Vasko Petrovski v Serco Sodexo Defence Services Pty Ltd and Commonwealth of Australia
[2013] ACTSC 242
•6 December 2013
VASKO PETROVSKI v SERCO SODEXO DEFENCE SERVICES PTY LTD AND COMMONWEALTH OF AUSTRALIA [2013] ACTSC 242 (6 December 2013)
NEGLIGENCE – Plaintiff suffered pure mental harm – plaintiff employed by first defendant and performing driving duties for Australian Defence Force for which the Commonwealth was responsible – witnessed a simulated motor vehicle accident – mass casualty exercise – duty owed – employment relationship – breach of duty – failure to give adequate and proper warning of what to expect – liability – assessment of damages – non-economic loss – economic loss – capacity to gain employment.
Civil Law (Wrongs) Act 2002 (ACT) ss 32, 33, 34, 35, 42, 43, 44, 45, 46, 47
Civil Liability Act 2002 (NSW) ss 16, 30
Judiciary Act 1903 (Cth) s 64
Workers Compensation Act 1951 (ACT) ss 36A, 36B, 182C, 182D
Breavington v Godleman and Others (1988) 169 CLR 41
Browne v Dunn (1893) 6 R 67
Fox v Wood (1981) 148 CLR 438
Neilson v Overseas Projects Corporation of Victoria Ltd and Another (2005) 223 CLR 331
Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491
No. SC 70 of 2011
Judge: Besanko J
Supreme Court of the ACT
Date: 6 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 70 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:VASKO PETROVSKI
Plaintiff
AND:
SERCO SODEXO DEFENCE SERVICES PTY LTD (ABN 780 610 676 78)
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
ORDER
Judge: Besanko J
Date: 6 December 2013
Place: Adelaide via video link to Canberra
THE COURT ORDERS THAT:
The plaintiff file and serve proposed minutes of order reflecting the conclusions in these reasons within seven days.
This is a claim by the plaintiff for damages for mental harm against two defendants. The incident causing the mental harm occurred on 27 February 2008.
The plaintiff’s case
The plaintiff was born on 20 March 1958. On 27 February 2008 he was employed by the first defendant, Serco Sodexo Defence Services Pty Ltd (“Serco Sodexo”), as a driver. He had a bus licence. The plaintiff’s immediate supervisor at that time was a Mr Ian Corey. In one of the reports put before the Court, Mr Corey is described as the operations manager at Serco Sodexo. Mr Matthew Quinn is described as the risk, environment and heritage manager at Serco Sodexo and the rehabilitation co-ordinator. Mr Gary Green is described as the regional transport manager at Serco Sodexo.
On 27 February 2008, the plaintiff was performing driving duties for the Australian Defence Force (“ADF”) for whom the Commonwealth is liable. That was pursuant to a contract between Serco Sodexo and the ADF.
In February 2008 the ADF carried out an exercise which it called “Exercise Stretton”. Exercise Stretton is described below. Those persons involved in Exercise Stretton who are relevant to a consideration of the plaintiff’s claim are Sergeant Harton, Captain French and Captain Catherine Crane. I have and will continue to refer to those persons by reference to their rank in February 2008. Sergeant Harton was the assistant co-ordinating sergeant who stepped into the principal role when the co-ordinating sergeant was called away at short notice. Captain French was the officer in command and he wrote a post activity report in relation to Exercise Stretton. That report described the activities carried out, where they were carried out and what they achieved. Captain Crane was described in the evidence as an observer/trainer with the cadets.
In his report Captain French stated that Exercise Stretton was carried out between 21 and 29 February 2008 and that it was conducted at the Marrangaroo Training Area, the Blue Mountains National Park and the Newnes State Forest. As I understand it, the Marrangaroo Training Area is a relatively short distance from Lithgow. Captain French described the purpose of Exercise Stretton in the following terms:
The purpose of Ex ST 01/08 was to practice 1 Class cadets in the challenges of strong and effective leadership, reinforce fear-management techniques for dealing with personal stress, and develop individual character, confidence, leadership and teamwork.
This exercise was further designed to achieve the assessment requirements of CLO 2.3 Develop and maintain the group.
The exercise involved the teams responding from the Marrangaroo Training Area to various areas throughout the Blue Mountains National Park and the Newnes State Forest in order to conduct search and rescue operations. One such operation was a simulated motor vehicle accident which was also referred to as a mass casualty exercise. It is described in Captain French’s report in the following terms:
This task involved a team responding to a search and rescue. On route the team was stopped and briefed on their involvement in a vehicle accident. The team was then made up with Simex and butchers supplies to simulate a two car collision. Subsequent teams then responded to this situation as required. The situation saw the teams dealing with the complexities of mass casualties beyond their means, communications with a higher HQ and multiple agencies. Additional complexity was added through the use of a civilian police role player, JPAU media detachment and uncooperative role players. This activity achieved a good outcome above its resource input and should be maintained for future Ex ST.
