State of NSW (Fire & Rescue NSW) v Transport Accident Commission

[2024] NSWDC 574

District Court

New South Wales

Medium Neutral Citation:

State of NSW (Fire & Rescue NSW) v Transport Accident Commission [2024] NSWDC 574

Hearing dates:

11 October 2024

Date of orders:

3 December 2024

Decision date:

03 December 2024

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1) The defendant’s notice of motion filed on 16 May 2024 is dismissed.

(2) The defendant is to pay the plaintiff’s costs of the notice of motion.

Catchwords:

PRACTICE AND PROCEDURE – permanent stay of proceedings – recovery proceedings under s 151Z Workers Compensation Act 1987 (NSW) – whether absence of documentary and other evidence deprives defendant of the opportunity of a fair trial

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 67

Motor Accidents Compensation Act 1999 (NSW) s 3A(2)

Workers Compensation Act 1987 (NSW) ss 151Z(1)(d), (2)(c) and (2)(e)

Cases Cited:

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

R v Edwards (2009) 83 ALJR 717; [2009] HCA 20

Category:

Procedural rulings

Parties:

State of NSW (Fire & Rescue NSW) (Plaintiff/Respondent)
Transport Accident Commission (Defendant/Applicant)

Representation:

Counsel:
Mr J Ryan (Plaintiff/Respondent)
Mr J Turnbull SC and Ms S Warren (Defendant/Applicant)

Solicitors:
Bartier Perry Lawyers (Plaintiff/Respondent)
Holman Webb Lawyers (Defendant/Applicant)

File Number(s):

2021/00078393

Judgment

Background

1. By notice of motion filed on 16 May 2024, the defendant seeks to permanently stay these proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW).

2. The background facts can be briefly summarised as follows:

1. At all relevant times, the plaintiff employed Gregory Adams (‘the worker’).

2. The worker commenced employment with the plaintiff as a firefighter in May 1984 and continued in that employ until his medical retirement in 2012. Over that time the worker progressed to the rank of Chief Superintendent.

3. On 10 June 2004, the worker, in the course of his employment, attended the scene of a serious motor accident involving a head-on collision between two trucks (‘the motor accident’). At the scene, the worker was exposed to an environment which caused him emotional trauma.

4. In the course of his employment, the worker was exposed to a number of other events which had the potential to be emotionally traumatising.

5. The worker’s medical retirement arose out of psychiatric illness.

6. The plaintiff has made payments of workers compensation to the worker in respect of his psychiatric illness pursuant to the Workers Compensation Act 1987 (NSW) (‘WCA’).

7. The defendant is the compulsory third-party insurer of the vehicle at fault in the motor accident.

8. In these proceedings, the plaintiff seeks to recover its workers compensation payments from the defendant pursuant to the statutory indemnity provided under s151Z(1)(d) of the WCA. To that end, the plaintiff’s claim is based on an alleged liability on the part of the defendant to pay damages to the worker in respect of injury caused by the motor accident.

3. In the claim it brings, the plaintiff effectively stands in the shoes of the worker in order to establish a liability on the part of the defendant to pay damages in respect of the injury for which compensation was paid and to establish the quantum of those damages.

4. As such, the claim for statutory indemnity which the plaintiff brings against the defendant is framed by the operation of the Motor Accidents Compensation Act 1999 (NSW) (‘MACA’), which governed claims for damages in motor accident claims at the relevant time.

5. Amongst the defences raised is what I will refer to as the “series of incidents defence” under s 3A(2) MACA, which is pleaded in the following terms:

“Further and in the alternative, any psychiatric condition suffered by the Worker arose gradually and from a series of incidents arising from the nature and conditions of his employment. The defendant relies upon section 3A (2) of the Motor Accidents Compensation Act and alleges that any psychiatric condition suffered by the worker is not compensable and the defendant is therefore not a person who would be required to pay damages to the Worker.”

6. The defendant also relies upon its pleading in paragraphs 11 and 13 of the defence and argues, in the alternative to its primary defence, that any recovery of compensation ought be limited as a result of the plaintiff’s negligence arising out of what can generally be described as a failure to monitor and respond to the worker’s exposure to trauma in the workplace. I will refer to this as the “employer negligence defence”.

