Supreme Court New South Wales Medium Neutral Citation: Sdrolias v Power Distribution Services Pty Limited [2021] NSWSC 321 Hearing dates: 24-28 August 2020 Date of orders: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Common Law Before: Fagan J Decision: (1) Verdict and judgment for the defendants. (2) Both cross-claims are dismissed. (3) The plaintiff is to pay the defendants' costs. (4) The costs of each defendant of the cross-claim brought by it and of defending the cross-claim brought against it by the other defendant are to be assessed against the plaintiff as costs of defending the plaintiff's claim. (5) Any application to vary the costs orders or for costs to be assessed other than on a party/party basis is to be filed within 14 days of the publication of the reasons for judgment. Catchwords: NEGLIGENCE – Duty of care – Foreseeability – psychiatric injury – plaintiff witnessed physical injury to employees of a sub-contractor on site NEGLIGENCE – Vicarious liability of sub-contractor for employees' tort of negligence Legislation Cited: Civil Liability Act 2002 (NSW) Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Cases Cited: Credit Lyonnais Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486 Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36 Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Twine v Bean's Express Ltd [1946] 1 All ER 202 Texts Cited: Fleming, Law of Torts, 10th ed (2011) Category: Principal judgment Parties: Evangellia Sdrolias (plaintiff) Power Distribution Services Pty Ltd (first defendant) Allianz Australia Insurance Limited (second defendant) Representation: Counsel: R McIlwaine SC with R Goodrich (plaintiff) B Kelleher (first defendant) P Morris SC with R Perla (second defendant) Solicitors: Firths Lawyers(plaintiff) Colin Biggers & Paisley (first defendant) Moray & Agnew (second defendant) File Number(s): 2016/00322372 Publication restriction: No Judgment 1. The plaintiff claims damages for psychiatric harm allegedly sustained as a result of witnessing an electrical explosion by which two workmen were severely burned on 30 October 2013. On that date the plaintiff was employed by Direct Traffic Pty Ltd ("Direct Traffic") as a traffic controller. She was performing those duties on a site at Eastern Creek where subsurface electrical cables were being installed to serve two switching stations at a data centre on Roberts Road. Direct Traffic had been engaged by the first defendant, Power Distribution Services Pty Ltd, which was carrying out work on the site. 2. It is necessary to refer to a number of contractual relationships to explain the roles and activities of the two defendants whom the plaintiff seeks to hold liable in negligence. Cass Electrical Services Pty Ltd ("Cass Electrical") was a principal contractor for electrical work at the data centre. In about June 2013 the first defendant entered into a sub contract with Cass Electrical for part of the work, including high-voltage cabling and the installation of two electrical switching stations. The first defendant engaged Superior Civil Pty Ltd ("Superior Civil") to perform part of the work within the first defendant's scope. Superior Civil's sub-contract included installation of new subsurface conduits, cutting and removing some existing conduits that had already been laid in the ground and covered and installing new high-voltage service pits. 3. Superior Civil was originally named as second defendant in the proceedings. A winding up order has since been made against it and it is in liquidation. In 2013 Allianz Insurance Australia Ltd ("Allianz") was the public liability insurer of Superior Civil. On 8 September 2017 the Court granted leave to the plaintiff to substitute Allianz as second defendant in place of Superior Civil, pursuant to the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). Circumstances of the explosion 1. As at 30 October 2013 eight underground conduits had been laid below ground level and covered in the relevant part of the site adjacent to Roberts Road. Two pits had been dug down to the level of these conduits. At a depth of about 1.2 metres the conduits were exposed. Some of them were laid side-by-side and some were laid over the top of others. The plaintiff gave oral evidence that the pits were approximately four metres apart but in a report to her employer on 1 November 2013 she described the scene in a way that suggested the pits were at least 20 metres apart. Two of the eight conduits that were exposed at the bottom of these pits contained live high-voltage electrical cables. On 30 October 2013 it was necessary for Superior Civil to ascertain which of the conduits in the bottom of the pits was empty so that they could be cut in preparation for pulling new cable through them. 2. Messrs Ben Forster and Bradley Cahill and Ms Rhiannon Lea were all employees of Superior Civil. Ms Lea was designated a leading hand and was the senior employee of Superior Civil on the site. She attended one of the pits together with one other person. Mr Forster entered the other pit to cut key holes in the conduits to identify which ones were empty. He climbed down into the pit and examined the upper layer of conduits. At some time after he had commenced this work Mr Cahill attended at the pit. Mr Forster then proceeded to cut a hole in the wall of one of the lower conduits using a battery-powered reciprocating saw. The wall of the conduit was made of a plastic material, probably PVC. Mr Cahill stood near to where Mr Forster was working and inserted his shovel between two of the conduits to hold them apart and make it easier for Mr Forster to get access to the one in which he was cutting a hole. Mr Forster penetrated the wall of the conduit with the blade of the reciprocating saw and struck a live cable which caused an electrical explosion. 