The plaintiff was one of a small number of drivers provided to the ADF by Serco Sodexo for the purpose of Exercise Stretton. The duty of the drivers was to drive the cadets to and from the various operations. The drivers stayed in a caravan park in Lithgow.
On the evening of 27 February 2008, the plaintiff drove a group of cadets in a small bus to an area he described as a picnic area. He then drove back to base to collect a second group of cadets. He drove back to the picnic area where he witnessed a scene which he described as a “massacre”. In fact, the first group of cadets were role playing and the second group were those involved in the rescue operation. The intention of the organisers of the activity was to make the “accident” scene as realistic as possible. It is not clear on the evidence what knowledge the second group of cadets had prior to their arrival at the simulated accident scene. There was evidence from Sergeant Harton that civilian drivers were used so as not to alert the second group of cadets to the fact that they were about to encounter something unusual.
The plaintiff’s case is that he suffered severe nervous shock as a result of what he saw at the scene and that he developed a recognised psychiatric illness. His case is that he was not warned by either Serco Sodexo or the ADF of what to expect when he returned to the simulated accident scene on the second occasion. His case is that he was unable to work as a result of the mental harm which he had suffered. He received workers compensation insurance which was paid by Serco Sodexo’s workers compensation insurer at the time, QBE Insurance (Australia) Ltd (“QBE”). Ms Maree Cummins was a rehabilitation consultant engaged by QBE to facilitate the plaintiff’s return to work. The plaintiff’s case is that he has been unable to return to work despite efforts to do so. The plaintiff’s right to workers compensation was commuted in August 2010 by a payment of $110,000.
The plaintiff claims damages against his employer, Serco Sodexo, and the Commonwealth. He claims that he was performing work for the ADF at the time he suffered the mental harm and that the Commonwealth is responsible for the conduct of the ADF.
The incident occurred in New South Wales. At the time, the plaintiff’s base was at the Royal Military College, Duntroon in the Australian Capital Territory. As a driver he was required to drive people to a variety of locations in New South Wales, Victoria and Queensland and he drove a range of military vehicles from cars, four wheel drives, trucks and buses.
The parties adopted a common position on the law to be applied to the plaintiff’s claims. That position was that in relation to the plaintiff’s claim against Serco Sodexo, the relevant law is the law of the Australian Capital Territory (“ACT”) and in relation to the plaintiff’s claim against the Commonwealth, the relevant law is the law of New South Wales (“NSW”). I think that is the correct position.
The plaintiff was a “worker” and Serco Sodexo an “employer” under the Workers Compensation Act 1951 (ACT). The relationship between them was an employment relationship within the terms of that Act. The Act uses a concept of a “Territory or State of connection” (s 36A). Section 36B(1) provides that compensation under the Act is only payable if the ACT is the Territory or State of connection. Section 36B(2) provides that the fact that a worker is outside the ACT when injured, does not prevent compensation being payable under the Act if the ACT is the Territory or State of connection. Section 36B(3) provides as follows:
(3) A worker’s employment is connected with –
(a) the Territory or State where the worker usually works in the employment; or
(b) if no Territory or State, or no single Territory or State, is identified by paragraph (a) – the Territory or State where the worker is usually based for the purposes of the employment; or
(c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b) – the Territory or State where the employer’s principal place of business in Australia is located.
In this case, there is no Territory or State where the plaintiff usually works in his employment, and the relevant criterion is where the plaintiff is usually based for the purposes of his employment. The plaintiff is usually based for the purposes of his employment in the ACT.
Section 182C of the Workers Compensation Act 1951 (ACT) provides a definition of a “damages claim”. There is no dispute between the parties that the plaintiff’s claim falls within the definition. The significance of that fact is that s 182D provides that the substantive law of the Territory or State of connection (in this case, the ACT) governs whether or not a damages claim can be made in relation to a work related injury to a worker, and if a damages claim can be made, the determination of that claim.
The substantive law of the ACT is the common law of negligence as modified and varied by the Civil Law (Wrongs) Act 2002 (ACT) (“ACT Wrongs Act”). It does not prevent the plaintiff from making a claim for damages.
I was referred to a number of sections in the ACT Wrongs Act. Section 32 provides that mental harm to a person means impairment of the person’s mental condition and that pure mental harm to a person means mental harm to the person other than consequential mental harm. Consequential mental harm to a person means mental harm to the person that is a consequence of bodily injury to the person. The plaintiff’s case involves pure mental harm. Section 33 provides that in an action for personal injury, the plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock. Section 34(1) provides as follows:
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 34(2) outlines some of the matters relevant to the “circumstances of the case” for the purposes of s 34(1) in the case of pure mental harm. It is not necessary for me to set them out or to discuss them because neither defendant contended that it did not owe a duty of care to the plaintiff. The dispute between the parties was as to whether there had been a breach of duty.