The Dispute

7. The defendant contends that it suffers insurmountable prejudice arising out of an inability to obtain documentary or other evidence enabling it to ascertain the extent and effect of emotional trauma suffered by the worker in the course of his employment with the plaintiff and the plaintiff’s response to those traumatic events.

8. At the outset of the hearing before me there was a pleading issue which ultimately evaporated and does not require detailed discussion for present purposes.

9. However, in the course of submissions on that issue, Mr Turnbull of Senior Counsel who appeared with Ms Warren for the defendant confirmed that, whilst his client does not dispute negligence on the part of its insured driver, which caused the worker to suffer some psychiatric injury as a result of the motor accident, it contends that injury was but one in a chain of injuries which resulted in the payments of workers compensation the subject of the plaintiff’s claim for indemnity, thus triggering the pleaded exclusion under s 3A(2) MACA and its series of incidents defence.

10. The defendant argued that the information which is available shows that the worker’s psychological condition was caused by multiple traumatic events including “a massive bushfire in 2001, as well as the cumulative impact of multiple traumatic events that he attended in the course of his employment as a firefighter throughout the period of his employment”. [1]

    1. See paragraph 4 – defendant’s written submissions dated 16 September 2024 (DWS).

11. The defendant says it cannot have a fair trial unless it obtains records in relation to the effects of the entire period of the worker’s employment.

12. Historically, there have been a number of interlocutory applications over a protracted period in which the defendant has sought to obtain relevant documents through the discovery process. The plaintiff has now provided as much material as it can, though it acknowledges the unavailability of various documents sought by the defendant.

13. For the purposes of this application, the defendant breaks the worker’s employment down into four periods and describes the outcome of the discovery process, in that context, as follows:

1. Period 1 (from 25 November 1984 to 29 November 1991) – Whilst handwritten occurrence books have been provided, the defendant says it is not possible to identify if the worker was involved in any of the potentially traumatic events recorded in those books.

2. Period 2 (from 30 December 1991 to 1998) – Again, a number of occurrence books have been provided for this period. In its written submissions, the defendant says this period has particular relevance as the worker’s general practitioner recorded an episode of stress in 1995, for which a certificate was issued in February 1996. The defendant says that whilst it is possible to identify from the available documents that the worker’s platoon attended various events, it is not possible to identify what occurred at those events and whether they were potentially traumatic. It is said that the records which are available are not complete. Otherwise, searches of records in the public domain have not disclosed any other traumatic events during this period.

3. Period 3 (from 1998 to 2003) – No complaint is made about the availability of records during this period. The defendant points out, however, that it has identified 124 potentially traumatic incidents during this period from the available material.

4. Period 4 (from 1 November 2003 to 2011) – It is said that the documentation provided for this period does not generally record attendances at incidents by officers at and above the rank of Inspector. As such, it is does not particularly assist for the purposes of determining stressors upon the worker, who held the rank of Superintendent from February 2007. Otherwise, the defendant complains that the documentation records only some of the worker’s attendances but is not comprehensive.

14. The defendant argues that the forensic prejudice arising from the unavailability of documents is taken to an intolerable level because it is unable to obtain information from the worker to fill in the gaps.

15. It is common ground amongst all doctors who have examined the worker that he suffers a debilitating psychiatric condition.

16. Dr Rastogi, who saw the worker in November 2019 at the request of the worker’s then solicitors, describes him as, despite intensive treatment, having ongoing residual symptoms of post-traumatic stress disorder, prone to relapse as a result of triggering events. To quote the doctor, “He is easily triggered by minimal stimuli and has poor tolerance to distress”.

17. In April 2020, Dr Davies, retained by the plaintiff’s workers compensation insurer, in similar terms to Dr Rastogi, described a person significantly affected by psychiatric illness and vulnerable to intrusive re-experiencing of traumatic events. The doctor observed that whilst the worker was not, at that time, experiencing suicidal ideation, he had contemplated suicide in the past.

18. The solicitors for the defendant wrote to the plaintiff’s solicitors on 13 October 2023 seeking assistance in obtaining a statement from the worker. The plaintiff’s solicitors, on 8 March 2024, responded:

“…we advise that Mr Adams’s treating psychologist, Dr Gianacas advises that he is not fit to provide a statement of this kind. In summary, she observes that Mr Adams is suffering from a major depressive illness and post traumatic disorder. She observes in her capacity as his treating psychologist that to require him to recall historical detail of past incidents that relate to traumatic incidents he attended are beyond his capacity due to the severity of his current condition and a high risk to further his trauma.”

