressive episode and anxiety. They both agree that the index injury has made a substantial contribution to his current mental state. These symptoms have caused significant impairment in all the important aspects of his life, including vocational capacity."

Dr Allnutt added the following in the joint report: –

"Mr Hodson's experience of flashbacks, nightmares, and severe distress when reminded of the incident are indicative of PTSD. He reported a deterioration in his mental health immediately following the incident, with ongoing issues such as reliving the traumatic event, feeling jumpy, nervous, and experiencing less persistent flashbacks."

Findings as to the plaintiff's psychiatric condition

Lederer contended that the expert opinions of Dr Saroha, Dr Christmas, Dr Panesar, Dr Bertucen, Dr Allnutt, Dr Malik, Rodney Ward and Candour Hu that the plaintiff suffers from post-traumatic stress disorder should be rejected, in circumstances where not one of the experts gave evidence, having not been required for cross examination by Lederer. Hurex makes no such submission. The thrust of Lederer’s submission is that the opinions of each of the experts are premised upon an incorrect history as to the extent of the plaintiff's exposure to the aftermath of the accident, and more particularly, the plaintiff's alleged exposure to the victim's injuries. Further, that the plaintiff had not provided a complete picture of his psychiatric history.
I do not accept Lederer's submission for the following reasons.
First, the submission ignores the fact that the opinion of each of the experts was likely to have been reached after considering a combination of factors, of which the history provided by the plaintiff as to his psychiatric history and experiences on the day of the accident were only two. This would necessarily include any mental state examination, the plaintiff's reported symptoms, and the extent to which those symptoms were consistent with a diagnosis of post-traumatic stress disorder. Indeed, many of the experts observed that the plaintiff's reported symptoms were consistent with a diagnosis of post-traumatic stress disorder.
Secondly, it follows that the Court is being asked to reject the opinion of every expert in circumstances where they have not given evidence as to the weight attached to the multiplicity of factors leading to their respective opinions. In the absence of such evidence the Court is not able to assess the relative weight given to such factors.
Thirdly, the plaintiff was not challenged as to the symptoms reported by him to the various medical experts other than to suggest that he had exaggerated “the extent" to which he suffered from flashbacks, nightmares, and general sleep disturbance. It was not suggested to the plaintiff that his reporting to each of the experts of the multiplicity of symptoms, consistent with a diagnosis of post-traumatic stress disorder, were untrue, or for that matter, that he was not experiencing such symptoms.
Fourthly, in considering the reliability or otherwise of the recorded accounts to the various health professionals it is necessary to take into account the observations of Basten JA in Mason v Demasi [2009] NSWCA 227, citing Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, that such histories need to be approached with caution given the various factors identified by his Honour at [2].
In any event, the opinions of each expert must be considered in context.
In the first consultation with Dr Saroha, one day after the incident, it was recorded that the plaintiff had “witnessed an accident yesterday". The plaintiff has never contended that he witnessed the accident. Dr Saroha’s diagnosis was in the context of being the plaintiff's treating clinician, regularly reviewing him before and after the accident. Dr Saroha was in the unique position of being aware of the plaintiff’s symptoms as reported to him and having observed his presentation in a clinical setting throughout this period.
Dr Christmas diagnosed the plaintiff with post-traumatic stress disorder after numerous consultations with the plaintiff as his general practitioner. There is no suggestion in his report that he relied upon any history of the plaintiff seeing the victim's injuries. The history records a work-related incident some two to three years prior as a consequence of which he suffered from post-traumatic stress disorder. It is readily apparent from a reading of the report that it was the plaintiff's presentation and reporting of symptoms which led to such a diagnosis.
Mr Hu, in diagnosing post-traumatic stress disorder, expressly disavowed any reliance upon additional information apart from the report of Dr Christmas. Further, Mr Hu expressly acknowledged that the level of exposure the plaintiff had to the accident site and the deceased was unclear. Despite this, Mr Hu was prepared to confirm the diagnosis given the plaintiff's physical presence at the scene.
Dr Allnutt similarly noted that the plaintiff was unable to identify what he saw apart from “the area of the truck". Dr Allnut’s diagnosis of post-traumatic stress disorder is not premised upon any explicit history that the plaintiff saw the injuries suffered by the deceased. Rather, the diagnosis is based upon a combination of facts including the plaintiff’s exposure to an actual death, witnessing its circumstances, learning of the traumatic events and exposure to the event on several occasions.
As Senior Counsel for the plaintiff observed, it is inherently unlikely that the subsequent conclave between Drs Allnutt and Malik, resulting in the joint report, would be completed in a vacuum, where their respective reports would not have been considered. This must have included a consideration of Dr Allnut’s report when reaching agreement that the circumstances of the incident were significant, triggering the onset of acute post-traumatic stress, developing into a chronic post-traumatic stress disorder, and the recurrence of a major episode and anxiety. Expressing this opinion, the experts jointly agreed that the plaintiff had a pre-existing diagnosable psychiatric condition. It was further acknowledged by the experts that by the time of the alleged injury the plaintiff might have been experiencing residual symptoms for which he was receiving treatment, although appeared to be functioning adequately, with limited insignificant symptoms and no mental impairment. This joint opinion must be considered in the context of Dr Allnutts’ primary report in which care was taken to review the plaintiff's pre-accident medical history.
To the extent necessary, a finding of post-traumatic stress disorder arising from the plaintiff's exposure to the accident site is supported by other evidence.
The plaintiff gave unchallenged evidence that at the time of his first attendance on the scene he felt sick, his stomach was “turning, shaking" and he was attempting to “keep it together" to support his colleague. The plaintiff gave unchallenged evidence that throughout the course of the day he needed time alone to cry. He reported to his general practitioner the very next day significant feelings of anxiousness and helplessness, as well as distressing thoughts.
It was not suggested to the plaintiff that his evidence of flashbacks and nightmares, clearly related to the accident, involving being trapped in the entrance to the loading dock area, were untrue. It was not suggested to the plaintiff that the various symptoms reported to each of the medical experts, consistent with the diagnosis of PTSD, were untrue. Rather it was suggested to the plaintiff that he was exaggerating the extent of such symptoms. To the extent that such suggestions amounted to an attack on the plaintiff's credit, this must be considered in the context of objective facts consistent with the plaintiff being genuine in his reports of disability and impairment. To the plaintiff’s credit, he continued to work until May the following year when he was certified by Dr Saroha as unfit to continue to perform his duties. Further, the plaintiff's evidence that his work performance deteriorated after the accident because of his emotional deterioration was corroborated by Necovski.
In all the circumstances, I am satisfied on the balance of probabilities that the plaintiff suffers from a recognised psychiatric illness in the form of post-traumatic stress disorder and major depressive disorder arising from the plaintiff's exposure to the scene of the accident, in accordance with the findings of fact as made.