3. Mr Tony Rossi, the first defendant's managing director, was present on site on 30 October 2013. When the conduit examination was being undertaken and when the explosion occurred, Mr Rossi was not in the immediate vicinity of either of the pits. The reciprocating saw was owned by the first defendant and had been brought to the site by Mr Rossi for use in cutting new extension conduit that was to be laid through an under bore. Neither Mr Rossi or any other employee of the first defendant had authorised use of this power tool for cutting conduit in circumstances such as those in which Mr Forster used it, namely, to cut inspection ports through which a workman could ascertain which of several in-ground conduits carried live cable. Mr Rossi was not aware that his company's reciprocating saw had been borrowed for use by Mr Forster. Neither Mr Rossi nor any other employee of the first defendant had taken any part in directing Superior Civil or its employees as to how they should perform the conduit cutting in the pit where Messrs Forster and Cahill were working. 4. Superior Civil prepared a a number of Safe Environment and Work Method Statements ("SEWMS") for the work that it was to perform under its sub-contract to the first defendant, one of which was designated number 5 and was entitled "Cable Pulling". That SEWMS was dated 25 July 2013. It described a sequence of "Job Steps" and against each step it specified "Potential/Actual […] Safety Hazards" and "Controls". Item 4 of the Job Steps was "Cut ducts if required". The safety hazard and the required control for this Job Step were specified as follows: Potential/Actual […] Safety Hazards Cutting cable within the duct where such cable was not expected, which may cause an explosion or electrocution. Controls 1. Ensure that on-site staff have electrical service searches which should show location of existing cable and its installation within the duct. 2. Test weight and feel of duct to determine if it is empty. Tap to test if hollow. 3. Window duct to confirm the duct is empty. Cut a small test hole and visually inspect the contents of duct. Cut duct with handsaw only on top of conduit. No reciprocating or power saw to be used to cut existing conduits. 1. The evidence shows that the term "existing conduits" was used and understood by the employees of Superior Civil as referring to conduit that had been laid below the ground surface and covered. Both of Messrs Forster and Cahill signed the SEWMS, for the evident purpose of acknowledging their familiarity with and acceptance of the document. 2. On 30 October 2013, prior to the commencement of work for that day, a Daily Site Risk Assessment was prepared by Mr Cahill. In this document the day's work was identified as "hauling/trenching" and it was noted that there were present eight subsurface conduits in the relevant work area of which two contained live cables. The applicable Safe Environment & Work Method Statements applicable for the day were listed, including "SEWMS 05 Cable Pull". The Daily Site Risk Assessment was signed by all four of Superior Civil's employees on the site and by Mr Rossi. 3. In late November 2013 and during the following month a WorkCover inspector conducted interviews with each of Ms Lea, Mr Forster, Mr Cahill and Mr Rossi to ascertain what had occurred on 30 October 2013. Parts of these interviews were tendered by consent and I rely upon them as evidence of the truth of the answers given. 4. Ms Lea said that she had communicated to Messrs Forster and Cahill the requirement of the SEWMS that a reciprocating saw not be used. In accordance with the usual practice of Superior Civil, the two men had been required to read through the document and sign it at the commencement of their work on the site. On this job she had not seen a reciprocating saw being used to cut conduit that had been previously laid and covered. She was aware that reciprocating saws had been used in that situation on other jobs "years and years ago" until the use of this tool for that purpose was banned. She did not see Mr Forster with a battery-powered reciprocating saw before the explosion occurred. 5. Mr Forster told the WorkCover inspector that in the pit where he was working the lowest conduits, including the one that he was cutting when the explosion occurred, were at an awkward angle and that he used the reciprocating saw because it would be difficult to fit "a normal saw in the gaps between the conduits" and because "it's faster". He said that he avoided using the reciprocating saw when he could and used a handsaw for preference but "sometimes it's just impossible". I do not accept his evidence in this last respect. It would have been possible to use a hacksaw blade, detached from its frame, even in the tightest and most awkward locations. Alternatively it would have been possible to use a wallboard or keyhole saw. The PVC material of the conduit would be relatively soft and easily cut with a hand tool. Mr Forster said that he was unsure whether Superior Civil had instructed him not to use a reciprocating saw in this application but I reject that evidence also. There is no doubt that he had been so instructed, both in writing and orally, and that he had signed his acknowledgement of the written instruction. Mr Forster said that he and Mr Cahill were used to working as a team and directed themselves as to the next task that required to be done on the site, rather than checking with any other person and seeking instructions. 