19. In that context, the plaintiff’s solicitors provided a letter from Dr Gianacas dated 16 January 2024. In that letter, the doctor, subject to the caveat that she did not identify as an expert witness and had not conducted a competency assessment, said:

“I understand that you are requesting information relating to Mr Adams mental fitness to recall and present explicit historical details relating to several traumatic events experienced as part of his role in Fire and Rescue NSW firstly within an affidavit and secondly within a courtroom with cross-examination. It is my concern that both these tasks are far beyond Mr Adam’s capacity due to his current severity of symptoms and the high risk of further trauma reexperiencing and relapse …

I am concerned that given these symptoms particularly relating to cognitive dysfunction, Mr Adams would have little capability to accurately and specifically provide historical details required either in a written affidavit or verbally in a courtroom. He has a high risk of dissociation or physiological hyperarousal when asked to attend to any task outside his perceived cognitive capacity particularly involving memory and concentration.”

20. In the circumstances, the defendant says that the worker is realistically beyond reach, leaving the defendant in a position where it is severely restricted in its ability to investigate and defend the plaintiff’s claim.

21. The plaintiff argues that the application for a stay is misconceived and that there is ample evidence the defendant can enlist to pursue the arguments it seeks to agitate, contending that:

“The defendant’s submissions are directed to the question of whether there were prior events in the worker’s employment which created psychological injury or vulnerability to such injury. Of that there can be no doubt, there is ample evidence available to the court to determine the questions raised in paragraphs 10-13 of the defence and such evidence where relevant has been considered by medico legal experts.” [2]

2. See paragraph 4 – plaintiff’s written submissions dated 16 September 2024 (PWS).

22. The plaintiff accepts that, over the course of his employment, the worker was exposed to events which resulted in psychological harm.

23. The plaintiff argues that the defendant’s reliance on s 3A(2) of the MACA is without merit. It contends that the section is directed towards injuries arising from cumulative or progressive injury and cites, as an illustration of that, a person injured over time as a result of driving a truck with poor suspension and an ill-fitted seat, as occurred in Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343.

24. In any event, the plaintiff argues that the absence of documents does not go to the issue of whether the defendant would get a fair trial, but rather it goes to “the question of whether the defendant can maintain aspects of its defence grounded upon positive assertions made by it. This is a matter for ultimate determination.” [3]

    3. See paragraph 25 – PWS.

25. The plaintiff submits that the worker is a witness, not a party, to the proceedings, and does not accept that the worker is unavailable, though it argues that even if that is the case, the defendant can still obtain a fair trial.

Consideration

26. It is common ground that the Court’s power to grant a permanent stay is an exceptional power, exercised only in circumstances where it is the “last resort”.

27. The defendant argues for a stay on the basis of what it says is the inability to have a fair trial. On this issue, the defendant bears the onus of proof. Although that onus is on the civil standard, it has been described as a heavy one (see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 (‘GLJ’), at [21]).

Section 3A(2) MACA

28. The mainstay of the defendant’s arguments on this application relate to prejudice said to arise as a result of the defendant being precluded from effectively exploring and advancing the series of incidents defence based on the application of s 3A(2) MACA. As outlined above, the operation of s 3A(2) MACA is in issue and engages a question of statutory interpretation. The answer to that question will lie with the trial judge.

29. The fundamental argument advanced by the defendant is that there is a legitimate basis for the defence it seeks to advance, however it is unable, in the prevailing circumstances, to explore whether and to what extent the worker’s employment before and after the subject accident has contributed to his psychiatric condition. This, it is said, deprives the defendant of the opportunity to properly defend the claim.

30. In my view, there is considerable force in the plaintiff’s argument that the defendant already has evidence that other incidents have contributed to the worker’s condition. So much is effectively conceded by the plaintiff in the submissions quoted earlier. Even assuming the material the defendant complains it has been deprived of would have assisted the defendant’s cause, at best it would have disclosed more incidents to be added to the incidents the evidence already establishes have contributed to the worker’s psychiatric illness.

