Tsiragakis v JobCo Employment Services & Anor (Ruling)
[2024] VCC 407
•27 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-01497
| STELLIANI TSIRAGAKIS | Plaintiff |
| v | |
| JOBCO EMPLOYMENT SERVICES | First Defendant |
| and | |
| Second Defendant | |
| AMY MALLET |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2024 | |
DATE OF JUDGMENT: | 27 March 2024 | |
CASE MAY BE CITED AS: | Tsiragakis v JobCo Employment Services & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 407 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Duty of care – Motor vehicle accident caused by deliberate action of second defendant, friend and work colleague of plaintiff – Attendance by plaintiff at aftermath of accident – Psychiatric injury to plaintiff when learning of second defendant’s self-harm – Whether plaintiff is in recognised category of persons to whom duty of care is owed – Relevance of second defendant’s particular knowledge of plaintiff’s vulnerability - Reasonable foreseeability of harm to plaintiff
Legislation Cited: -
Cases Cited:Annetts & Anor v Australian Stations Pty Ltd [2002] HCA 35
Caffrey v AAI Ltd [2019] QLD 7
C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390
Donoghue v Stevenson [1932] AC 562
FAI General Insurance Co Ltd & Anor v Lucre (2000) 50 NSWLR 261
Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33
Homsi v Homsi (2016) 51 VR 694
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270
Jaensch v Coffey [1984] 155 CLR 549
King v Philcox (2015) 255 CLR 304
Mount Isa Mines v Pusey (1970) 125 CLR 383
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
Romeo v Conservation Commission of the Northern Territory (D584-1996) [1998] HCA 5
Shipard v Motor Accidents Commission (1997)70 SASR 242
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Tame v New South Wales (2002) 211 CLR 317
Vairy v Wyong Shire Council [2005] HCA 62
Judgment: No duty of care owed by second defendant to plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Andrew Ingram KC & | Slater & Gordon |
| For the Second Defendant | Jeremy Ruskin KC & David Oldfield | Solicitors for the Transport Accident Commission |
HER HONOUR:
The Preliminary Question
1The parties seek adjudication on a preliminary question:
Did the Second Defendant owe the Plaintiff a duty of care in the driving of her vehicle to avoid using it to inflict self-harm in the course of a suicide (the event) or an attempt at suicide which may result in psychiatric injury to her work colleagues and, in particular the Plaintiff, who may witness the aftermath of the event.
The Agreed Facts
2The following facts are agreed.
3The plaintiff was born in July 1985 and is 38 years of age. She commenced employment with the first defendant on 4 December 2012 as a Personal Helper in Person Helper and Mentor Services.
4In 2013, the second defendant commenced working in the same team as the plaintiff and the two became work colleagues and friends. The second defendant and the plaintiff socialised on occasion outside work hours. The second defendant attended the plaintiff’s ‘hens night’.
5In about September 2013, the plaintiff informed the second defendant that she had suffered from anxiety and depression in the past and been prescribed medication for these conditions. The plaintiff also informed the second defendant that the plaintiff’s mother had a long-term psychiatric condition and had in the past attempted suicide by driving a motor vehicle into a tree.
6In the approximately 6-8 weeks prior to 2 May 2014, the plaintiff was taking Fridays off work for self-care purposes.
7On 2 May 2014, at about 2:50pm, the second defendant attempted suicide by driving her motor vehicle into a power pole at the intersection of Atunga Court and Canterbury Road, Heathmont (“the intersection”).
8At approximately 3:00pm on 2 May 2014, the first defendant received a phone call informing it that the second defendant had been involved in a transport accident. The plaintiff’s supervisor, Mr Kevin Binding, asked the plaintiff if she would attend the accident scene with him. The plaintiff agreed to her supervisor’s request. Mr Binding then drove with the plaintiff to the intersection.
9As the plaintiff and Mr Binding were travelling to the intersection, the plaintiff observed an ambulance traveling in the opposite direction with the lights flashing and sirens operating.