Section 35 provides that damages must not be awarded for pure mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness. A number of medical reports were tendered in evidence and there was no dispute between the parties that prior to the incident, the plaintiff was a person of normal fortitude and that after the incident, the plaintiff suffered from a recognised psychiatric illness.
Other sections of the ACT Wrongs Act to which I was referred included s 42 (standard of care), s 43 (nature of risks in relation to which a failure to take precautions may be negligent), s 44 (other principles), s 45 (causation), s 46 (onus of proof in relation to causation) and s 47 (contributory negligence). Again, I do not need to refer to these sections in detail because of the way the issues in the case were defined by the parties. The issue on liability was whether there had been a breach of the duty of care and that, in turn, as articulated by the plaintiff’s counsel in opening, albeit at a fairly general level, was whether the plaintiff had been warned what to expect when he came upon the simulated accident scene. The plaintiff did submit in his written submissions that the first defendant breached its duty of care by failing to ensure that a military driver rather than the plaintiff was used, but it is fair to say that the gravamen of the plaintiff’s case against both defendants was a failure to warn.
The liability of the Commonwealth of Australia to the plaintiff is governed by the law of NSW. That follows from s 64 of the Judiciary Act 1903 (Cth) and the decisions in Breavington v Godleman and Others (1988) 169 CLR 41, Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491 and Neilson v Overseas Projects Corporation of Victoria Ltd and Another (2005) 223 CLR 331. The relevant law is the common law as modified and varied by the Civil Liability Act 2002 (NSW). There are many similarities between the Civil Liability Act2002 (NSW) and the ACT Wrongs Act. However, there are three differences which may be conveniently noted at this stage.
Section 16 of the Civil Liability Act 2002 (NSW) provides for a cap or limit on the damages which may be awarded for non-economic loss. The parties were agreed that the relevant maximum amount for the most extreme case was $535,000. It is necessary to characterise the case before the Court as a percentage of the most extreme case. Having done that, the table then provides for a percentage to be applied to the maximum amount. For example, the plaintiff claims here that this case is 32% of the most extreme case giving rise to 30% of $535,000 or $160,500. If by contrast the appropriate characterisations of the plaintiff’s case is 25% or 30%, then the relevant figures are 6.5% of $535,000 or $35,000 (rounded up), and 23% of $535,000 or $123,000 (rounded down) respectively.
Section 30 of the Civil Liability Act 2002 (NSW) is in the following terms:
30Limitation on recovery for pure mental harm arising from shock
(1)This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant.
(2)The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
(3)Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.
(4)No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.
(5)In this section:
close member of the family of a victim means:
(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
spouse or partner means:
(a) a husband or wife, or
(b) a de facto partner,
but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.
The Commonwealth submitted that s 30 of the Civil Liability Act 2002 (NSW) precluded the plaintiff from recovering damages from it. I do not accept that submission. The plaintiff’s claim is for pure mental harm, however, it does not arise from mental or nervous shock in connection with another person being killed, injured or put in peril by the act or omission of the ADF. None of those participating in the exercise were killed, injured or put in peril by any act on the part of the ADF.
Finally, the actuarial tables for assessing future losses under the Civil Liability Act 2002 (NSW) are the 5% tables whereas those applicable under the ACT Wrongs Act are the 3% tables.
Counsel for each of the defendants told me that if they were each held liable they had agreed apportionment between them of 25% for Serco Sodexo and 75% for the Commonwealth.
Serco Sodexo’s case
Serco Sodexo did not call any oral evidence on the issue of liability. It relied on the evidence called by the Commonwealth. As I have said, it did not dispute that it owed a duty of care to the plaintiff. However, its case was that the plaintiff had received an adequate and proper warning of what to expect on the evening of the incident.
With respect to the issue of quantum, broadly speaking, Serco Sodexo’s case was that the plaintiff’s symptoms and resulting disabilities were nowhere near as severe as he made them out to be.
The Commonwealth’s case
The Commonwealth did not dispute that it owed a duty of care to the plaintiff. However, its case was that that duty had been discharged. Sergeant Harton had provided an adequate and proper warning to the drivers including the plaintiff of what to expect on the evening in question.
The Commonwealth’s case with respect to the issue of quantum was similar to that of Serco Sodexo.
The Evidence in the case
The plaintiff gave evidence and he tendered a number of medical reports. Only Dr J Phillips was required for cross-examination and he gave his evidence by telephone.