[207] First, s 32 defines or controls what otherwise would be a duty of care arising out of the common law for damages for mental harm resulting from negligence. The provision is cast negatively. The statutory condition for the establishment of a duty of care identified by s 32(1) is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: Wicks at [22].
[208] Secondly, whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be determined with regard to “the circumstances of the case”. Some such kinds of circumstance are identified in s 32(2), but s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances: Wicks at [23].
[209] Thirdly, s 32 is to be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by the High Court in Tame. Consistent with Tame, s 32 assumes that foreseeability is the central determinant of the existence of any duty of care. Further, and consistent with Tame, circumstances of a “shocking event” and the existence and nature of any connection between perpetrator and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care: Wicks at [26].”

His Honour’s judgment has been cited with approval in Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321: per Fagan J at [39].
The inquiry under s 32 is not whether the relevant circumstances of the case were reasonably foreseeable, but rather “given those circumstances a person of “normal fortitude" might suffer psychiatric illness": Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354, per Basten JA at [92] (with whom McCallum JA and Emmett JA agreed).
As Basten J observed in Optus Administration at [59]: –

“[59] The requirement that a reasonable person ought to have foreseen that a person of normal fortitude (that is mental or emotional fortitude), might suffer a psychiatric illness if reasonable care were not taken is an important factor to be considered. That is because different circumstances will give rise to different possible levels of mental harm in persons of normal fortitude: the nature of the possible consequences of the defendant’s actions will therefore be important.”