10The plaintiff and Mr Binding arrived at the intersection at approximately 3:30pm. The second defendant’s vehicle was being loaded onto a tow truck. The plaintiff observed the vehicle was damaged. She also observed a power pole was damaged. Mr Binding and the plaintiff approached a police officer. A conversation then took place between Mr Binding, the plaintiff, and the police officer. During the conversation the police officer expressed the view that the second defendant intentionally drove her car in to the power pole. The plaintiff says she felt as if she was in complete shock.
11The event contributed to the plaintiff developing a psychiatric condition and/or aggravation of an underlying psychiatric condition.
The plaintiff’s submissions
12The plaintiff says that because she attended the aftermath of the accident and observed the ambulance leaving the scene and the second defendant’s damaged vehicle being towed, the “usual position” applies. The usual position, in the plaintiff’s submission, is that a road user owes a duty to another road user to take care to avoid causing them physical or psychiatric injury.
13The plaintiff relies on the decision of J Forrest J in Homsi v Homsi[1] (“Homsi”) and his Honour’s survey of authority dating back to Dulieu v White & Sons[2], that the common law recognises that a driver of a vehicle owes a duty to use reasonable and proper skill to avoid injuring others using the highway or property adjoining the highway, and that the duty can potentially extend to a duty to avoid causing a psychiatric injury.
[1](2016) 51 VR 694 at paragraph
[2] [1901] 2 KB 669
14Forrest J drew a distinction between immediate victims, being people who either directly perceive harm to themselves, or are in the immediate physical proximity to the tortious event, and secondary victims who do not witness the event but suffer psychiatric harm due to the negligent infliction of injury to a close relative.
15The plaintiff submits that, though on the facts of Homsi, drawing a distinction between classes of persons to whom a duty might be owed was a convenient mechanism for examining the existence of a duty, the relevance of “immediate” and “secondary” victims ought not be overstated. The plaintiff submits that the question of liability for psychiatric injury comes back to the “neighbourhood test” formulated by Lord Atkin in Donoghue v Stevenson[3]:
‘‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’’
[3] [1932] AC 562 at 580
16The plaintiff submits that the courts have found that the direct perception of a distressing event or its immediate aftermath is not always a requirement for recovery for psychiatric injury,[4] but that, relying on J Forrest J in Homsi:
“The common law recognised that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care”.[5]
[4]Tame v New South Wales (2002) 211 CLR 317 (“Tame”)
[5]Ibid at [61]
17The plaintiff submits that a driver can reasonably foresee that people who attend the scene or immediate aftermath of an accident he or she caused are people who might suffer psychiatric injury as a result of the accident. Those are people to whom the negligent driver owes a duty of care.
18The plaintiff submits that the law has moved on from the formulation by Deane J in Jaensch v Coffey[6] (“Jaensch”) that the duty does not apply where the tortfeasor is the primary victim of their own negligence. His finding that, where the tortfeasor negligently or deliberately inflicts self-harm, there is no duty of care on the tortfeasor to avoid the risk of psychiatric injury to another person, is no longer the position at law.
[6](1984) 155 CLR 549 at paragraph [33]
19In Homsi, J Forrest J accepted that a duty of care arises in an “immediate victim” case where there is a close or immediate physical proximity between the plaintiff and the tortious event occasioned by the defendant which gives rise to psychiatric injury, notwithstanding that the tortfeasor is also the primary victim.
20The plaintiff submits that, on the formulation of the test espoused in Homsi, it is apparent that a duty is owed by the second defendant to the plaintiff. The plaintiff was in the immediate vicinity of the aftermath of an accident occasioned by the second defendant’s lack of care. The second defendant therefore owed her a duty to avoid causing her psychiatric injury. It does not matter that the second defendant inflicted harm on herself.