31. If it is the case that the worker is unavailable or unable to give evidence (which is a matter of dispute), the defendant has the benefit of a number of histories outlining the circumstances of the worker’s injury. Two of those histories were provided relatively recently, in generally consistent terms, to Dr Rastogi and Dr Davies.

32. It is clear from the submissions made in relation to this application that the plaintiff does not seek to place any restriction on the admissibility of those histories and indeed will also rely upon them.

33. To illustrate the point that there is already evidence available to the defendant, and without purporting to be exhaustive, the following history can be distilled from accounts provided on the material before me:

1. On 4 November 2011, the worker completed a claim form in which he described attending a major bushfire on 25 December 2001 where a number of people were trapped, threatening the lives of everyone there. In that claim form, the worker complained of various psychological symptoms evident since 2001.

2. Clinical notes of Dr Sue Wood disclose an entry dated 22 March 2011, referring to the presence of post-traumatic stress disorder for which the worker had been seeing Bill Warren [a clinical and forensic psychologist] for several years.

3. Dr Ang, treating psychiatrist, provided a medical report dated 30 August 2011, which contains a history of psychological trauma associated with the bushfire in 2001, a house fire in 2005 in which four children were incinerated, and a motor accident in 2005 where two trucks collided and the drivers were incinerated [which is, no doubt, the accident upon which the plaintiff sues]. The report describes the worker having increasing symptoms of anxiety since 2001, leading to him leaving work in 2011.

4. Dr Ang provided a further medical report dated 22 November 2011 in which he refers to the bushfire incident in December 2001 as being a substantial contributing factor to the worker’s psychological injury. In describing the role of the 2001 bushfire incident, Dr Ang records, “With regard to any previous predisposing or precipitating factors, although Mr Adams had been subject to witnessing dead and burnt bodies prior to this incident, it was only after this incident that symptoms started manifesting themselves”.

5. In a report dated 29 November 2011, Bill Warren records, “Greg and I covered a lot of material developing in his life and precipitated by a particularly traumatic fire back in 2001. As is not unusual in cases such as Greg’s, this also reactivated emotions related to other traumatic experiences during his career as a fireman”.

6. In a report dated 11 November 2019, Dr Rastogi, reporting to the worker’s solicitors, provides a history which refers to the following:

1. The stress associated with the bushfire in 2001.

2. The motor accident in 2004 involving a head-on collision between two trucks, where the worker witnessed one of the drivers’ burnt head falling off onto the road which was extremely distressing.

3. An incident in 2005, when the worker participated in a fire inspection of a house where four children were incinerated, causing a significant emotional reaction.

4. The subsequent worsening and deterioration of the worker’s psychological problems.

7. In a report dated 30 April 2020, following a consultation with the worker on 21 April 2020, Dr Davies provided a report to solicitors retained on behalf the plaintiff in which he sets out a detailed account of his interview with the worker. In doing so, Dr Davies records, “Mr Adams was able to give an account of the events to which he was exposed, in particular to three events.” Dr Davies then records the bushfire incident in Christmas 2001, the motor accident, and the house fire in 2005 in which four children were burnt to death. In terms of causation, Dr Davies says, “He describes a clear and convincing history of post-traumatic stress disorder and major depression, with an evolution of symptoms in the context of workplace adversity. In particular there is reference to three incidents which are described in the correspondence above and also covered in detail in other items of correspondence to which I have been privy” and later, “It is clear and unequivocal that Mr Adams describes an evolution of symptoms corresponding with significant workplace adversity, the details of which are contained within the body of my correspondence above and the other items to which I have been privy”.

34. The defendant relies on a report of Dr Ben Teoh dated 20 May 2024. In that report, Dr Teoh expresses the view:

“In the case of firefighters, exposure to actual or threatened death or serious injury in the course of their work would satisfy the criteria of a psychological trauma causing the development of post-traumatic stress disorder.

Cumulative exposure to traumatic events is likely to cause the development of a post-traumatic stress disorder – the risk of developing a post-traumatic stress disorder is dependent on the number of confronting events (as defined in DSM-V diagnostic criteria), rather than the length of service”.

35. Dr Teoh goes on to say:

“Incidents that the worker does not specifically recall may cause the development of post-traumatic stress disorder.

This is especially where it is a cumulative effect, as the person may attempt to suppress the traumatic experience and the psychological effect.

