Cleaning Up Liability: Can an Occupier Be Liable for Mental Harm After a Fatal Accident?

Introduction

McCabes acted for the owner of a shopping centre, Lederer Group Pty Ltd, in successfully overturning a recent NSW District Court decision which had held it liable for the psychiatric injuries allegedly sustained by a centre cleaner who was present at the aftermath of a fatal car accident which occurred in the centre loading dock; Lederer Group Pty Ltd v Hodson [2024] NSWCA 303.

Principles

1. An occupier will not be in breach of the duty of care it owed to staff members merely because its centre manager did not issue a directive to not attend the scene of a critical incident. This would amount to “a counsel of perfection”
2. The ‘foreseeability test’ under section 32 of the Civil Liability Act 2002 must be considered in light of the particular facts of the case. Here, there was no evidence adduced by the plaintiff that the occupier’s centre manager knew that he had a particular vulnerability which meant he was more likely than a person of ‘normal fortitude’ to suffer psychological injury by being present in the centre (and near the scene of the incident).
3. To establish medical causation, expert evidence must be treated cautiously and given limited weight in circumstances where such expert opinion is based on assumptions that are proven to be factually incorrect. Here, the plaintiff’s wholly inconsistent (and in some incidents incorrect) evidence provided to the medical experts meant that they had proceeded on incorrect assumptions such that the Court ought to have given little, or no, weight to the opinions expressed.

Background

The plaintiff commenced proceedings in the NSW District Court against Lederer Group Pty Ltd (Lederer), the owner of Corrimal Shopping Centre, and his employer, Hurex Pty Ltd (Hurex), following a fatal car accident on 26 October 2020 in which an elderly man was run over by a truck in a loading dock.

The plaintiff was placed by Hurex to work at the centre as a cleaner and was called into work by Ms Necovski a manager employed by Lederer, as a colleague who was a first responder to the critical incident was too distressed to continue his shift.

The plaintiff initially alleged that he witnessed the deceased’s body and/or the incident itself.  However, at trial it was found that the plaintiff did not witness the incident, and the body was covered by a sheet at all material times.

The plaintiff subsequently asserted that the ‘surrounding circumstances’ of the scene including the presence of the covered body, a certain “smell”, emergency vehicles and a distressed colleague was sufficient to have caused him to suffer a psychiatric injury, and this resulted from a breach of the duty of care which Lederer owed to the plaintiff, by failing to have directed him not to attend the scene in the aftermath of the critical incident.

Primary Decision

At first instance, the primary judge, found that upon arriving at the centre, the plaintiff immediately attended the dock where he was met by Ms Necovski and directed to assist his distressed colleague who witnessed the exposed body. At the time of the plaintiff’s attendance, the victim’s body was covered with a sheet.

His Honour accepted that the plaintiff was not specifically directed to return to the scene and to the extent the plaintiff did so, it was of his own initiative and absent any direction from Ms Necovski.

However, despite this finding, His Honour was satisfied that given the scene generally, and the potential of the plaintiff to be emotionally fragile given some background circumstances, it was reasonably foreseeable to Lederer (and to Ms Necovski) that a person of normal fortitude might suffer a recognised psychiatric illness if exposed to the aftermath of the critical incident.

It was held that Ms Necovski should have issued a clear directive to the plaintiff that he was not to attend the scene in the course of his duties that day, and that her failure to do so was a breach of the duty of care that Lederer owed to the plaintiff and was directly causative of his psychiatric injuries. Lederer’s defence under section 32 of the CLA was rejected.

Decision on Appeal

The NSW Court of Appeal unanimously overturned the primary judge’s decision, accepting all three of Lederer’s appeal grounds.

It was held that the primary judge erred in finding that Lederer breached its duty of care to the plaintiff as Ms Necovski could not have foreseen that a person with normal fortitude might suffer a psychiatric injury if confronted with the scene (i.e. a body covered by a white sheet, emergency vehicles and a distressed colleague).  At no stage could the plaintiff see the body (despite his incorrect assertions otherwise), and Ms Necovski was not aware of the plaintiff having the kind of vulnerability identified in Tame v New South Wales [2002] HCA 35.

The plaintiff therefore failed to establish the ‘foreseeability test’ element required under section 32 of the Civil Liabiltiy Act 2002, that it was foreseeable a person of normal fortitude (with some “emotional fragility”) may suffer recognised psychiatric illness by having to attend the aftermath of a critical incident, but without witnessing any specific circumstances such as seeing the body of the deceased.

Although the risk of harm was correctly found to be ‘not insignificant’, the Court of Appeal held that Lederer did not breach its duty of care in failing to direct the plaintiff not to attend the scene, as there was no reasonable possibility that the limited exposure to the aftermath of the scene would cause him to suffer a psychiatric injury.  As His Honour Justice Basten held:

“There was no suggestion made to Ms Necovski that she should have done things differently, nor that there were other resources available to her to deal with the totally unexpected events. The plaintiff’s case was merely that she should not have allowed him to be exposed to the aftermath of the accident.

In the circumstances, and on her evidence which was accepted, all she asked him to do was to support Mr Brydon and remove him from the scene. To suggest that she was in breach of her duty of care in asking any other member of staff to be involved was not a reasonable proposition…

There was no shred of evidence to suggest that Ms Necovski, or anyone else involved in the events of that morning, behaved otherwise than entirely reasonably and with due attention to their respective responsibilities. The suggestion that Ms Necovski (and therefore Lederer), let alone Hurex, failed to act appropriately or failed to anticipate the need to take some step which was not taken, defies common sense”.

The primary judge was also held to have erred in finding that the plaintiff’s psychiatric condition was caused by his attendance at the scene.  The medical experts relied upon erroneous assumptions of fact provided to them by the plaintiff (and his solicitors) that the plaintiff had directly seen the deceased after the critical incident, and further that he had been “repeatedly exposed” to the aftermath.  As these ‘facts’ were untrue, little to no weight could be attached to the experts’ opinions which had been Lederer’s submission to the primary judge at first instance.

Accordingly, the Lederer’s appeal was allowed and judgment entered in its favour.

Why this case is important

Whilst the case is an unusual and fact specific case, it provides a good precedent for nervous shock cases, and application of section 32 of the CLA.  Careful consideration is required of section 32 along with the Tame criteria and unique facts of each case to determine whether this defence is enlivened.

It also highlights the importance of assessing whether the assumptions relied on by experts are factually correct, as this can significantly impact the weight given by a Court to expert opinion and therefore medical causation.