6. Mr Cahill acknowledged to the inspector that he was aware of the presence of live cables in some of the conduits, that he knew his employer prohibited the use of a reciprocating saw for cutting inspection ports in existing conduit, that he was aware of the danger of this and knew that a handsaw should be used. Mr Cahill said that Mr Forster was aware of the danger of using a reciprocating saw in this situation and knew that it was prohibited. He said that no one had directed Mr Forster to use the reciprocating saw for the task. Mr Cahill said: I've been told heaps of times that reciprocating saws when you're in the ground, you're not allowed to use 'em because like it's too dangerous obviously. 1. Mr Cahill also said that there were always hard copy SEWMSs on the job and that Superior Civil's employees sign onto such statements "at the very start of every job we do and then they're kept in a job pack that we have" on the site. In his answers to the WorkCover inspector Mr Cahill did not make clear whether he was standing down in the pit next to Mr Forster when the electrical explosion occurred or on the edge of the pit. Mr Cahill said that he was holding a shovel that he had "jammed in between two conduits" to open up a gap through which Mr Forster could operate the saw. He said he had his back turned to Mr Forster when the explosion occurred. He said that he "should have picked up on" Mr Forster using the reciprocating saw, and told him not to, and he had "no idea" why Mr Forster used the tool contrary to instructions or why he, Mr Cahill, had not stopped it. He said that there were hand saws that could be used for the job in the back of Superior Civil's utility vehicle, where all of the company's tools were kept on site. Mr Cahill personally regarded the reciprocating saw as dangerous in this application because "you've really got no control of how fast you're going whereas a handsaw you can, you can do it at your own pace". I accept as truthful all of the above information provided by Mr Cahill to the WorkCover inspector. Proximity of the plaintiff to the explosion 1. By 30 October 2013 the plaintiff had worked for Direct Traffic for 3½ years on a casual basis. The company's office was at Swaffham Road, Minto but the plaintiff was assigned to the job sites of the company's clients at various locations in the Sydney metropolitan and Wollongong areas. She worked between 18 and 50 hours per week, with an average of 30-40 hours. The plaintiff had completed courses of instruction to qualify for certificates of competence as a traffic controller and she held a First Aid certificate. She was designated a team leader by Direct Traffic. 2. The plaintiff's duties on the subject site included setting up a traffic perimeter around the work area and controlling traffic movements with a Stop/Slow bat. In accordance with her employer's usual practice she received notification on 29 October 2013 that she needed to be on the Roberts Road site the next day. She had worked there on a number of previous occasions but this was the first time that she worked there unaccompanied by any other Direct Traffic employee. On each occasion when the plaintiff attended the site Mr Rossi directed her as to what duties she was to perform. On 30 October 2013 she was required to restrict access, particularly foot traffic, to an area adjacent to Roberts Road where a footpath would normally be located but where various excavations were being or had been undertaken. This was the area in which there were located the two pits earlier referred to. 3. According to an evidentiary statement adopted by the plaintiff in the witness box, she arrived at the site at between 6:30 am and 7:00 am on 30 October 2013. At par 48 of her statement the plaintiff said that to the best of her recollection there was no "toolbox talk" on this day. However, in cross examination she agreed that she did not regularly attend the toolbox talks conducted by the personnel of the first defendant and of Superior Civil and that she would not know whether there was such a talk on 30 October 2013. I am satisfied that there was, as evidenced by the Daily Site Risk Assessment document referred to at [9] above. The meeting was attended by Mr Rossi on behalf the first defendant and by Ms Lea, Mr Forster, Mr Cahill and a labourer, Jesse Jackson, on behalf of Superior Civil. Each of them signed the Daily Site Risk Assessment. 4. The plaintiff has given significantly varying accounts of the circumstances of the explosion and of her exposure to it. There are notable differences between: her evidentiary statement, signed on 20 August 2020, immediately before the hearing; her oral evidence in cross-examination; a description of events given to a WorkCover inspector on the afternoon of 30 October 2013; a further description given by the plaintiff to her employer on 1 November 2013 and a number of accounts she has provided to treating doctors and forensic medical experts. 5. The plaintiff said in her evidentiary statement that immediately before the explosion she walked past the subject pit and saw both Mr Forster and Mr Cahill, whom she knew only as Ben and Brad, down in the pit working on electrical conduits, using tools that included a reciprocating saw. She said that she heard one of them say, "Ouch!". When she looked down and asked if the man was alright, he said that he thought he had cut himself with the saw, although she did not notice any blood. She told him, "Be careful" and kept walking. 6. With respect to events immediately after the plaintiff had walked past the pit, her statement is as follows: 53 When I was approximately 4 paces away from the pit I heard a loud noise, which sounded to me like an explosion. 54 I turned around to face the pit and saw Brad Cahill walking towards me away from the pit. He looked dazed, what I would describe to be "zombie" like. 55 Brad was burnt on his face and chest, and his hair. I could smell burning flesh. 