Karzi v Toll Pty Ltd

Case [2024] NSWCA 120


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Karzi v Toll Pty Ltd [2024] NSWCA 120
Hearing dates: 3 May 2024
Decision date: 22 May 2024
Before: Leeming JA at [1];
Adamson JA at [9];
Basten AJA at [162]
Decision:

(1)   Dismiss the appeal.

(2)   Order the appellant to pay the respondent’s costs of the appeal.

Catchwords:

NEGLIGENCE — duty of care — foreseeability — whether primary judge erred in finding risk of psychiatric harm to employee was not reasonably foreseeable — where employee was verbally harassed by co-workers — where employee made complaint to employer and employer took reasonable precautions to address risk of psychiatric harm — where employee did not indicate to employer that psychiatric harm was being suffered

NEGLIGENCE — causation — where employee suffered “transient” psychiatric injury — whether certificate of whole person impairment issued by the Workers Compensation Commission was evidence of the permanence of the psychiatric injury for the purpose of ascertaining causation

APPEALS — from finding of fact — improper admission of evidence — whether primary judge erred in admitting evidence of witness who was not disclosed in respondent’s pre-filing statement — where disclosure was required by s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appellant’s pre-filing statement did not comply with s 315

CIVIL PROCEDURE — pleadings — whether primary judge erred in failing to address appellant’s case on vicarious liability — where vicarious liability was not pleaded — where vicarious liability was raised in cross-examination and oral submissions at first instance — purpose and function of pleadings

Legislation Cited:

Civil Liability Act 2002 (NSW), s 32

Civil Procedure Act 2005 (NSW), Pt 6

Uniform Civil Procedure Rules 2005 (NSW), r 51.36

Workers Compensation Act 1987 (NSW), ss 150, 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 315, 318, 326

Cases Cited:

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Bersee v State of Victoria (2022) 70 VR 260; [2022] VSCA 231

CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Gower v State of New South Wales [2018] NSWCA 132

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Koehler v Cerebos (Australia) Pty Limited (2005) 222 CLR 44; [2005] HCA 15

Kozarov v State of Victoria (2022) 273 CLR 115; [2022] HCA 12

Kubovic v HMS Management Pty Ltd [2015] NSWCA 315

McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60

Nationwide News v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377

Stevens v DP World Melbourne Ltd [2022] VSCA 285

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Watson v Foxman (1995) 49 NSWLR 315

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Category:Principal judgment
Parties: Mohd Younas Karzi (Appellant)
Toll Pty Ltd (Respondent)
Representation:

Counsel:

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Details
AGLC
Karzi v Toll Pty Ltd [2024] NSWCA 120
Case
[2024] NSWCA 120
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim for damages for psychiatric injury brought by the appellant, Mr Karzi, against his employer, Toll Pty Ltd. Mr Karzi alleged that he suffered a psychiatric injury as a result of verbal harassment by his co-workers. The primary judge had found that the risk of psychiatric harm to Mr Karzi was not reasonably foreseeable, and that even if it were, the employer had taken reasonable precautions to address any such risk. The appeal was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge erred in finding that the risk of psychiatric harm to Mr Karzi was not reasonably foreseeable. It also had to consider whether the primary judge erred in admitting evidence from a witness who had not been disclosed in the respondent's pre-filing statement, contrary to section 315 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). Further, the court considered whether a certificate of whole person impairment, which described the injury as "transient", was evidence of the permanence of the psychiatric injury for the purposes of causation. Finally, the court was asked to consider whether the primary judge erred in failing to address the appellant's case on vicarious liability, which had not been formally pleaded but was raised during the proceedings.

The Court of Appeal dismissed the appeal. It held that the primary judge did not err in finding that the risk of psychiatric harm was not reasonably foreseeable, particularly as Mr Karzi had not indicated to his employer that he was suffering from psychiatric harm. The court found that the employer had taken reasonable precautions to address the risk of psychiatric harm. Regarding the admission of evidence, the court noted that the appellant's own pre-filing statement did not comply with section 315 of the Act, and therefore the primary judge did not err in admitting the evidence. The court also found that the certificate of whole person impairment, describing the injury as "transient", did not establish the permanence of the injury for causation purposes. The court further held that the primary judge was not required to address the unpleaded issue of vicarious liability.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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