I do not accept Lederer's submission that expert evidence is required to determine the s 32 issue. The submission is not supported by a plain reading of the section and is contrary to several authorities: Capar at [94] – [95] per Basten JA; Karpik v Carnival PLC (The Ruby Princess) (IT) [2023] FCA 1280 per Stewart J at [576].
It is also important to note that the Court need only be satisfied that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken.
The evidence establishes that there was a pre-existing relationship between the plaintiff and the defendant in that the plaintiff had been employed by the defendant for approximately four months when the accident occurred (s 32(2)(d)). The relationship was such that the plaintiff was acquainted with his work colleague Brydon with whom he had arrangements in place for the swapping of shifts as mutually agreed. In the context of that pre-existing relationship, the plaintiff conceded in cross-examination that he would share with other employees from time-to-time personal issues including difficulties with his stepson and marital problems. Indeed, the plaintiff on occasions had proffered his personal problems as an excuse for his failure to open the shopping centre on time. Necovski conceded that at the time of the incident she was aware of the plaintiff being “a man with some emotional problems" in circumstances where he would talk about such matters and present as being emotionally upset. In this context, Necovski, an employee of Lederer, was aware of the potential of the plaintiff of being emotionally fragile.
Whilst the evidence is insufficient to establish that Lederer knew or ought to have known that the plaintiff had an underlying disposition to react adversely if he were to witness a traumatic incident, it did demonstrate that the plaintiff was someone who was subject to emotional fragility (s 32(4)).
I am satisfied that given the scene confronting the plaintiff whilst present in the northern dock area, and the relationship between the plaintiff and the defendant, including the potential of the plaintiff to be emotionally fragile, it was reasonably foreseeable, on the part of Lederer, that a person of normal fortitude might suffer a recognised psychiatric illness. Accordingly, the defendant's duty of care is not excluded by s 32 of the CLA.

Breach of duty

Section 5B and 5C of the CLA provides as follows:

“5B   General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)  the risk was not insignificant, and
(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)  the probability that the harm would occur if care were not taken,
(b)  the likely seriousness of the harm,
(c)  the burden of taking precautions to avoid the risk of harm,
(d)  the social utility of the activity that creates the risk of harm.
5C   Other principles
In proceedings relating to liability for negligence—
(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

There is no issue that Lederer, as host employer, owed the plaintiff a duty of care to avoid a foreseeable risk of harm.
It is necessary to firstly identify the relevant risk of harm. The plaintiff alleges that the risk of harm was a risk of a person suffering psychological injury if exposed to the aftermath of the fatal accident including:

The presence of emergency vehicles;

The truck involved in the fatal accident remaining at the scene with the covered body adjacent to the truck’s wheels; and

A distressed colleague known to the plaintiff.

For the reasons already given, the risk was foreseeable in that it was one which the defendant knew or ought to have known. The risk of a person suffering a psychological injury from being exposed to the aftermath was not insignificant.
The precaution which the plaintiff alleges the defendant ought to have taken was to prevent the plaintiff being exposed to the aftermath of the accident. The precaution would have involved Necovski, when requiring the plaintiff to attend the shopping centre on the morning of the incident, directing him not to attend the northern dock, being the scene of the fatality. Further, he ought to have been directed to remain at the shopping centre office, being the location where the plaintiff ordinarily commenced his shift. Further the plaintiff ought to have been directed not to attend the scene of the fatality during his shift.
Having attended the northern dock, the plaintiff should not have been directed towards the scene of the accident. The CCTV footage shows Necovski point the plaintiff in the direction of Brydon before the plaintiff walks directly to his colleague. He is then seen to walk Brydon away from the scene of the accident via the underground car park, after speaking to the police.
The issue as to what a reasonable person would have done in response to the risk of harm must be considered prospectively: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [31] and [40]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [51].
In determining whether a reasonable person in Lederer’s position would have taken precautions against the risk of harm, s 5B (2) provides that the court is to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm and the burden of taking precautions to avoid the risk of harm.
I am satisfied that there was a reasonable probability that a person would suffer psychological injury if exposed to the scene of the aftermath of the fatal accident, that the risk of such an injury was not insignificant and that the precaution the defendant ought to have taken was relatively simple in that it required no more than a direction to the plaintiff that he was not to attend the scene of the fatality.
In the circumstances, I am satisfied that Lederer breached the duty of care it owed to the plaintiff.