It is sometimes an unconscious psychological strategy not to remember the traumatic events as a means of coping with the symptoms of the post-traumatic stress disorder.”

36. Dr Teoh found himself unable to comment on whether the motor accident had caused the development of the worker’s post-traumatic stress disorder. He says:

“If there is no evidence of any traumas an expert would not be able to make a reliable assessment.

If there is a case of record of specific trauma, the expert would not be able to make a reliable assessment without reviewing further details as to the impact of the trauma on the mental health of the person.

In other words, the record of incidents does not provide sufficient information for an expert to reliably make an assessment of a Post-Traumatic Stress Disorder”.

37. I am not entirely sure what to make of Dr Teoh’s report. It appears he would not necessarily be assisted by the records which the defendant has complained are not available, without, as he puts it, “reviewing further details as to the impact of the trauma on the mental health of the person”. I assume when he talks of “further details”, Dr Teoh is referring to an account from the worker or, perhaps, medical records. Whilst there is no statement from the worker canvassing the entire history of his employment, there is a statement dated 3 August 2004 detailing his observations, and the role he played, when he attended the motor accident. There are also two medico-legal reports which record a reasonably detailed and not dissimilar history of the events which traumatised the worker. Those reports are supplemented by treating medical records and reports which similarly contain accounts as to the impact of trauma on the worker’s mental health.

38. Whilst Dr Teoh was unable to comment on whether the motor accident had “caused the development of post-traumatic stress disorder”, other doctors have expressed views as to the causal significance of the motor accident and other events occurring in the course of the worker’s employment, based upon accounts provided by the worker. On the face of it, this is evidence which amounts to “further details as to the impact of the trauma on the mental health of the person” which Dr Teoh felt he would need to review to make an assessment. However, somewhat inconsistently to my mind, other than saying he had read the documents provided by various doctors in relation to the worker’s treatment and psychiatric history, Dr Teoh does not review or engage with that evidence.

39. Notwithstanding Dr Teoh’s reluctance to comment on the issues raised with him, there is nonetheless, as I have said, a body of medical evidence dealing directly with matters relevant to the “series of incidents” defence the defendant seeks to advance.

40. The evidence discloses three predominant incidents in the worker’s history, namely the 2001 bushfire, the motor accident and an event in around 2005 where young children were incinerated. Notably, the defendant makes no complaint in relation to the adequacy of documents produced over the period between 1998 and November 2003, being the five years immediately preceding the year of the motor accident in 2004. As noted earlier, the defendant says those records disclose 124 potentially traumatic incidents during that period. Whilst further documentation, if available, might be expected to disclose that the worker attended other potentially distressing incidents, that is conceded and could not realistically be resisted having regard to the nature of the work performed by the worker over the years. Nonetheless, medical opinions as to causation will inevitably be informed by the accounts provided by the worker as to the effects of the events he has experienced. As I have said, the worker’s accounts have consistently focused on the three particular incidents to which I have referred.

41. It is apparent from its submissions referring to consultations and certificates issued to the worker in 1995 and 1996, that the defendant has access to some historical medical records.

42. As I see it, there is a meaningful body of evidence available to the defendant to enable it to prepare and prosecute the defence it wishes to advance in relation to the “series of incidents” hypothesis of causation under s 3A(2) MACA.

43. In the course of argument, Mr Turnbull SC acknowledged that the available medical evidence to which I have referred accepts that the worker’s condition has been caused by a number of incidents. However, Mr Turnbull argued that the defendant is precluded from being able to obtain its own medical evidence having regard to what Dr Teoh has said and further says that the defendant may be forensically disadvantaged if those doctors whose opinions are available modify their position in the witness box, based on material that may be put before them. It is not apparent to me, however, what that material might be.

44. As I have outlined, Dr Teoh would appear to be in the medical minority in terms of his inability to draw conclusions from the accounts provided by the worker and the available medical evidence.

45. In the circumstances, I am not convinced that Dr Teoh has necessarily addressed the “series of incidents” question, though if, unlike other doctors, he cannot provide an opinion on causation, his is not necessarily the last word on the subject and the defendant has the option of exploring further expert opinion.