56 The other worker, Ben Forster, was rolling around on the ground near the pit and screaming. Other people were helping him. I could see his burnt flesh all over his body from his head, to the top of his boots on his ankles. 57 I helped Mr Cahill make his way over to where the fire hydrant was located on the side of the adjacent building. When we got there, [Mr Rossi] was there and helped put water on Mr Cahill's arms. 58 [Ms Lea] had called an ambulance but she didn't know off hand the details of where we were. I took the phone from her and gave the emergency operator the information needed for the ambulance to attend. 59 I continued to assist Mr Cahill in putting water on his burns. At the same time I was calling out to people to stay away from the pit, as people had started to gather. I was very fearful that the pit might explode. 60 After I secured a perimeter around the pit, I then waited for the ambulance to arrive. Once it arrived, I was able to telephone Direct Traffic head office to tell them that there had been an incident. At the time I spoke with [Mr] Christian Van Der Ende. […] The manager, Michelina Van Der Ende, then attended the work-site approximately 45-60 minutes later. 61 When Michelina attended the scene she checked to see if I was OK […]. She asked me if I wanted to go home, however, I wasn't able to as I had been asked by Tony Rossi […] to stay on-site […] in order to speak with the WorkCover investigator. Michelina then left me there on-site. 62 I remained at the site until approximately 6:30-7:00 pm during which time I was spoken to by the NSW Police, the WorkCover investigator [and others]. 1. In cross examination the plaintiff said that there had been only one person in the pit as she passed it, namely, Ben Forster, and that although he was using a saw she did not know at the time that it was a reciprocating saw. The plaintiff also said in cross-examination that when she passed the pit Mr Cahill was sitting on an excavating machine "right on the edge of the hole" and that when Mr Forster said he thought he had cut himself with the saw, this was directed to Mr Cahill, not to herself, and that she merely overheard it. In cross-examination the plaintiff said that when the explosion occurred she was between the two pits. She said that after walking past the pit in which Mr Forster was working she continued towards the other pit. 2. However, the plaintiff also agreed that information set out in an Incident Report prepared on 1 November 2013 by Mr Christian Van Der Ende had come entirely from herself. She signed the document, as did Mr Van Der Ende in the capacity of Direct Traffic's Safety Advisor and Ms Michelina Van Der Ende as Director. The Incident Report included the following: [The plaintiff] was monitoring jobsite in between two pits when heard an explosion from one of the pits approx. 20 metres away. [The plaintiff] turned around to see what happened as the excavator operator was walking towards [her]. The other worker in the hole was rolling in the dirt screaming. [The plaintiff] reported the smell of burning flesh and the excavator operator was in a confused state. 1. The Report made no mention of the plaintiff having walked past the pit or having taken part in or overheard any conversation involving either of the workmen. Instead, the Report described the plaintiff as having been in a position between the two pits "monitoring" this part of the job site. Also, the Report of 1 November 2013 placed the plaintiff significantly further away from the pit when she heard the explosion, compared to the distance given in her evidentiary statement and in cross-examination. 2. The plaintiff agreed in cross examination that for the purposes of this Report she had no reason to misdescribe any of what had occurred. She denied that her recollection would have been better when she provided information for the Report, two days after the incident, than it was at the time of giving evidence. I cannot accept that denial. When first asked about differences between her evidence in court and the nearly contemporaneous Report to her employer, the plaintiff offered no explanation of why she would have described the circumstances as she did on 1 November 2013 if that was not a true account. No claim of psychiatric injury nor any dispute with the employer arising out of the incident had arisen by that date. I regard the plaintiff's account recorded in the employer's Incident Report as a more reliable source than her statement prepared for the proceedings or her oral evidence. 3. Although the plaintiff described Mr Cahill as "the excavator operator" in the information she provided for Direct Traffic's Incident Report, the Report contains no suggestion that she saw him on the excavator immediately before the explosion. In cross-examination the plaintiff was shown a photograph of the pit that was taken after the explosion, in which a shovel can be seen inserted between upper and lower conduits, with the damaged reciprocating saw on the ground nearby. She denied that immediately prior to the explosion Mr Cahill had been using that tool to separate the conduits. However, I accept Mr Cahill's statement to the WorkCover inspector that that was what he was doing. I find support for his statement in the photograph. The plaintiff endeavoured to explain the photograph, consistently with the version of events she had given earlier in cross examination, by asserting that: Mr Forster was using the shovel to dig some of the dirt away from the conduits. 