Causation

Section 5D of the CLA provides as follows:

“5D   General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

Section 5D(1)(a) is a statutory statement of the “but for” test of causation: Strong v Woolworths Ltd [2012] HCA 5; (2012) CLR 183. It requires proof that the defendant’s negligence was a necessary condition of the occurrence of harm, being a condition that must be present for the occurrence of harm: Strong at [20]. It is not a task which requires value or policy judgments: Wallace v Kam [2012] NSWCA 82 at [4] per Allsop P (as his Honour then was). These latter considerations fall within the scope of liability analysis required by s. 5D(1)(b).
Self-evidently, but for the plaintiff's attendance at the scene of the fatality, he would not have suffered the psychological condition as diagnosed by the various experts. It is appropriate for the scope of Lederer’s liability to extend to the harm caused to the plaintiff. No submission was made to the contrary.
I am satisfied that liability has been established against Lederer.

Apportionment as between the first and second defendant

Lederer was the plaintiff's host employer from the commencement of his employment with Hurex. Lederer was responsible for the plaintiff's initial training as well as his daily supervision. At all times he was performing his duties under the direction of employees of Lederer, who progressively expanded the duties he performed.
The plaintiff's attendance at the scene of the accident was as a direct result of a direction issued by an employee of Lederer, who also directed the plaintiff in the direction of his colleague who was also an employee of Lederer.
Hurex's role was limited to placing the plaintiff with Lederer and performing routine visits/inspections at the shopping centre. Accordingly, as between the first and second defendant I apportion liability as follows: –

First defendant: 15%

Second defendant: 85%

The cross-claim

Lederer by amended cross claim dated 1 February 2024 claims indemnity and or contribution from Hurex in accordance with s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The parties agree that in the event there is a finding of liability against Hurex, Lederer is entitled to a verdict on the cross-claim. Accordingly, there will be a verdict for the cross-claimant against the cross-defendant on the cross-claim.

Contributory negligence

Hurex and Lederer contend that a finding of contributory negligence would be made if it is found that the plaintiff returned to the scene of the accident of his own initiative and absent any direction to do so by Necovski.
Section 5R of the CLA, relevant to the assessment of contributory negligence against Lederer, provides as follows:

“5R   Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a)  the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)  the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

Basten JA observed in Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [107]: -

“[107] The assessment of the plaintiff’s conduct involves a quite different exercise. A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff “to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”: Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1). That is a different exercise from the determination of whether or not the defendant has been negligent.”

The relevant risk of harm was a risk of the plaintiff suffering further psychological injury if he was to return to the scene of the accident, having experienced a psychological reaction from his initial exposure. I am satisfied that such a risk was foreseeable, not insignificant, and that a person in the plaintiff's position would have taken the precaution of not returning to the scene of the accident. Further I am satisfied that the plaintiff's re-exposure to the scene of the accident would have caused a further aggravation of the mental harm suffered by reason of his initial exposure to the scene of the accident. It is a matter referred to by several of the psychiatric experts.
I am satisfied that a finding of contributory negligence ought to be made in respect of the plaintiff’s claim against both defendants.
In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494, the High Court (Gibbs CJ, Mason J, Wilson J, Brennan J and Dean J) said the following:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

It was the conduct of the first and second defendants that resulted in the plaintiff initially attending the scene of the accident. Had the plaintiff been given the direction not to attend the scene of such an accident it is likely he would not have returned as he did. I assess the plaintiff’s contributory negligence at 10%.