The first defendant did not put forward any oral evidence. It tendered three medical reports from a clinical psychologist, Dr McMahon. Dr McMahon was not required for cross-examination, although I was told there was an agreement between counsel for the plaintiff and counsel for the first defendant that the rule in Browne v Dunn (1893) 6 R 67 would not prevent counsel for the plaintiff from putting a submission that Dr McMahon had not taken into account “the language difficulties”.
The Commonwealth called Sergeant Harton. I was told that Captain French was in the precincts of the Court, but ultimately, he was not called. The Commonwealth had engaged a surveillance firm to film the plaintiff and the film was put to the plaintiff and was subsequently tendered as an exhibit. The Commonwealth also tendered a number of medical and other reports. Only Dr J Saboisky was required for cross-examination and he gave his evidence by telephone.
Liability
As I have said, the only question on liability is whether the plaintiff was given an adequate and proper warning of what to expect on the evening in question. His case is that he was not given a warning of any nature and he thought the accident scene was real until he was told otherwise. The defendants contended that Sergeant Harton gave the plaintiff an adequate and proper warning.
I start by summarising the evidence of the plaintiff and Sergeant Harton with respect to liability.
Although the plaintiff’s evidence at times was not very clear, it appears that on the instructions of Captain Crane, he was involved in transporting cadets and trainees from the ADF depot to various locations in the Blue Mountains area. The drivers who, as I have said, were staying in a caravan park in Lithgow, were called in and given instructions about what to do.
On the day of the incident the plaintiff was contacted by Captain Crane and asked to assist in an operation involving the transportation of cadets. He drove a small Toyota Hilux minibus carrying about 10 to 12 cadets. He drove in a convoy to the area he described as a “picnic area”. He drove back to the depot and picked up another group of cadets. Again, there were approximately 10 or 12 cadets. There were no sergeants or officers. This time he was in a larger bus, one which had 24 seats. One of the cadets he picked up had a map and gave him instructions about where to drive. They returned to the area where he had been about an hour before. He thinks that the time was between 11.00pm and 11.30pm.
As the plaintiff was approaching the area a female about 20 – 25 years of age appeared at or near the front of the bus asking for help. She was on the ground and one of her legs appeared to be injured. He saw the mini bus which was on its side. He saw another soldier who appeared to be dead with part of his brain on the ground. He also saw a lot of blood on the ground. He looked inside the mini bus and saw a person sitting in the front, hunched over the horn and with one of their eyes hanging out. There was also a lot of blood. There was also a person with their tongue hanging out and two apparently dead people on the ground. The plaintiff’s first thought was that a person with a machine gun had shot at the group he saw killed or injured and that perhaps that person was still present. He thought that there had been a massacre.
The plaintiff said that somebody pulled him back from rendering or continuing to render assistance – he thinks it was Sergeant Harton – and told him the scene was only training. He was taken to the large bus to calm down. The plaintiff said that he was shaking and his body temperature was changing. The person he thought was Sergeant Harton took him back to the caravan park at Lithgow. He spoke to Mr Corey. The next day the plaintiff drove a truck carrying bags back to Canberra. He did that by himself and he was feeling very bad.
In cross-examination the plaintiff:
(1) denied seeing or speaking to Sergeant Harton at the Royal Military College, Duntroon;
(2) denied that he saw moulage kits and dummies and fake blood being loaded onto the Scania truck at Duntroon;
(3) denied going into Lithgow on the day of the incident with Sergeant Harton to buy some lunch and denied seeing Sergeant Harton with a box of offal and other meat off cuts and asking Sergeant Harton if he could look inside the box. He further denied seeing Sergeant Harton purchase or have with him a large quantity of tomato sauce or that Sergeant Harton told him that the offal and sauce was for the exercise that night;
(4) denied that he was given a briefing by Sergeant Harton that afternoon when he was told that the exercise to be carried out was going to involve a pretend accident;
(5) denied that on the first visit to the simulated accident scene he saw the costumes, the box of offal and the fake blood being unloaded or that he was given a blue glow stick or that he noticed any glow sticks;
(6) denied that he was given an instruction by Sergeant Harton that when he arrived back in the picnic area a second time, he was to encourage the cadets to get off the bus; and
(7) agreed that he told Sergeant Harton that the actors and the products looked realistic after the incident and that Sergeant Harton drove the bus back.