1. That is highly improbable, in view of the difficulty of using the shovel for that purpose at the same time as operating the reciprocating saw. Taking into account that Mr Forster had a fellow workman nearby there is no reason why he would have attempted to perform both of these tasks himself. Nor is there any reason why Mr Cahill would have been sitting on the excavator rather than down in the hole helping Mr Forster. The excavator could not be used while a co-worker was in the pit. 2. Despite the plaintiff's estimate to her employer, given on 1 November 2013, that she was 20 metres away from the pit when the explosion occurred, she insisted in cross-examination that she was only 10 feet away, which would equate to 3 metres. When it was pointed out to the plaintiff that she also gave the estimate of 20 metres to the WorkCover inspector who interviewed her during the afternoon following the accident, she claimed that she was "in shock that day, and a few days afterwards" and that when she spoke to the inspector and to her employer two days later she could not actually recall how far she had been from the explosion. I do not accept that explanation. There is no evidence that the plaintiff exhibited any sign of shock on the day of the accident or on subsequent days. At the accident scene the plaintiff showed presence of mind. She assisted Mr Cahill to a water hydrant to cool his burns. She took over from Ms Lea the emergency call for an ambulance because Ms Lea was flustered and unable to describe the location. The plaintiff then proceeded to tape off the area of the pit to prevent any further injury to anyone. She remained on the site performing her duties until the evening. She returned to the same site the next day and worked a full shift. 3. I am satisfied that the plaintiff was in the order of 20 metres from the pit when the explosion occurred. That distance is not of great significance to the question of the degree of upset that the plaintiff would have experienced upon seeing the men immediately after they sustained their injuries. However I am satisfied that the plaintiff believes that the distance has a bearing upon the strength of her claim. Her inconsistency about the matter arises from her endeavouring to advance her case. It contributes to my lack of confidence in her reliability as a witness, generally. 4. I do not accept the plaintiff's evidence about Mr Cahill having been seated on the excavator or Mr Forster having exclaimed and said he had cut himself. There is no foundation for these purported recollections in any contemporaneous document. The earliest suggestion from the plaintiff that she had walked past the pit and heard conversation of the workmen, or that Mr Cahill had been seated on the excavator, or that she was only 10 feet away from the explosion, had appeared in a statement made to an insurer's investigator on 25 February 2014. That was nearly two weeks after the plaintiff had first claimed that she had suffered psychiatric injury, which occurred when she visited a general practitioner on 13 February 2014. I infer that these belated additions to the plaintiff's narrative are intended by her to enhance her case that the workmen were negligent in their handling of the power tool. The embellishments add to my reservations about the plaintiff's credit. 5. The evidence is very sparse about the extent of the injuries sustained by Messrs Forster and Cahill. No clinical description has been tendered. Mr Cahill was interviewed by the inspector at WorkCover's Gosford office on 29 November 2013. Mr Forster was interviewed there on 10 December 2013. I infer that both men had been discharged from hospital by those dates, respectively. 6. The important question with respect to the present claim is what the plaintiff saw of the injuries to these two men at the scene. As earlier noted, the plaintiff said at pars 54 and 55 of her statement that immediately after the explosion she saw the following with respect to Mr Cahill: [He was] walking towards me away from the pit. He looked dazed, what I would describe to be "zombie" like. Brad was burnt on his face and chest, and his hair. I could smell burning flesh. She had ample opportunity to observe Mr Cahill. He was the less severely injured of the two men. 1. With respect to Mr Forster, in par 56 of her statement the plaintiff said that she observed him "rolling around on the ground near the pit and screaming. Other people were helping him." Similarly, in the information provided to Direct Traffic's senior personnel on 1 November 2013 she said that she saw Mr Forster "rolling in the dirt screaming" and she "reported the smell of burning flesh". The plaintiff did not describe in any contemporaneous record, nor has she described in her evidentiary statement or in her oral evidence, any opportunity that she had to observe the extent of Mr Forster's injuries. There is no clinical evidence to confirm her claimed observation of "burnt flesh all over his body from his head, to the top of his boots on his ankles" (see par 56 of her evidentiary statement). The plaintiff was not challenged in cross-examination about this but owing to my general reservation about her credibility, I do not consider that I have sufficient evidence to be satisfied on the balance of probabilities that Mr Forster suffered injuries that could be accurately described as the plaintiff has recounted them. In his interview with the WorkCover inspector Mr Forster described his injuries as "burns to my both arms, my leg, my chest, my neck and my face". 