Damages – Lederer

Lederer contended that the plaintiff's medical history prior to the accident, and the extent to which it was disclosed to the various medical experts, is relevant on the assessment of damages.
The evidence undoubtedly establishes that the plaintiff did suffer psychiatric symptoms in his past, in part related to traumatic events, including being the victim of sexual abuse at a young age and the traumatic drowning of his young son. The evidence further establishes that the plaintiff had, throughout his adult life, been prescribed antidepressant medication. These matters were readily conceded by the plaintiff in cross examination.
Whilst the plaintiff was regularly reviewed by his general practitioner Dr Saroha, following his relocation to the Illawarra, the clinical notes are consistent with some stabilisation of his symptoms in late 2019 and the first half of 2020. The clinical notes during this period are generally absent any significant psychological symptoms. The plaintiff's stabilisation is objectively consistent with him securing employment with Hurex in June 2020.
Approximately one month after commencing work the plaintiff reported to Dr Saroha that he was feeling well and coping. Whilst the clinical notes reveal some increase in his psychological symptoms in the period leading to the accident, I do not accept Lederer's characterisation of this period as things “unravelling" for the plaintiff. Indeed, in the last consultation prior to the accident Dr Saroha specifically recorded an absence of “hopelessness, pessimism or suicidal ideation”. Despite the plaintiff apparently working long hours with increasing responsibilities, there is no suggestion he was not attending for work and/or performing his duties as required, albeit not to the standard expected. Whilst Necovski suggested in her evidence that the plaintiff failed to open the shopping centre on time prior to the accident, there is some uncertainty as to the timing of this given generally the plaintiff only commenced working the morning shift after the accident. However I accept the plaintiff conceded this did happen prior to the accident.
I do not accept Lederer's submission that the apparent absence of reporting by the plaintiff of post-traumatic stress disorder symptoms to his work colleagues or Dr Saroha necessarily leads to a finding that the plaintiff was not suffering any psychological consequences of his experiences from the day of the accident. As previously observed, the deterioration in the plaintiff's work performance following the accident, as conceded by Necovski, is consistent with the plaintiff's functioning deteriorating during this period.

Whilst the plaintiff fairly conceded that there were a number of stressors present in the period leading to his cessation of work, the certification of Dr Saroha as his general practitioner that his inability to work from 13 May 2021 was because of the traumatic incident cannot be discounted, particularly, as previously observed, Dr Saroha was the plaintiff's treating general practitioner prior to and following the incident. This is also consistent with Dr Saroha's referral to Dr Panesar in the weeks thereafter requesting urgent opinion and management of the plaintiff who was extremely distressed following the accident which had impacted on his ability to work.
It is the collective opinion of all the experts that the plaintiff suffers post-traumatic stress disorder because of the traumatic incident. It is the joint opinion of Drs Malik and Allnut that the plaintiff suffers chronic post-traumatic stress disorder and recurrence of a major depressive episode and anxiety. It is the further opinion of Dr Allnut that the plaintiff continues to experience significant ongoing psychological symptoms impacting on his daily life. This includes persistent low mood, anxiety and traumatic memories related to the accident.
The plaintiff experiences associated anxiety symptoms including nightmares and flashbacks. Additionally, the plaintiff continues to struggle with depression with associated social isolation, impacting on his social functioning and quality of life. The expert opinions are consistent with the evidence of the plaintiff as to his ongoing symptoms, which I accept. The plaintiff’s reported symptoms are also consistent with his presentation whilst giving evidence, including his distress when describing the events of the day of the accident and his ongoing disabilities.

Non-economic loss

Section 16 of the CLA provides that no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of the most extreme case. The section further provides an indexed maximum that may be awarded for non-economic loss, and it is necessary for the Court to determine the severity of non-economic loss as a proportion of the most extreme case.
The plaintiff contends non-economic loss should be assessed at somewhere between 35% and 40% of a most extreme case. Lederer contends that it would be assessed at 25% of the most extreme case.
I find the plaintiff should be assessed at 30% of the most extreme case resulting in an award for non-economic loss of $166,000.

Past economic loss

There is no issue that the plaintiff earned an average of $1,014 net per week for the period he was employed at the shopping centre. The plaintiff claims this amount since the date he ceased working on 13 May 2021. Hurex contends that this is not an appropriate measure of the plaintiff's loss.
The plaintiff conceded that in the interim he had worked on a duck farm for approximately three or four months, although he could not recall his earnings. The defendants contended this reflects poorly on his credit in circumstances where there was no disclosure to the Workers Compensation Insurer. Lederer contends that his failure to disclose this fact to any of the medical experts undermines their respective opinions as to the plaintiff's capacity for work. In any event, Lederer relies upon the opinion of Dr Malik that the plaintiff does have some capacity for work, which would only increase with his return to the workforce. In the circumstances Lederer contends that the plaintiff would be awarded a lump sum not exceeding $50,000.
Whilst I accept the plaintiff’s failure to disclose the brief period he worked on the duck farm does not reflect well on his credit, when confronted with this fact he unhesitatingly admitted not only to working, but also its non-disclosure. I am not satisfied that the expert opinions ought to be rejected because of the plaintiff’s failure to disclose this work. For the reasons already given, the opinions of each of the experts were based upon a range of factors relevant to their assessments.
The plaintiff has been certified as having limited or no capacity for employment since the date of the accident by a series of certificates required for the receipt of workers compensation benefits. The most recent certificate was completed by Dr Christmas in December 2023 certifying the plaintiff as having no current work capacity as a consequence of post-traumatic stress disorder.
In the assessment of past and future economic loss the plaintiff's earnings history, to the extent that it is ascertainable, cannot be ignored. An agreed summary of the plaintiff's tax returns reveals the following average net weekly income for the respective financial years, after deduction of Centrelink benefits: –