21The plaintiff submits that this Court is bound to find that a duty of care exists based on the formulation of the duty in Homsi and that this is sufficient to dispose of the question in the plaintiff’s favour.
22However, the plaintiff also submits that the circumstances of this case take it outside the “mere by-stander” cases, which it conceded would not give rise to a duty.
23The plaintiff says that if the Court is not satisfied that the duty exists merely by reason of the plaintiff being in the immediate aftermath of the accident, then a pivotal issue is that the plaintiff was a colleague and friend of the defendant, the defendant knew the plaintiff’s psychiatric history, including that the plaintiff’s mother’s attempted suicide by driving a car into a tree, and that this ought to have put the second defendant in contemplation of the plaintiff as a person likely to be harmed by her actions.
24Further, the plaintiff submits the Court can infer that:
(a) it was reasonably foreseeable that the employer would be contacted by emergency personnel; and
(b) if so contacted, it was reasonably foreseeable that the employer would send someone to attend the scene of the accident shortly thereafter; and
(c) it was reasonably foreseeable that the plaintiff, as a friend of the second defendant, would be asked to attend the scene; and
(d) in attending the scene of the accident would witness the aftermath of the accident.
25The plaintiff submits that an employee or colleague is a recognised category of person to whom a duty has been found to be owed, and witnessing harm to a co-worker is a recognised category of psychiatric harm.[7]
[7]Mount Isa Mines v Pusey (1970) 125 CLR 383 (“Pusey”)
26The plaintiff says there are no reasons of law or policy that militate against a finding that a suicidal person owes a duty to others in the manner of their suicide or suicide attempt. Nor can the second defendant’s subjective state of mind be relevant to the existence of a duty. It could not be the case that a tortfeasor does owe a duty to drive carefully so as not to cause self-harm, but not if the tortfeasor is in a particular state of mind.
27To the extent that the law does not prevent a person from causing harm to themselves, the plaintiff submits that the law recognises that, while an individual might be entitled to cause harm to themselves, they are not entitled to cause harm to others in the execution of that self-harm. The fact that some harm may unavoidably be caused, whatever the means of committing or attempting suicide, goes to a question of breach, not duty.
28The plaintiff submits the caution expressed by the High Court in Sullivan v Moody[8] in determining duty questions by using policy considerations ought to be applied in this case. There is no evidence that a finding that a duty exists would result in an opening of the floodgates and the Court cannot be satisfied that the indeterminacy of claims would necessarily result in more claims.
[8] [2001] HCA 59
29The plaintiff says that, while the Court may not recognise a duty to prevent someone else from committing self-harm, for example in the circumstances of C.A.L. No 14 Pty Ltd (t as Tandara Motor Inn) v Motor Accidents Insurance Board ( (“C.A.L”) [9], there was no duty on the hotel barman to prevent the deceased from driving his car while intoxicated, this cannot be conflated with a duty imposed on the tortfeasor to take care in their own actions so as to prevent harm to another.
[9] C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390
30To the extent that the imposition of such a duty imposes a restraint on the autonomy of the individual and the individual’s “entitlement” to self-harm, the plaintiff points out that the whole of tort law imposes restraints on the autonomy of the individual and that this is not a persuasive foundation for denying the existence of a duty.
The second defendant’s submissions
31The second defendant says no duty exists and to find a duty in this case would be to significantly extend the category of cases in which courts have imposed a duty.
32The court cannot merge the concept of duty and breach and will fall into error if it attempts to formulate a duty by reference to the breach.
33The second defendant says in this case the plaintiff is attempting to retrospectively formulate a duty that is overly specific – that because the plaintiff’s mother attempted suicide in a particular manner, the second defendant owed the plaintiff a duty not to attempt suicide in the same, or similar manner, because to do so would cause psychiatric harm to the plaintiff.
34The law recognises no such specific duty. The duty must be formulated by reference to broad categories of persons.