2. There is insufficient evidence from which I could determine on the balance of probabilities whether Mr Forster's clothes were burned away or how confronting the appearance of his injuries may have been. I am not able to make any finding to the civil standard of proof concerning an accurate description of how Mr Forster's injuries may have presented to the plaintiff under the limitations of her opportunity for observation. As she describes the scene, Mr Forster was rolling in the dirt 20 metres from her, being attended by other people, and she made no further or closer observation but instead was occupied first with assisting Mr Cahill, then with calling the ambulance and securing the perimeter of the accident location. 3. The extent of the trauma to which the plaintiff was exposed, so far as I am able to determine it on this evidence, was the sound of the explosion; the immediate awareness that two men had suffered severe burns; the smell of burnt flesh; the observation of Mr Cahill who was able to walk but was dazed and had suffered visible burns to his face, chest and hair and the observation of Mr Forster evidently in significant pain from more severe burns, the extent of which and the appearance of which to the plaintiff has not satisfactorily established. Duty of care owed by the second defendant 1. The plaintiff alleges that Superior Civil owed to her, as a person working in proximity to Superior Civil's activities, a duty to exercise reasonable care not to cause her mental harm. She alleges that this duty was breached directly by Superior Civil in that it failed to institute, supervise and enforce a system of working that would be reasonably adapted to preventing one of its workmen from using a powered reciprocating saw to cut through conduit into live high-voltage cable, causing an electrical arc that would injure himself or others and that would create a traumatising spectacle for persons nearby. 2. Superior Civil denies that it owed the plaintiff a duty of care not to cause her mental harm. It relies upon s 32 of the Civil Liability Act 2002 (NSW), which is as follows: 32 Mental harm—duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following— (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 1. For the interpretation of s 32, s 27 provides the following definitions: mental harm means impairment of a person's mental condition. consequential mental harm means mental harm that is a consequence of a personal injury of any other kind and pure mental harm means mental harm other than consequential mental harm. 1. In Optus Administration Pty Limited v Glenn Wright [2017] NSWCA 21 Gleeson JA explained s 32 in these terms: [206] The operation of s 32 and the extent to which it reflected the common law in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 (Tame), was discussed by the High Court in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 (Wicks) at [16]-[30], and again in King v Philcox (2015) 320 ALR 398; [2015] HCA 19 at [75]-[85], in relation to s 33 of the Civil Liability Act 1936 (SA). […] The following propositions, which can be taken from Wicks, have relevance to the present case. [207] First, s 32 defines or controls what otherwise would be a duty of care arising out of the common law for damages for mental harm resulting from negligence. The provision is cast negatively. The statutory condition for the establishment of a duty of care identified by s 32(1) is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken: Wicks at [22]. [208] Secondly, whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be determined with regard to "the circumstances of the case". Some such kinds of circumstance are identified in s 32(2), but s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances: Wicks at [23]. [209] Thirdly, s 32 is to be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by the High Court in Tame. Consistent with Tame, s 32 assumes that foreseeability is the central determinant of the existence of any duty of care. Further, and consistent with Tame, circumstances of a "shocking event" and the existence and nature of any connection between perpetrator and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care: Wicks at [26]. [210] As Gleeson CJ observed in Tame at [35], the existence of a "sudden shock" is a relevant factual indicator of the presence or absence of the proximity of a relationship between the plaintiff and the defendant. As Gaudron J further noted in Tame (at [66]), under the general law, in many cases, the risk of psychological or psychiatric injury will not be foreseeable in the absence of a sudden shock. Similarly, the Court held in Wicks that "sudden shock", as used in s 32(2)(a), is no more than one of several circumstances that bear upon whether a defendant "ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken": Wicks at [27]. [211] Fourthly and importantly, the focus of s 32 is "mental harm" and "a recognised psychiatric illness", not "mental or nervous shock" (as used in both ss 29 and 30 of the Civil Liability Act): Wicks at [29]. The expression "sudden shock" in s 32(2)(a) may be understood as referring to an event or a cause. This is different to "mental or nervous shock" which refers to a consequence: Wicks at [30]. The Court emphasised (at [30]) that the notion of "shock" was central to both expressions, and referred to the following dictionary definition of "shock": … the sense of a "sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion ([occasionally] joy), and tending to occasion lasting depression or loss of composure": Oxford Dictionary, 2nd ed (1989), vol xv at 293, meaning 4a. [212] Fifthly, the question of foreseeability must be judged before the relevant incident happened: Wicks at [33]. 