Sergeant Harton said that he told the drivers at Duntroon that there would be exercises or activities involving litters, rescue dolls, role players and the like. He said that although he could not remember whether the plaintiff was involved in the loading of equipment at Duntroon, the plaintiff was involved in the unloading at Lithgow. His evidence as to what happened there, is as follows:
When all the exercise participants had arrived, a general safety brief was given and the staff cadets were sent away to go and conduct personal administration. I then took the Serco drivers down as part of their induction, because they hadn’t seen the site before, and actually walked the ground. Mr Dave Robby was unloaded the vehicle at that stage, and there were large, heavy objects in there. So I told him to hold off and we’d give him a hand. So we moved over into the quartermaster’s store there and began under loading stores. I pointed out to the transport lads who were going to be moving these rescue dolls that they weigh in excess of 70 kilos, and Mr Petrovski then alerted me that he’d had a back injury prior, which was fine. So I instructed him not to lift those dolls at all and that the military staff and, indeed, our staff when we got back – when he got back to Marangaroo would conduct the loading and unloading of those vehicles. It was also noted that one of the moulage kits had bounced around in transit and there was fake blood that had been running out of one of the kits, which led me on to my next point, which I explained to the transport lads, as well as the Q-ies, or the Q staff, that stuff comes out of clothing, so long as you wash it and don’t let it set within 12 hours. More importantly for the transport fellows, including Mr Petrovski, that the blood itself, if it got into – the fake blood – if it got into the cloth seats on a vehicle, it would be near on impossible to remove that from the vehicles. So we then – I showed them the plastic car seat covers that we’d purchased specifically for that activity and explained to him that if he was going to pick up a role player from one of the exercises that was covered in the moulage that a plastic seat cover should be utilised so that the vehicle seats wouldn’t be stained. We unloaded them and we distributed them between all the vehicles so that every vehicle had a plastic seat cover. We also – I also showed them the contents of the kit, including the glue, the injuries and how they applied and all the rest of it. And one of the other drivers – I think it was Joe – actually commented on how realistic they looked in the box. And then we – obviously I applied one to my arm and I said, “And you can see that, you know, it does look realistic, but, you know, it looks very B grade, sort of like horror, Dr Who-type sort of stuff.”
Do you recall if Mr Petrovski was present when – during that
discussion?---He certainly was. He was present. Everyone was present there. He needed to be, because there was key safety points being brought out – ie, the emergency assembly area and where things – facilities, like the toilets and the accommodation were.
At about lunchtime on the day of the incident Sergeant Harton said that he gave a full briefing to the drivers, including the plaintiff, about the mass casualty activity right down to the breaking of the blue cyalume stick to indicate that he was no longer part of the activity.
Sergeant Harton gave evidence of going to Lithgow at about lunchtime on 27 February 2008 with the plaintiff and two others and purchasing two full boxes of offal and six litre bottles of tomato sauce. The plaintiff apparently asked if they were having a barbeque, to which Sergeant Harton replied:
“No, we weren’t,” and that the stores in the box consisted of things such as lungs, hearts, intestines and basically butcher’s waste as well as the six litres of tomato sauce that would be utilised to augment the moulage kits and make soldiers look like they’d been involved in a motor vehicle accident. Himself and Joe as well as Mr Dave Robby helped me load those stores into the back of the 100 series Land Cruiser. And when we returned to Marangaroo they also helped me place those stores into the fridge.
Sergeant Harton said that he opened one of the boxes and that the plaintiff had a look inside.
Sergeant Harton said that he went to the simulated accident scene with the plaintiff on his first trip and that the plaintiff helped unload the moulage kits, tomato sauce and boxes of offal. He said that the drivers were told to be careful about soldiers lying on the ground with green cyalume sticks.
Sergeant Harton said that he travelled back with the plaintiff and collected the second group of cadets. He then accompanied the plaintiff and the second group of cadets. Everything then went to plan with the plaintiff jumping out of the vehicle and giving the cadets “a hurry up”. The plaintiff then broke his blue cyalume stick and moved to Sergeants Harton’s vehicle where they had a cup of coffee. The plaintiff said it had looked realistic. The plaintiff was tired and Sergeant Harton agreed to and did drive him back to the camp.
Sergeant Harton said that when the drivers were briefed, he used a mud map with Hexamine tablet boxes representing the vehicles in the accident. The plaintiff was present at this time.
Before deciding the factual issues, it is necessary to address the credit of the two witnesses. The plaintiff had some difficulties with the English language. An interpreter was in court, but ultimately the plaintiff gave all of his evidence without the aid of an interpreter. I am satisfied that he understood the questions he was asked, although I take into account his language difficulties. In his evidence the plaintiff tended to wander off the point at times which was a tendency also noted by some of the medical practitioners who saw him. I must also take into account the fact that the plaintiff suffered a mental illness and to a degree to be addressed later in these reasons, still suffers from a mental illness.