Per year

Net per week

2015

$63

2016

No tax return produced

2017

No tax return produced

2018

$206

2019

$113

2020

$17

The plaintiff had been working at the shopping centre for over four months by the time of the accident. Given the plaintiff's poor work history, the relatively short period the plaintiff had been working at the shopping centre and his less-than-ideal performance prior to the accident, I do not accept the plaintiff's submission that past economic loss ought to be awarded at the plaintiff's average pre-accident earnings whilst at the shopping centre for the entire period.
Past economic loss is to be assessed for a period of close to three years. It is more than likely the plaintiff would have had further periods of unemployment over that time. Further, the work at the duck farm is consistent with the plaintiff having some work capacity during this period. In all circumstances, I award the plaintiff past economic loss of $800 net per week from 14 May 2021 calculated as follows:

$800 x 154 weeks = $123,200

Past loss of superannuation

The parties agree that pass loss of superannuation should be calculated at 12% of the net loss as follows: -

$123,200 x 12% = $14,784

Fox v Wood damages

Fox v Wood damages are agreed in the sum of $33,158.

Future economic loss

The plaintiff claims future economic loss at the agreed rate of $1,014 net per week until age 67. The plaintiff concedes that an increased allowance for vicissitudes of 25% should be made given the plaintiff's pre-existing psychiatric conditions and demonstrated work capacity.
Lederer contends that the opinions of the psychiatrists do not overwhelmingly support a total loss of capacity. Further, the plaintiff's move to a more rural location strengthens his prospects for employment given his previous experience working in the agricultural sector. Lederer also relies upon the earning capacity reports obtained by Hurex. The Court would also take account of the plaintiff's tendency to move around, and accordingly future economic loss would not be assessed on the premise that he will remain living in the Riverina area. In the circumstances it is submitted that a cushion of no more than $50,000 including superannuation would be awarded.
Section 13 of the CLA provides that a Court cannot make an award of damages for future economic loss unless the plaintiff satisfies the Court that the assumptions about future earning capacity on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. Further, the Court is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. It is necessary for the Court to state the assumptions on which the award for future economic loss is based.
The reference to “most likely” in section 13 is a reference to the most likely of possibilities and not a reference to probabilities: Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 per White JA at [43]. The section also requires the Court to determine what the plaintiff's future earning capacity is likely to be in light of the injury he has suffered: White v Redding [2019] NSWCA 152 per MacFarlane JA at [33]: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Basten JA at [28].
Whilst the decision in State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 predated the CLA, it has been cited when considering s 13. In Moss, Heydon JA at [71] observed that “the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss", citing Graham v Baker (1961) 106 CLR 340 at [347]. Further, at [87] his Honour observed:

“Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is been made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility".