35The duty is not formulated as a duty by the second defendant to avoid causing injury to the plaintiff in the aftermath of an accident. Nor could the duty be formulated in this way, as such a duty would capture all road users, passers-by, and mere by-standers who were in proximity to the accident or its aftermath.
36Certain categories of persons in proximity to an accident might be owed a duty. For example, a person standing by the pole which was hit by the second defendant, and who perceived themselves to be in harms’ way might have a claim. An emergency services officer might be owed a duty, based on the reasoning in Caffrey v AAI Ltd [10](“Caffrey”) because a negligent driver would know that such a person would be likely to attend the scene of an accident. In that case the police officer attended the immediate aftermath of an ultimately fatal car accident, in which the deceased had driven into a tree whilst intoxicated.
[10] [2019] QLD 7
37However, in the circumstances of this case, the plaintiff attended the scene at a distance in both time and space. The accident occurred some 30 minutes
38drive from the plaintiff’s workplace and her attendance at the scene was not part of her ordinary work duties.
39She observed the ambulance, the second defendant’s damaged vehicle and damage to a power pole. The second defendant was not present at the scene when the plaintiff attended. She did not perceive harm to herself. She did not see the second defendant at the scene of the accident, and did not witness an aftermath that was objectively distressing.
40The defendant submits that Homsi does not assist the plaintiff. Taking a line from the judgment and suggesting it stands for the proposition that a duty is always owed by a negligent driver to those in immediate proximity to an accident, ignores the analysis undertaken by J Forrest J of the cases where a duty of care has been recognised.
41Reasonable foreseeability of injury is necessary but not sufficient. There must be something else that the law recognises as relevant to the imposition of a duty that is not compromised by policy considerations.
42The relationship between the plaintiff and the second defendant, as friends and work colleagues, is not in a category of relationship that has been found to impose a duty.
43The second defendant says a finding of duty in this case would be a novel duty and this requires a consideration of questions of policy.
44The second defendant says the law does not recognise a duty to control ones’ actions so as to prevent self-harm,[11] and gives primacy to personal autonomy.
[11]Stuart v Kirkland-Veenstra (2009) 237 CLR 215
45A duty on the second defendant would impose an unreasonable burden on the second defendant and would require her to have in mind that the plaintiff might attend the aftermath of the suicide attempt and suffer a psychiatric injury and thus not attempt suicide.
46A finding of duty in this case would potentially apply far beyond this case or other cases involving car accidents. A “knock on” effect would be that any person attending the aftermath of any event in which self-harm has occurred or been attempted would be owed a duty. Indeterminacy is an additional reason which militates against the imposition of a duty.[12]
[12]Hunter and New England Local Health District v McKenna (2014) 253 CLR 270 at paragraph [18]
Analysis
47The plaintiff characterises the duty she seeks to impose on the second defendant as a simple duty of a road user to drive her vehicle in such a way as to avoid causing harm to other road users. In Lord Atkin’s formulation, the second defendant owed a duty to avoid an act that would, reasonably foreseeably, cause injury to her neighbour.
48However, this formulation begs the question, who, at law, is the second defendant’s neighbour?
49The devil is, as always, in the detail. In this case the duty must encompass a duty to avoid psychiatric harm to a person who did not perceive the event but witnessed some of the aftermath of the event. It is important to examine the circumstances in which such a duty has been found.