However, the matters to which I have referred do not explain a number of unsatisfactory features of his evidence. I find him to have been an unsatisfactory witness in a number of respects. His evidence was defensive and confusing and he was not forthcoming in a number of areas. First, he tended to obfuscate when asked whether he had problems with gambling. Secondly, his evidence about whether he had said, and in fact was, head of security at Rhythm Snow Sports between 2004 and 2006 was confusing and quite unconvincing. Thirdly, the same may be said of his evidence of the reasons he did not try or succeed at a concreting job. Fourthly, I think that what he told Konekt Australia Pty Ltd about his employment preferences in March 2009 is as stated in that company’s report rather than his explanation in the witness box. Finally, there is the film of the plaintiff taken in October 2012 and May 2013. There are limitations on the use which can be made of the film. The plaintiff claims that he suffers from a mental illness not a physical injury and the film is taken in relation to two limited periods. Furthermore, many of the activities undertaken by the plaintiff and shown on the film are not inconsistent with his case. However, I think there is one significant inconsistency. The plaintiff told a number of medical practitioners that he avoided people. Of course there are questions of degree here, but I think that what is shown on the film is quite inconsistent with the picture the plaintiff conveyed, for example, to Dr Phillips even accepting that the plaintiff is more comfortable with people of a similar background to himself. My view as to the effect of the film accords with the views expressed by Dr Saboisky.
There was nothing in the demeanour of Sergeant Harton which suggested that his evidence should not be accepted. He was confident and precise in giving his evidence. However, there are a number of matters which need to be considered when assessing his evidence.
A number of documents about the incident were prepared in the period immediately after it. Some were prepared for or on behalf of the first defendant and they related to the workers compensation claim. They proceeded on the basis that the plaintiff had suffered a “fright” as a result of what he had seen and contained a statement that Sergeant Harton was a witness.
In terms of the ADF it is significant that in his report Captain French stated the following:
Medical
28. The following medical data was captured during the exercise:
…
c. One civilian driver sustained a stress reaction to a simulated vehicle accident.
Captain French was not called to say whether he had personal knowledge of the fact or he had been told that by someone else and, if so, whom.
A “Defence OHS Incident Report” was tendered and this document suggested that the incident had occurred, that the plaintiff had not been briefed properly and that more thorough briefings would be carried out in the future.
Sergeant Harton said that the first time he was asked to recall the events of 27 February 2008 was about three weeks before he gave evidence. It was at that time he heard for the first time that the plaintiff claimed that he suffered a shock on the night of the incident.
These matters and circumstances are puzzling. Perhaps the ADF obtained the information in Captain French’s report from Serco Sodexo and did not investigate the matter itself because it was considered minor. Although that is one possible explanation, the fact is that the ADF’s records suggest that the plaintiff suffered a stress reaction as a result of the incident and Captain French was not called to put the statement in his report in a different context.
I find that the plaintiff did suffer a shock reaction to what he saw at the simulated accident scene. That is consistent with the records of the ADF. It is consistent with the plaintiff’s conduct after the incident. Most importantly, it is consistent with the plaintiff’s evidence of his approach to the simulated accident scene and his conduct at the scene. Although the plaintiff was, as I have said, an unsatisfactory witness in a number of respects, I found convincing his evidence about what he saw and his reactions and, in particular, his evidence of being pulled back and told it was only a training exercise. I find that he was in shock and that because he could not do so, Sergeant Harton drove the bus back. Sergeant Harton arranged for someone else to drive his vehicle back. I do not think Sergeant Harton was trying to mislead the Court in giving the evidence he did, but he must be mistaken because the contrary evidence is convincing. I also find that if the plaintiff was warned (which he denies) he did not have that warning in his mind when he approached the simulated accident scene.
The fact that the plaintiff suffered a genuine shock reaction at the simulated accident scene does not of itself establish the plaintiff’s case although it goes some way towards doing so. The defendants claim that the ADF gave an adequate and proper warning to the plaintiff of what to expect at the simulated accident scene.
The simulated accident scene must have looked particularly graphic and arresting at night. The plaintiff was genuinely shocked by what he saw. I think that it is more probable than not that he was not given an adequate and proper warning of what to expect and I so find. I have accepted his evidence that he was pulled back and told that it was only training, and I have rejected Sergeant Harton’s evidence that that did not occur. It seems to me that while some of the matters outlined by Sergeant Harton, such as the loading and unloading of equipment and the plaintiff’s presence when the offal and tomato sauce were purchased and perhaps even a very general briefing may have occurred, the clear and detailed warning which should have been given to the plaintiff was not given. Although I do not think Sergeant Harton was trying to mislead the Court, I think his detailed evidence of warnings is mistaken, either because he has confused Exercise Stretton with other exercises, or he has reconstructed circumstances such as the plaintiff’s presence on various occasions.
The plaintiff has established a breach of the duty of care owed to him by each defendant.
Damages
The plaintiff was born in Yugoslavia on 20 March 1958. The area in which he was born is now known as the former Yugoslav Republic of Macedonia. The plaintiff speaks Macedonian.