1. Gleeson JA was in dissent concerning the result of that appeal but the judgments of the other members of the Court cast no doubt upon his Honour's exposition of the law. Applying the stated principles, I take into account as one of the "circumstances of the case" (see s 32(1)) that an electrical sub-contractor in the position of Superior Civil would appreciate that if reasonable care were not taken in its work on the conduits, so that a high voltage live cable might be cut with a metal tool, the result might be a powerful electric arc. Such a sub-contractor would further appreciate that a high voltage arc would generate heat explosively; that it would likely cause serious burns to the workmen involved and that the sudden appearance of their injuries, to which the attention of a bystander would be attracted by the noise and by their distress, would have all the characteristics of "a sudden shock" (see s 32(2)(a) and [211] of Gleeson JA's judgment). With regard to s 32(2)(b), I find that in these circumstances Superior Civil ought to have foreseen that a person working in proximity to Superior Civil might witness the workmen actually being injured or at least being put in peril by such an electrical explosion. 2. Post-traumatic stress disorder is a "recognised psychiatric illness" within the meaning of s 32(1). It is a matter of wide common knowledge that this or a similar psychiatric condition may be induced in a person who, in the immediate aftermath of an accident, is confronted by the sight of severe physical injuries sustained by another person. Further, I regard it as widely known that the class of people who acquire such a disorder as a result of experiences like this is not limited to those of excessive sensitivity or mental fragility. It is notorious that trained soldiers and first responders to civilian accidents may suffer post-traumatic stress disorder. I am satisfied that Superior Civil ought to have foreseen that a person of normal fortitude working on the site might suffer this disorder if he or she should be confronted by the sight of a badly burned workman immediately following an electrical explosion in the person's near vicinity. I consider such an outcome was foreseeable to Superior Civil, for the purposes of s 32(1), notwithstanding the absence of any relevant relationship between the plaintiff and either Mr Forster or Mr Cahill or between the plaintiff and Superior Civil (see pars (c) and (d) of s 32(2)). 3. This conclusion on foreseeability is supported by the decision of the High Court in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383. In that case the relationship between the party alleged to have owed a duty of care and the psychiatrically injured plaintiff was that of employer and employee. The High Court's conclusion with respect to foreseeability would be equally applicable to a relationship between a sub-contractor and an employee of another sub-contractor on the same site, as in the present case. The following extract is from the judgment of Barwick CJ at p 387 and pp 389-390: The appellant employed the respondent as an engineer in its powerhouse at Mount Isa. It also employed there two electricians, by the name Kuskopf and Docherty. On a day when the respondent was working in the powerhouse the two electricians carried out a test on a switchboard in the powerhouse using for that purpose a multi-meter. Because of their mishandling of this instrument a short circuit of high tension current was caused with the result that the two electricians were severely burned by an intense electric arc. The short circuit caused a loud noise which was heard by the respondent as an explosion where he was working on the floor below that where the switchboard was located. The respondent who was carrying out the duties of an assistant charge engineer hastened to the scene and found Kuskopf, with whom he was unacquainted, naked and, as he put it, "just burnt up". He went to his aid supporting and assisting him down through the building to ground level where he was placed in an ambulance. The respondent did not see Docherty but later heard that Docherty had died the day following the incident. Kuskopf lived about nine days and thereafter the respondent learnt of his death. […] I cannot doubt that it could properly be held that as an employer such an owner-operator could and ought to foresee that misuse of such an instrument in connexion with a high tension current of electricity might, through an intense electric arc, cause an employee in proximity to the conductors carrying such current to be severely burnt. I think it could be held that such 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. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances. 1. As Gleeson JA pointed out in Optus Administration Pty Limited v Glenn Wright at [207], s 32(1) is cast in negative terms and "controls what otherwise would be a duty of care arising out of the common law for damages for mental harm resulting from negligence". At [36] Basten JA expressed the position in these terms: A general law principle is, however, subject to statutory variation. One effect of s 32 of the Civil Liability Act is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that "a person of normal fortitude" might (b) "in the circumstances of the case" suffer (c) "a recognised psychiatric illness", if reasonable care were not taken. 