50The authorities provide some guidance, though there is no suggestion that the categories of cases in which a duty exists is closed. Duties have been imposed in the following circumstances where the injured person did not perceive any direct threat to themselves:
(a) On a driver who caused an accident where a person came upon the aftermath of the accident involving a close family member; (“Jaensch”)
(b) On a driver who negligently caused his own death by driving into a truck, resulting in a psychiatric injury to the truck driver; (FAI General Insurance Co Ltd & Anor v Lucre[13]; “Lucre”),
(c) On a driver who, while intoxicated, inflicted self-harm and where a police officer attending the scene provided assistance and suffered psychiatric injury; (Caffrey)
(d) On an employer where an employee witnessed the immediate aftermath of an accident involving a co-worker and was directly involved in assisting that co-worker who later died; (Pusey)
(e) On an employer whose negligence contributed to the death of a person and whose parent, spouse or child subsequently heard of the death and suffered an injury; (Tame, Gifford v Strang Patrick Stevedoring Pty Ltd[14] “Gifford”)
[13] (2000) 50 NSWLR 261,
[14] [2003] HCA 33
51The cases can be roughly categorised as follows:
(a) A duty may arise where the plaintiff is in proximity to a particularly traumatic aspect of the accident or its aftermath (Pusey; Caffrey; Lucre; Shipard v Motor Accidents Commission[15] “Shipard”)
(b) A duty may arise where there is a close family relationship between the victim of the negligent act and the plaintiff (Tame; Gifford; Jaensch)
[15] (1997)70 SASR 242
52A duty may exist where there is both a close family relationship and a proximity to the aftermath, albeit not to an objectively distressing aftermath. (Jaensch; King v Philcox[16] “Philcox”, albeit that in Philcox the claim was defeated by the operation of legislative provisions).
[16] (2015) 255 CLR 304
53It is also instructive to examine the cases where a duty has not been imposed:
(a) Where the plaintiff has a close family relationship to a negligent driver who inflicts self-harm, but is not proximate to the accident; (Homsi)
(b) Where a person has failed to prevent another person committing self-harm that caused a psychiatric injury to the plaintiff; (Kirkland-Veenstra; C.A.L)
(c) Where a defendant has failed to prevent another person causing harm to the primary victim, which in turn caused psychiatric injury to the plaintiff. (Hunter and New England District Hospital v McKenna[17];“Hunter”)
[17] [2014] HCA 44
Proximity to the aftermath of an accident
54J Forrest J distinguished the circumstances of Homsi from those in Tame’s companion case, Annetts & Anor v Australian Stations Pty Ltd[18](“Annetts”). Both involved a parent who was not proximate to the accident, who suffered a psychiatric injury arising from the death of a son. In Annetts, the son’s employer was found to owe a duty to the parents of its employee. In Homsi the son negligently caused his own death. J Forrest J found that the son did not owe his mother a duty of care. The proposed duty formulated on behalf of the son was a duty to prevent the infliction of self-harm and thereby to avoid causing psychiatric injury to a person to whom he or she should have reasonably had in contemplation. His Honour found that this formulation was postulated at too high a level of abstraction and did not appropriately identify the persons to whom the duty was said to be owed. He considered the appropriate formulation of the question was whether the son owed his mother a duty of care in driving his vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives, including his mother.
[18] [2002] HCA 35
55His Honour found that no duty of care existed because there was no authority in this country which supported such a proposition and, in any event, there are powerful policy grounds for refusing to recognise such a duty.
56The court has not imposed a duty on a person who inflicts self-harm, to persons not proximate to the accident or its aftermath. In Annetts and Gifford the duty was imposed on the employer of the primary victim, not on the victim.
57In Homsi his Honour recognised a distinction between the mother hearing about the accident, and a situation in which the mother was in direct proximity to the accident or its aftermath.
58It is his Honour’s comments in relation to the proximity to the accident that the plaintiff relies on. However, it is apparent that mere proximity is not enough.
59I am not persuaded that merely being at the aftermath of this accident was sufficient to establish the existence of a duty. The second defendant does not owe a duty to every road user who saw the ambulance, tow truck and damaged pole, and had a conversation with a police officer at the scene. That duty would encompass an indeterminate number of people. In that sense, merely being present at the aftermath of the accident does not make a person a “neighbour” in the test propounded by Lord Atkin.