The plaintiff completed some schooling in an industrial college in Macedonia and he studied a motor mechanic’s course for approximately three years. He played professional soccer when he was 17 years of age. In the late 1970’s he completed a period of compulsory military service in the Regular Yugoslav Army. He was later a member of the military police.
The plaintiff came to Australia in 1985 and he married in Australia. He went back to Macedonia for about 16 months and then finally immigrated to Australia in 1987. He lived in Sydney and his first job was in a rubber factory working as a labourer. He was doing what he described as process work.
The plaintiff suffered an injury to his right leg in about 1990 whilst working with Thomas Clark & Sons. He suffered an injury to his back in 1998 whilst working as a truck driver and labourer for Mitre 10.
The plaintiff played professional soccer in Australia and he was a soccer coach from about 2000. He said in evidence that he thought that he had done that job for about seven years. He did some work for Snowy Mountains Hire Cars between 2000 and 2006 and he did some part time work for a business called Rhythm Snow Sports.
On 30 January 2007 the plaintiff commenced part time work as a transport employee grade 8 with Serco Sodexo. He was employed for a three month probationary period and his employment was subject to Serco Sodexo retaining its contract with the ADF in the Australian Capital Territory and New South Wales. On 5 April 2007, Serco Sodexo advised the plaintiff that he now held a full time position as a driver grade 8 and that that was effective from 9 April 2007.
The plaintiff said that after the incident and once he was back in Canberra he saw Dr Tym, who is a psychiatrist, and his general practitioner, Dr Cocker. The plaintiff was having difficulty sleeping. He started receiving workers compensation. He saw Ms Maree Cummins who was a rehabilitation consultant. He attempted to return to work as a driver in late April 2008, but had difficulty concentrating and it was his decision that he would not drive. The plaintiff began receiving treatment from Dr Torres who is a clinical psychologist. He said that he ruminated about the incident and re-lived what he saw.
After the incident the plaintiff, who had separated from his first wife in 1991, did not do very much. He said that he lost his driver’s licence because he was on medication and he could not coach soccer.
The plaintiff had a work placement at Rhythm Snow Sports in September or October 2008. He rather suggested that the job was not considered appropriate because his English was not good enough.
The plaintiff said that he can drive from Adaminaby to Canberra, but he has to stop on a couple of occasions. He married a woman in Macedonia and brought her back to Australia. The marriage did not last very long. The plaintiff was the subject of an apprehended violence order. He breached the order and spent some time in Goulburn Gaol as a result. The plaintiff said that he had developed a drinking problem since the incident, and had high blood pressure and problems with cholesterol and with sleeping. He is not working.
The plaintiff said that but for the incident he would have continued working with Serco Sodexo and would have developed four units in Jindobyne.
A summary of the plaintiff’s symptoms according to his evidence is as follows. He said that he suffers from recurrent visions of the incident and that he had difficulty driving because he suffers from visions of the incident. He has difficulty sleeping and suffers from nightmares. He has poor energy levels and experiences feelings of fearfulness. He also feels depressed and anxious. He has suffered a loss of libido. He has taken painkillers and antidepressants. He told Dr Phillips that he engages in avoidant behaviour towards other people even with those of the same background.
There is no dispute that the plaintiff suffers from a recognised psychiatric illness. He has been seen by a number of medical practitioners over the period of approximately five years between the date of the incident and the date of the trial. A summary of the conclusions of the medical practitioners is as follows:
Schedule
Doctor’s Name and Specialty Dates of Examination Diagnosis Dr R Tym
Psychiatrist6 March 2008 and on subsequent occasions Acute Stress Disorder (DSM-VI TR 308.3) Dr Cristian Torres
Clinical Psychologist22 May 2008 and on subsequent occasions Chronic Post Traumatic Stress Disorder (DSM-IV-TR 309.81) Associate Professor Jeffrey Looi
Consultant Neuropsychiatrist2008 Post Traumatic Stress Disorder and symptoms of anxiety and depression Dr J Phillips
Consultant Psychiatrist5 November 2009
1 November 2012Initially, Post Traumatic Stress Disorder (DSM-IV_TR 309.81) and other more broadly based symptoms. A chronic treatment resistant post traumatic stress disorder.
Now, a dysthymic disorder (DSM-IV-TR 300.4)Dr J McMahon 11 February 2009
14 March 2012If taken at face value: Chronic Adjustment Disorder with mixed anxiety and depressed mood Dr J Saboisky
Consultant Psychiatrist7 October 2011
9 October 2012Post Traumatic Stress Disorder
The views of Dr Phillips as to the plaintiff’s diagnosis and prognosis on the one hand, and those of Dr Saboisky on the other hand, represent the rival positions between the plaintiff on the one hand, and the defendants on the other. Dr Phillips and Dr Saboisky gave evidence by telephone and both were cross-examined. Having regard to all of the evidence, and in particular the three matters set out below, I prefer the evidence of Dr Saboisky to that of Dr Phillips.
