Sdrolias v Power Distribution Services Pty Limited - [2021] NSWSC 321

Supreme Court

New South Wales

Medium Neutral Citation: Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321
Hearing dates: 24-28 August 2020
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) Verdict and judgment for the defendants.
(2) Both cross-claims are dismissed.
(3) The plaintiff is to pay the defendants’ costs.
(4) The costs of each defendant of the cross-claim brought by it and of defending the cross-claim brought against it by the other defendant are to be assessed against the plaintiff as costs of defending the plaintiff’s claim.
(5) Any application to vary the costs orders or for costs to be assessed other than on a party/party basis is to be filed within 14 days of the publication of the reasons for judgment.

Catchwords:
NEGLIGENCE – Duty of care – Foreseeability – psychiatric injury – plaintiff witnessed physical injury to employees of a sub-contractor on site
NEGLIGENCE – Vicarious liability of sub-contractor for employees’ tort of negligence

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)

Cases Cited:
Credit Lyonnais Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486
Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36
Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Twine v Bean’s Express Ltd [1946] 1 All ER 202

Texts Cited:
Fleming, Law of Torts, 10th ed (2011)

Category: Principal judgment
Parties: Evangellia Sdrolias (plaintiff)
Power Distribution Services Pty Ltd (first defendant)
Allianz Australia Insurance Limited (second defendant)
Representation:
Counsel:
R McIlwaine SC with R Goodrich (plaintiff)
B Kelleher (first defendant)
P Morris SC with R Perla (second defendant)
Solicitors:
Firths Lawyers(plaintiff)
Colin Biggers & Paisley (first defendant)
Moray & Agnew (second defendant)

File Number(s): 2016/00322372
Publication restriction: No

Judgment

The plaintiff claims damages for psychiatric harm allegedly sustained as a result of witnessing an electrical explosion by which two workmen were severely burned on 30 October 2013. On that date the plaintiff was employed by Direct Traffic Pty Ltd (“Direct Traffic”) as a traffic controller. She was performing those duties on a site at Eastern Creek where subsurface electrical cables were being installed to serve two switching stations at a data centre on Roberts Road. Direct Traffic had been engaged by the first defendant, Power Distribution Services Pty Ltd, which was carrying out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 321
Decision Date: 01 April 2021

CaseChat Overview and Summary

In the case of Sdrolias v Power Distribution Services Pty Limited, the plaintiff sought damages for psychiatric injury allegedly caused by witnessing physical injuries to employees of a sub-contractor while on site. The plaintiff, Sdrolias, alleged that the sub-contractor, Power Distribution Services, was negligent in failing to ensure the safety of its employees, leading to the injuries witnessed by Sdrolias. The case was heard in the Federal Circuit Court of Australia.

The central legal issues in the case involved whether Power Distribution Services owed a duty of care to the plaintiff for the psychiatric injury claimed, and if so, whether this duty was breached. Additionally, the court had to determine whether Power Distribution Services could be held vicariously liable for the negligence of its employees, and if Sdrolias's injury was a foreseeable consequence of such negligence. The court also examined the extent to which foreseeability of psychiatric injury impacts the establishment of a duty of care in this context.

In its decision, the court held that Power Distribution Services did not owe a duty of care to the plaintiff for the psychiatric injury sustained. The court reasoned that the injuries witnessed were not of a type that could reasonably be foreseen to cause psychiatric harm to someone in Sdrolias's position. Furthermore, the court found that the injuries did not create a situation of special vulnerability or reliance that would establish a duty of care. Consequently, the court dismissed the claim for psychiatric injury, and no vicarious liability was established against Power Distribution Services.

The court ordered that the plaintiff's claim be dismissed with costs to be paid by the plaintiff. The reasoning focused on the foreseeability of psychiatric harm and the lack of a special relationship between the plaintiff and the sub-contractor's employees, which are critical elements in establishing a duty of care in such cases.

Orders