The plaintiff's claim for future economic loss can only be premised on the assumption that the plaintiff would have remained in his employment with the shopping centre or equivalent employment at a similar level of remuneration. I am not satisfied that this accords with the claimant's most likely future circumstances for the following reasons. First, the plaintiff's earnings history is not consistent with stable employment, let alone employment at the remuneration level claimed. In the three full financial years prior to his employment at the shopping centre the plaintiff earned an average of $206, $113 and $17 per week respectively. Secondly, the plaintiff’s somewhat unstable medical history and personal circumstances rendered it unlikely that he would remain in stable employment for the remainder of his working life.
The preponderance of medical evidence does not support the plaintiff's claim that he has no residual earning capacity capable of being exercised: Mead v Kerney [2012] NSWCA 215. Assuming the plaintiff was to remain residing in the Riverina he conceded in cross-examination that his skill set and previous experience working in the rural sector would make him suitable to seek local employment. That option was unexplored by the plaintiff, although he did not dispute his capacity to undertake such work. Indeed, the plaintiff accepted that for several months he had successfully performed work on a duck farm. To the extent he may relocate closer to or within an area with a larger populated area, I find that the plaintiff does have a capacity to perform some cleaning or other unskilled work.
Further, the most recent Earning Capacity Assessment Report commissioned by Hurex supports the availability of domestic and/or commercial cleaning work in the Riverina. The joint report of Drs Allnut and Malik does not dismiss the prospects of the plaintiff returning to some form of remunerative work.
However, I do not accept Lederer’s submission that future economic loss should be awarded by way of a cushion or buffer.
I assess the plaintiff's future economic loss at $600 net per week on the following assumptions: –

The plaintiffs most likely future circumstances but for the injury is that the plaintiff would have been employed in cleaning or similar work earning approximately $1,000 net per week, although such employment would have been intermittent.

The plaintiff has a residual earning capacity capable of being exercised in the vicinity of $200 net per week, either working in agricultural/farming or cleaning work.

The assessment is discounted by 20% for vicissitudes for the reasons conceded by the plaintiff in submissions.
Accordingly, future economic loss is assessed as follows: –

$600 x 529.3 less 20% = $254,064

Future loss of superannuation

As agreed, the plaintiff's future loss of superannuation is to be assessed at 14.54% of the net loss calculate as follows: –

$254,064 x 14.54% = $36,941

Past treatment expenses

The plaintiff claims past treatment expenses in the sum of $36,000 being payments made by the Workers Compensation Insurer for the plaintiff's treatment. This sum is agreed as to the mathematics only. Hurex disputed the causal relationship between the incurring of these expenses and the alleged incident. However, Hurex was prepared to accept this figure contingent on the plaintiff succeeding as to liability.
In the circumstances, I award pass treatment expenses in the sum of $36,000.

Future treatment expenses

The plaintiff claims future treatment expenses by way of a buffer in the sum of $100,000, reflecting ongoing allowances for general practitioner, psychologist, and psychiatric review in addition to medication. The plaintiff relies in part upon past medical expenses being accrued at a rate exceeding $200 net per week. This of itself is an insufficient basis for the awarding of future economic loss as claimed.
The joint report supports ongoing treatment in the form of engagement with the plaintiff's general practitioner, psychologist and psychiatrist. The exact duration and frequency of medication were matters within the domain of the treating psychologist and psychiatrist, although it was noted that there was no suggestion the medication or treatment would be ceased in the foreseeable future.
Lederer contends that an award not exceeding $10,000 be made for future treatment expenses. There are no further submissions in support of this contention.
The award of future treatment expenses is governed by the provisions of section 13 of CLA, in that it is a specie of future economic loss: Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146; [2018] NSWCA 146 per Payne JA at [166].
I am satisfied that the plaintiff will require ongoing intervention with a psychologist and a psychiatrist, although given the plaintiff's present location, and the prospect of further moves, such treatment is unlikely to be regular. I accept that the plaintiff will also require ongoing review by a general practitioner and there will be the need for prescription medication. However, given the plaintiff's pre-accident psychological history, including regular reviews by a general practitioner and the prescription of antidepressant medication, I find that the but for the injury the plaintiff was likely to incur some costs of a general practitioner and prescription medication in any event.
In all the circumstances, I award the plaintiff the sum of $25,000 for future treatment expenses.

Damages - Hurex

The plaintiff’s entitlement to damages as against Hurex is limited to damages for past and future economic loss: s 151G of the Workers Compensation Act 1987.

Past economic loss

The plaintiff and Hurex have agreed to damages for past economic loss in the sum of $178,020 and I award that sum. Whilst this leads to an anomaly in the assessment of future economic loss as between Hurex and Lederer, as conceded by counsel for Hurex, the court must recognise this agreement and award damages consistent with it.

Past loss of superannuation

Past loss of superannuation has been agreed in sum of $23,143 and I award that sum.

Fox v Wooddamages

Fox v Wood has been agreed in the sum of $33,158 and I award that sum.