60For example, it is reasonably foreseeable that the sight of an ambulance with lights and sirens in operation could be distressing to those with a history of trauma, and could cause an aggravation of an underlying psychiatric condition in a susceptible person. This does not mean that the tortfeasor who, by inflicting self-harm, necessitated the use of the ambulance, owes that susceptible person a duty of care. Reasonable foreseeability of harm is not enough.
61In Homsi the relevance of proximity was in relation to the duty the son owed to his mother. The mother was not proximate to the accident. If she had been, then as both a mother and a witness to the accident, she may have fallen into a class of persons to whom the son owed a duty, notwithstanding that he inflicted self-harm.
62I accept the plaintiff’s submissions that the “entitlement” an individual has to inflict self-harm does not absolve an individual from owing a duty to others in every circumstance. The defendant conceded that inflicting self-harm in a manner that exposed others to danger, for example driving into on-coming traffic, would be a situation in which the law would recognise the tortfeasor owed a duty.
63However, that is not analogous to this case.
Is the plaintiff more than a “mere by-stander”?
64In the present case, the plaintiff concedes that a “mere by-stander” to the accident or its aftermath would not be owed a duty. Something more is required. In Lucre what distinguished the plaintiff from the “mere by-stander” was the “immediacy of his involvement in the accident that caused the death that caused the psychiatric injury. That immediacy is quite obvious in both time and space.”[19]
[19] at [25]
65In Lucre the plaintiff’s vehicle contributed to the death of the deceased, who had negligently driven into the plaintiff’s truck. That “distinguished the respondent from the by-stander, even one who was a passenger in his truck”.[20]
[20] At [26]
66The something more might be, as postulated in the case of Homsi, the closeness of the relationship between the injured party and the plaintiff, combined with the proximity to the accident (as was the case in Jaensch), or the particularly distressing nature of the accident itself (such as in Caffrey).
Was the plaintiff’s relationship to the second defendant in a category of relationships which the law recognises as giving rise to a duty of care?
67In order for the plaintiff to be considered outside the category of a mere by-stander, the plaintiff relies on the particular circumstances of her relationship to the second defendant.
68Factual considerations about the nature of the relationship between parties may be relevant to the question of whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury. The relationship may be relevant to whether a duty does or may exist[21].
[21] Tame per Gleeson CJ at [18]
69In this case the relationship is said to be that the parties were “work colleagues”, though in the agreed facts it is put somewhat higher as being friends and colleagues. There is no authority that I am aware of, or that I have been taken to, that would establish a duty on a driver to take reasonable care in the driving of a vehicle so as to avoid causing psychiatric harm to a friend or colleague, because of the closeness of their relationship as a friend or colleague. The Courts, and sometimes the legislature, have traditionally confined the category of relationship where a duty is owed by a tortfeasor to spouses, parents and children[22].
[22] see for example Annetts; Gifford; the discussion of legislative provisions in Philcox at [15 – [18] and discussion at [29] “to say a duty of care is owed to a parent, spouse, child, fellow employee or rescuer of a victim is not to say that it cannot be owed to the sibling of a victim”).
70Imposing a duty on a person to avoid causing harm to a friend or colleague would, in my view, be a novel duty of care and I would have to be powerfully persuaded that such an expansion was appropriate and there were no policy considerations militating against such a duty. I am not so persuaded.
71The number of people who are close relatives is necessarily finite. Friends and colleagues comprise a vague and indeterminate number of people such that the difficulty in identifying to whom the duty is owed is apparent. What degree of intimacy is required to give rise to a duty? Is attendance at a hen’s night, for example, evidence of a close relationship? These are unanswerable questions.
72The existence of the duty cannot depend on the evidence at trial as to the closeness of the bond between the plaintiff and the second defendant. The duty must encompass a category of persons that is sufficiently identifiable that the tortfeasor ought have them in contemplation at the time of committing the tort. The question as formulated is whether the second defendant owed a duty in the driving of her vehicle to avoid using it to inflict self-harm which may result in psychiatric injury to her work colleagues.