First, I did not find the plaintiff a reliable witness in a number of respects and I have identified areas (leaving aside the film) where his evidence was unsatisfactory earlier in these reasons. I consider that the plaintiff exaggerated his evidence as to the effects of the incident.
Secondly, although the film of the plaintiff’s activities was subject to a number of limitations, it did lead me, as I have said, to conclude that the plaintiff exaggerated when he told Dr Phillips of his avoidant behaviour towards other people.
Thirdly, I think Dr Phillips accepted (quite fairly) that his clinical judgment at the time of his first report was wrong. Furthermore, I think he was disposed to see a more positive trend in terms of the plaintiff’s improvement in light of what he was told appeared on the film.
In accordance with Dr Saboisky’s report, I make the following findings. In October 2011 the plaintiff had no enthusiasm to look for work in any capacity. He had what Dr Saboisky called “a distinct lack of enthusiasm for any rehabilitation plan for re-employment”. In speaking to Dr Saboisky the plaintiff minimised other stresses in his life and he tended to blame others. He did suffer a post traumatic stress disorder since the incident. There have been other complicating factors including alcohol abuse, a relationship break up, an apprehended violence order and five weeks in gaol. He had also been involved in two vehicle accidents. In October 2011 the plaintiff could constructively engage in full time work, but not with the military or driving heavy machinery. He is physically able to perform the work of a motor mechanic and he could referee soccer games. His motivation to gain employment is very much coloured by the medico-legal context in which he finds himself. As Dr Saboisky said in evidence, the plaintiff is resistant to employment because of the compensation situation. By October 2012 the plaintiff had residual symptoms of a post traumatic stress disorder. The severity of his illness is of mild proportions and he generally functions well on a day to day basis except in winter. He is able to care for himself, to run a household and to go fishing regularly. He sees his general practitioner every month, but every three months would be sufficient. After the case is finalised, the plaintiff’s contact with his general practitioner will diminish. The plaintiff could work in a range of non-demanding occupations if he chose and although his symptoms are chronic he is capable of paid employment.
The first head of damages is general damages for non-economic loss. As against Serco Sodexo, those damages must be assessed at common law. That is no easy task as neither party was able to refer me to a comparable case. As I have said, I do not think the plaintiff’s symptoms are as severe as he makes them out to be and I think that there will be considerable improvement after this case is finalised. Doing the best I can, I would assess $60,000 for past non-economic loss and $30,000 for the future.
As to the Commonwealth, I would assess the plaintiff’s case at 25% of the most extreme case. That results in an amount for non-economic loss of $35,000.
I will invite the parties to recalculate the figure for interest on general damages for non-economic loss.
The second head of damages is past economic loss which the plaintiff claims in the amount of $193,912. That is based on a calculation for a complete loss of earnings from 27 February 2008 to 26 February 2009 and a 75% loss of earning capacity from 26 February 2009 to the date of trial. I will allow the claim for past economic loss, although I am conscious that it is somewhat artificial to allow $500 per week up to trial and $200 per week after trial. However, it is difficult to be precise in light of the facts of this matter and I am satisfied that the risk of over-compensating the plaintiff in the period leading up to trial is offset by the risk of under-compensating the plaintiff in the period immediately after trial.
The third head of loss is future economic loss. This is difficult because the plaintiff is presently able to work in most jobs and there will be further improvement when the litigation is resolved. There is some loss of earning capacity but it is relatively modest and difficult to calculate. Instead of the plaintiff’s figure of $500 per week, I will allow a figure of $200 per week. Using the other assumptions advanced by the plaintiff, the resulting figure is $89,624 for the first defendant and $80,563 for the second defendant which are the figures I will allow.
I will invite the parties to recalculate the figures for lost superannuation benefits and the difference between the net amount allowed and the amount repayable to the workers compensation insurer (Fox v Wood (1981) 148 CLR 438) to the extent that that is necessary.
There was no dispute about out of pocket expenses which I will allow at $57,123.
I will invite the parties to recalculate the plaintiff’s other claim for interest.
Conclusion
The plaintiff is to file and serve proposed minutes of order reflecting the conclusions in these reasons within seven days.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Date: 6 December 2013
Counsel for the plaintiff: Mr Grey
Solicitor for the plaintiff: Pappas, J. Attorney
Counsel for the first defendant: Mr Pilkinton SC
Solicitor for the first defendant: LBR Legal
Counsel for the second defendant: Mr Shillington
Solicitor for the second defendant: Clayton Utz
Date of hearing: 28, 29, 30 May 2013
Date of judgment: 6 December 2013
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