46. Nonetheless, if the evidence rests as it presently stands, the defendant has two medico-legal opinions which provide support for the worker’s condition being causally related to the subject accident and other incidents. The risk that medical experts might change their position when cross-examined, as Mr Turnbull SC suggests, is a forensic risk which must be faced in any case. However, it seems to me that a potential change of position by the doctors is a proposition based more in theory than probability. Realistically, a change of position is unlikely to occur as a result of records which are not available, and as outlined, the worker’s account is already established reasonably consistently in the available evidence.

47. The guiding principles in the determination of this application are to be found in the reasoning of the majority (Kiefel CJ, Gageler and Jagott JJ) in GLJ. As their Honours observed, at [3]:

“As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.”

48. And later, at [21]:

“Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided.”

49. In explaining the considerations at play, the High Court referred to the decision of the New South Wales Court of Appeal in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 and specifically the comments of Bell P (as his Honour then was) at [89]-[90], namely; “…the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility … will not mean that a fair trial cannot be obtained…”

50. The Court referred also to R v Edwards (2009) 83 ALJR 717; [2009] HCA 20 at [31], where the High Court said:

“Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.”

51. Again, the High Court in GLJ, when considering the implications of deficiencies in evidence, said, at [58] (citations omitted):

“The common law incorporates other principles in recognition of the fact that, in the adversarial system, cases are always decided within the evidentiary framework the parties have chosen and are often decided on incomplete evidence. The legal maxim that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” acknowledges “the problem that in deciding issues of fact on the civil standard of proof, the court is concerned not just with the question ‘what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision’”.”

52. Leaving aside whether the worker is accessible to the defendant, there are, as I have outlined, concessions by the plaintiff, treating records, medico-legal reports, and some employment records available to the defendant bearing on the series of incidents defence it seeks to mount. Whilst the matters of which the defendant complains may render the evidence imperfect and may create challenges for it, the defendant has not satisfied me that it is precluded from having a fair trial on this issue in the circumstances.

Employer Negligence

53. Otherwise, in support of the relief sought in this application, the defendant raises a subsidiary argument that the absence of documentation and accessibility to the worker causes it prejudice in the defences grounded in the proposition that the plaintiff failed to provide a safe system of work in terms of monitoring and responding to its workers’ exposure to trauma in the workplace.

54. This engages s 151Z(2)(e) WCA, which is pleaded in paragraph 13 of the Defence and possibly s 151Z(2)(c) WCA (to limit notional damages for the purposes of recovery under s 151Z(1)(d)), which is what I take to be the import of paragraph 11 of the Defence. It is unnecessary for present purposes to consider the intricacies of those sections. The simple point of the defences raised is that any right of recovery that may be established by the plaintiff is subject to reduction, having regard to the plaintiff’s responsibility as a joint tortfeasor.

55. These, of course, are defences involving positive allegations. The plaintiff makes the point that they do not involve matters relevant to the essential cause of action advanced by it against the defendant. It might also be questioned on what basis these positive allegations of employer negligence are made at this point, when the defendant’s complaint is couched in the following terms:

“It is necessary for its defence of this matter that the defendant obtain information to ascertain the plaintiff’s response to each traumatic incident to which its employee, the worker, was exposed and whether that accorded with reasonable industrial standards at the time and its own procedure for critical incident debriefing and the like, which were in force at relevant times” [4]

4. See paragraph 19 – DWS.

56. Nonetheless, for present purposes, the complaint might be understood as reflecting an inability to explore legitimate potential defences to the plaintiff’s claim.

57. On this issue, Dr Teoh was asked whether the plaintiff contributed to the development of the worker’s psychiatric condition through any failure to respond to specific events to which the worker was exposed (for example, by way of debriefing or critical incident support), particularly in the period 1984 to 1997.

58. Again, Dr Teoh was somewhat non-committal. In answer to the question posed, he expressed the view that it was difficult to comment and depends on whether the worker had reported emotional distress following the events and whether the plaintiff provided psychological intervention following that report. Nonetheless, Dr Teoh observes that, “It is good practice for organisations to provide general debriefing or critical incident support following major events, and specific intervention if a worker reports significant emotional distress”.

59. The evidence before me, which is not specifically adverted to by Dr Teoh, includes a report from Dr Ang, the treating psychiatrist, dated 22 November 2011, in which, as recited earlier, the doctor said:

“With regard to any previous predisposing or precipitating factors, although Mr Adams had been subject to witnessing dead and burnt bodies prior to the incident, it was only after this incident [the 2001 bushfire] that symptoms started manifesting themselves.”