Was the aftermath of the accident sufficient to give rise to a duty
73The law recognises that a duty can be owed to work colleagues in some situations. For example, an employer may owe a duty to a colleague of an injured worker who witnesses a distressing event, such as in Pusey. But the duty in that case was said to be that “an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen. So much I think is within the ordinary experience of people who work with electric current, particularly electric current at a high voltage”[23].
[23] at [389]
74It is not the case that every injury, observed by a fellow employee, would give rise to a duty. It would be unlikely, for example, that an employer owes a duty to a worker who sustains a psychiatric injury arising from a fellow employee suffering a soft tissue shoulder injury after lifting a heavy box. It was the particularly distressing nature of the accident, and the foreseeability that such an accident, if it occurred, would cause a colleague to suffer an injury, that gave rise to the duty in Pusey.
75The fact that, in this case, the plaintiff was a friend and colleague who witnessed the aftermath of the second defendant’s accident does not take her sufficiently outside the category of mere by-stander, to give rise to a duty. Nor are the circumstances of the “aftermath” sufficient to put the plaintiff into the position of, for example, the truck driver in Lucre and Shipard, or the police officer in Caffrey. This was not an aftermath that was objectively traumatic or distressing, and the plaintiff was not a rescuer.
Does the second defendant’s knowledge of the plaintiff’s vulnerability give rise to a duty?
76The plaintiff says it is not merely that she was a friend and colleague of the second defendant, but the particular information she had imparted to the second defendant that gives rise to the duty.
77Formulating the duty in this way essentially creates a duty of care owed by the second defendant to an individual, rather than to a category of persons. The duty would be that the second defendant, knowing of the plaintiff’s psychiatric vulnerability and in particular that the plaintiff’s mother had attempted suicide in a motor vehicle, owed the plaintiff a duty to avoid attempting suicide in a similar fashion, where the plaintiff may witness the aftermath of the event.
I accept the defendant’s submission that framing the duty in this way falls foul of the requirement not to frame the duty of care too narrowing in retrospect. This carries the vice of obscuring the true nature of the duty and merging questions of duty and breach. As set out by Hayne J in C.A.L:
“Because the duty relied on in this court was framed so specifically, it merged the separate inquiries of duty of care and breach of duty. The merger that resulted carried with it the vice of retrospective over-specificity of breach identified in Romeo v Conservation Commission (NT) and in the driving cases of Vairy v Wyong Shire Council, and Road and Traffic Authority (NSW) v Dederer. The duty alleged was framed by reference to the particular breach that was alleged and thus by reference to the course of events that had happened. Because the breach assigned was not framed prospectively, the duty too, was framed retrospectively, by too specific a reference to what had happened. These are reasons enough to reject the formulation of duty advanced in argument in this court.” [24]
[24] At [68]
78In Kuhl v Zurich Financial Services Australia Ltd [25]the court recognised the “inherent danger” in looking first to the cause of the damage and what could have been done to prevent it, and then determining the duty, its scope and content. Such an approach runs the risk of predetermining the outcome before considering whether the duty exists.
[25] [2011] HCA 11 at [19] – [20
79In the present case, determining that the duty the second defendant owed to the plaintiff arose because of her particular knowledge of the plaintiff’s history predetermines the outcome. If the plaintiff is a person the second defendant ought to have in contemplation prior to deciding to inflict self-harm, because of the particular knowledge the second defendant has about the plaintiff, the outcome – that the defendant has breached that duty - is a foregone conclusion. The formulation of duty in this way required that, to avoid breaching the duty said to be owed, the second defendant should either not have inflicted self-harm, or chosen a different manner of inflicting self-harm so as to avoid the risk to the plaintiff. If the duty exists as postulated in this way, it is the breach that gives rise to the duty. This is impermissible.
Was the plaintiff’s injury reasonably foreseeable to the second defendant?