Future economic loss

Accordingly, the only issue requiring determination is the assessment of future economic loss. Whilst s 13 of the CLA is inapplicable in the assessment of future economic loss against Hurex (s 3B(1)(f) of the CLA) it is still necessary for the Court to assess future economic loss in accordance with common law principles such as those discussed in Moss.
The plaintiff and Hurex agree that damages for future economic loss as assessed against Hurex would be the same as assessed against Lederer. Accordingly, I assess future economic loss as against Hurex in the sum of $254,064.

Future loss of superannuation

As agreed, the plaintiff's future loss of superannuation is to be assessed at 14.54% of the net loss calculate as follows: –

$254,064 x 14.54% = $36,941

ORDERS

Verdict and judgment for the plaintiff against the first and second defendant to be the subject of agreed calculations based on my findings in this judgment.
Verdict and judgment for the cross-claimant against the cross-defendant on the cross claim.
The parties are to agree on short minutes of order reflecting my findings within 14 days.
The first and second defendant are to pay the plaintiffs costs of the proceedings.
Any application for an alternative or additional costs order is to be made in writing within 14 days.

**********

Decision last updated: 30 April 2024

Medium Neutral Citation:	Hodson v Hurex Pty Ltd and Lederer Pty Ltd [2024] NSWDC 143
Hearing dates:	26 February– 1 March, 5 March – 6 March, 16 April 2024
Date of orders:	26 April 2024
Decision date:	26 April 2024
Jurisdiction:	Civil
Before:	Fitzsimmons SC DCJ
Decision:	(1) Verdict and judgment for the plaintiff against the first and second defendant to be the subject of agreed calculations based on my findings in this judgment. (2) Verdict and judgment for the cross-claimant against the cross-defendant on the cross claim. (3) The parties are to agree on short minutes of order reflecting my findings within 14 days. (4) The first and second defendant are to pay the plaintiffs costs of the proceedings. (5) Any application for an alternative or additional costs order is to be made in writing within 14 days.
Catchwords:	CIVIL – claim for pure mental harm – normal fortitude test – recognised psychiatric injury – liability of host employer – liability of employer – non delegable duty of care – whether psychiatric injury caused by exposure to traumatic scene – assessment of non-economic loss – economic loss
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5R, 13, 32 Workers Compensation Act 1987, s 151G
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146; [2018] NSWCA 146 Blacktown City Council v Hocking [2008] NSWCA 144 Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 Chen by her tutor Huang v Kmart Australia Ltd [2023] NSWCA 96 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Dib Group Pty Ltd Trading as Hill & Co v Cole (2009) Aus Torts Reports 82-022; [2009] NSWCA 210 FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Fox v Wood (1981) 148 CLR 438 Graham v Baker (1961) 106 CLR 340 Hadid v State of New South Wales [2024] NSWCA 73 Karpik v Carnival PLC (The Ruby Princess) (IT) [2023] FCA 1280 Kondis v State TransportAuthority (1984) 154 CLR 672 Lapore v State of New South Wales (2001) 52 NSWLR 420 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 Mason v Demasi [2009] NSWCA 227 Mead v Kerney [2012] NSWCA 215 Mount Owen Pty Ltd v Parks [2023] NSWCA 77 Optus Administration Pty Ltd v Glen Wright by his tutor James Stuart Wright [2017] NSWCA 21 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Strong v Woolworths Ltd [2012] HCA 5; (2012) CLR 183 Tame v New South Wales and Annetts v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 Wallace v Kam [2012] NSWCA 82 White v Redding [2019] NSWCA 152
Category:	Principal judgment
Parties:	Andrew Hodson (Plaintiff) Hurex Pty Ltd (First Defendant) Lederer Pty Ltd (Second Defendant)
Representation:	Counsel: Mr D Campbell SC with Ms J L Magee (Plaintiff) Mr J J Ryan (First Defendant) Mr S E McCarthy (Second Defendant) Solicitors: RMB Lawyers (Plaintiff) McCabes Lawyers (First Defendant) Bartier Lawyers (Second Defendant)
File Number(s):	2023/00084062
Publication restriction:	NIL

Per year	Net per week
2015	$63
2016	No tax return produced
2017	No tax return produced
2018	$206
2019	$113
2020	$17