60. Again, as earlier recited, Bill Warren, the worker’s psychologist, in his report dated 29 November 2011, provides direct evidence of the history provided by the worker, saying, “Greg and I covered a lot of material developing in his life and precipitated by a particularly traumatic fire back in 2001. As is not unusual in cases such as Greg’s this also reactivated emotions related to other traumatic experiences during his career as a fireman.”

61. Dr Rastogi also describes the worker experiencing anxiety following the bushfire in 2001 and says, “This was followed by witnessing two serious life-threatening incidents in 2004/2005 that aggravated his anxiety with panic attacks and adjustment disorder. He coped using alcohol as self-medication and managed to function with full responsibility seeking EAP help from time to time.”

62. If one gets to a consideration of the employer negligence defence, it follows that the series of incidents defence under s 3A(2) MACA was not made good and one is considering the assessment of damages resulting from the motor accident. It is perhaps questionable whether failings by the plaintiff in managing “each traumatic incident to which its employee, the worker was exposed”, particularly those between 1984 and 1987, would make it a joint tortfeasor for the purposes of ss 151Z(2)(c) and (2)(e) WCA, in the context of damages assessed in relation to the motor accident.

63. Nonetheless, leaving that to one side and considering the defendant’s arguments at their highest, one starts with the observation that, as reproduced in its written submissions, the defendant has, through the material produced to date, obtained some evidence as to the plaintiff’s prescribed procedures for responding to traumatic events. [5] A document headed “FRNSW Mental Health Support to Potentially Traumatic Events Program Summary” describes a tiered or stepped proactive approach to the provision of mental health support following a potentially traumatic event. I am unaware of the date of that document, however, on its face, it is relevant to the defences presently under consideration.

    5. See paragraph 16 – DWS.

64. The defendant will of course bear the onus of proof in advancing the employer negligence defence. However, if no further documents are produced by the plaintiff by way of subpoena, the discovery process, or otherwise, in relation to the provision of counselling or other appropriate intervention by the plaintiff, the defendant will be in a position to establish that, in the face of its requests, there is no evidence of such intervention being provided by the plaintiff to the worker. The defendant can qualify expert opinion accordingly.

65. As outlined earlier, there is a body of treating and medico-legal evidence that can be drawn on to pose questions to an expert as to the worker’s likely mental state at different times, whether and when he was likely manifesting symptoms and whether, grounded in assumptions based on the lack of evidence provided by the plaintiff, it can be said that the plaintiff took reasonable care to avoid unnecessary risk of psychiatric injury to the worker in the circumstances.

66. It is open to defendant’s expert to comment on both the adequacy of the plaintiff’s response in terms of reacting to the worker’s circumstances as well as whether the plaintiff was sufficiently proactive in terms of “good practice” and its own prescribed procedures.

67. It seems to me there is a real prospect that the absence of evidence that the plaintiff provided counselling or other appropriate intervention to the worker may operate to the plaintiff’s disadvantage.

68. Alternatively, if the plaintiff were to adduce evidence on this issue, the defendant’s expert could also comment on that evidence.

69. Again, Dr Teoh’s reluctance to comment, without grappling with the evidence and assumptions which are available on this issue, does not, in my view, realistically reflect the last word on the subject available to the defendant.

70. Otherwise, there remains a question, clouded with some uncertainty, as to whether the worker is beyond the defendant’s reach.

71. Ultimately, the state of the evidence on this issue may not be ideal, though that is hardly unusual in litigation. Nonetheless, as I have outlined, the defendant is not without options to explore and prosecute this potential aspect of its defence. Whilst the prevailing circumstances could operate to create challenges for both parties, having regard to the authorities discussed earlier, the defendant has not satisfied me that those challenges are such as to deprive the defendant of the opportunity of a fair trial.

Disposition

72. For those reasons, I decline to make the orders sought in the defendant’s notice of motion.

73. There is no reason, in my view, why costs ought not follow the event.

74. Accordingly, I make the following Orders:

1. The defendant’s notice of motion filed on 16 May 2024 is dismissed.

2. The defendant is to pay the plaintiff’s costs of the notice of motion.

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Endnotes

Decision last updated: 03 December 2024