80Finally, in the formulation put by the plaintiff, that is, that the duty is owed to work colleagues and in particular the plaintiff “who may witness the aftermath of the event”, I am not persuaded that it was reasonably foreseeable that work colleagues or the plaintiff would witness the aftermath of the accident.
81The plaintiff pleads:
Paragraph 3C
At all material times the second defendant owed the plaintiff a duty of care it being reasonably foreseeable to the second defendant that in the event that she attempted suicide using a motor vehicle supplied by the first defendant and in the course of her employment, that the plaintiff would be instructed and/or requested to attend the accident scene.
and
Paragraph 3D
The second defendant knew or ought to have known that in the event she survived her attempted suicide, that once she identified her employer emergency personnel would likely contact her employer and that the plaintiff or some other representative or representatives of the first defendant would attend the scene of the motor vehicle accident.
82The plaintiff submits that the court can infer that the fact that the employer was notified of the accident within about ten minutes of the accident occurring, means it was reasonably foreseeable that this would occur.
83I do not accept that such an inference can be drawn. I have no knowledge of the circumstances in which the employer was notified, but it is not apparent to me that an employer would be the likely party notified by emergency services personnel in the event of an accident.
84Even if the employer is a party that is likely to be notified, I do not accept that the logical consequence of such a notification is that a representative, in this case Mr Binding, would attend the scene of the accident. It is not apparent to me that an employer could provide any useful assistance or meaningful information at the scene of the accident. It is not apparent that attendance at the scene of an accident of one’s employees is a normal obligation on an employer. It is possible that, if a work car was involved in an accident, the employer would be contacted for authorisation for towing or removal of the vehicle, but that would not obviously, or foreseeably, require attendance at the scene of the accident. In this case, the car was already loaded for towing at the time the plaintiff attended, so attendance at the scene by a representative of the employer was apparently not a requirement. It is not known to me why Mr Binding attended the scene of the accident.
85Finally, I do not accept that it was reasonably foreseeable to the second defendant that, in the event that she survived her suicide attempt and identified her employer, the plaintiff in particular would attend the scene. It may be foreseeable that, in the event of an accident, the plaintiff might visit the second defendant at hospital or at home. I do not accept that the particular sequence of events that occurred in this case were reasonably foreseeable to the second defendant, or ought to have been in her contemplation.
86The fact that they occurred does not render them foreseeable. To that extent I consider the sequence of events that unfolded is “far-fetched” or “fanciful”.
87For the avoidance of doubt, my finding that the plaintiff’s attendance at the scene of the accident was not foreseeable to the second defendant is the final element in my finding that no duty exists and comes at the end of a metaphorical chain of impediments to the existence of a duty of care. Even if the plaintiff’s attendance at the scene were reasonably foreseeable, or if the agreed facts provide insufficient information to determine whether or not her attendance was reasonably foreseeable, I am satisfied on the other bases set out above that no duty exists. That is, the plaintiff’s proximity to the aftermath is insufficient to take her beyond the category of a by-stander, her status as a friend and work colleague does not elevate her into the class of persons to whom the law would recognise the second defendant would owe a duty, and the particular knowledge the second defendant had about the plaintiff’s history conflates breach with duty and would give rise to an overly specific duty of care.
Is the second defendant’s state of mind a relevant consideration?
88I do not consider that the second defendant’s objective state of mind, as a person who was or may have been suicidal at the time of the accident, is a relevant consideration in determining the existence of a duty of care. I cannot see a way in which the court could sensibly determine what a “reasonable” suicidal person ought to have in contemplation and am not persuaded that the test for the second defendant departs from the general test expounded by Lord Atkin.
Did the second defendant owe the plaintiff a duty?
89Accordingly, the answer to the question “Did the second defendant owe the Plaintiff a duty of care in the driving of her vehicle to avoid using it to inflict self-harm in the course of a suicide or an attempt at suicide which may result in psychiatric injury to her work colleagues and, in particular the Plaintiff, who may witness the aftermath of the event?” is no.
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