1. Upon the considerations that I have identified at [39]-[40] above, Superior Civil's activities on the site gave rise to a duty at common law to exercise reasonable care to avoid accidents that might cause severe injuries to its own personnel that, in turn, might expose other workers on the site to traumatic experiences capable of causing pure mental harm. The negative control in s 32 is not engaged, because the terms of subs (1) are satisfied, and accordingly Superior Civil owed a duty of care to the plaintiff. No direct breach of duty by Superior Civil 1. I reject the plaintiff's argument that Superior Civil breached the duty of care it owed to the plaintiff by failures of system, supervision and control. In final submissions these alleged breaches were expressed in the following terms (emphasis added): 17b … failing to prevent Forster from using the reciprocating saw … 17c … failing to properly supervise the work being carried out by Forster and ensuring [scil failing to ensure] that he did not use the reciprocating saw 17d … failing to ensure that he [Mr Forster] used the correct method of carrying out the work 1. Superior Civil's duty was to exercise reasonable care, not to "prevent" anything from happening or to "ensure" that anything did not happen. The risk was that a live high voltage cable would be cut through and cause electrical explosion, injury to Superior Civil's own workmen or others nearby and mental harm to bystanders confronted with the injuries. In order to address that risk – and, no doubt, the risk of damage to property - Superior Civil prepared a suitable and sufficient Safe Work Method Statement that prohibited the use of power tools to cut existing conduits, that is, conduits that were already installed and covered. The document identified the risk associated with the use of power tools in that situation. Superior Civil took reasonable and effective steps to see that its employees, including Messrs Forster and Cahill, read the document and signed their acceptance of it. Superior Civil's SEWMS 5 for Cable Pulling is a straightforward, clearly expressed document. The concepts that it conveys would be readily understood by any workman. In addition to signing the document, Superior Civil's employees were repeatedly told by the company not to use a reciprocating saw on in-ground conduit because doing so would be too dangerous. On 30 October 2013, when work on existing conduits was to be undertaken, SEWMS 5 was drawn to the attention of Messrs Forster and Cahill before the day's work commenced, at the Daily Site Risk Assessment meeting, the record of which they also signed. 2. I am unable to see what more Superior Civil could have done to discharge its duty to exercise reasonable care. I do not consider that there was any lack of "proper" supervision. Realistically, the only further supervisory step that could have been taken to secure compliance by Messrs Forster and Cahill with the company's explicit and emphatic safety instruction would have been for senior personnel of the company to follow the men around the site to ensure that they did not procure a reciprocating saw from another contractor and/or to stand in or adjacent to the pit when Messrs Forster and Cahill entered it to verify that they had not procured and were not going to use a reciprocating saw. Such measures would be well beyond the requirements of reasonable care on the part of this contractor, in my view. Direct breach of duty by Superior Civil has not been established. Superior Civil's vicarious liability for its employees' negligence 1. The plaintiff also alleges in her statement of claim that Superior Civil is vicariously liable for tortious conduct of each of its employees, Messrs Forster and Cahill. In the plaintiff's closing written submissions this was put as follows: 17a The breach of duty by Forster using the reciprocating saw in circumstances which directly caused the explosion. Superior Civil was vicariously liable for his breach of duty to the plaintiff. 1. Notwithstanding the apparent limitation to the position of Mr Forster, I will consider the pleaded case of vicarious liability for the alleged torts of both workmen. This aspect of the case requires determination of whether a duty of care was owed by the employees, personally, to the plaintiff and if so whether that duty was negligently breached. Those two elements, together with damage, are essential for there to be liability in the employees, which Superior Civil may bear vicariously. It is material in this case to recognise a distinction made by Professor Fleming in Law of Torts, 10th ed (2011) at p 439 - as follows: The employer's liability is not based on breach of any personal duty that the employer owed, but on the servant's tort being imputed to the employer. That this is the true nature of vicarious liability has not been seriously doubted in modern times, despite an occasional unorthodoxy in dealing with certain exceptional situations. 1. In Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36 Fullagar J analysed vicarious liability in the same way as Professor Fleming. His Honour said at pp 56-57 (citation omitted): [The common law rule of a master's liability for his servant's torts] is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another. 1. In that case a person in charge of unloading a ship was, arguably, liable to the plaintiff in damages for injury to a workman, arising from the person in charge having breached a statutory duty imposed upon him by regulation. The High Court held that the employer of the person in charge was not vicariously liable. Three of the justices determined the appeal adversely to the plaintiff on the ground that the doctrine of vicarious liability only imputed the employee's acts, not his liability, to the employer. Their Honours' held that as the regulation did not fix the employer with the relevant duty, the employer did not incur liability when the employee's acts were attributed to it. Kitto J said this at pp 60-61 (citations omitted): [It] is often said that a master is liable for the "torts" or "wrongs" of his servant committed in the course of the employment, when all that is in mind is that a master is answerable for acts of his servant which are done in the course of the employment and depart from a standard or course of conduct which happens to be obligatory upon both master and servant. […] It seems to me that "vicarious liability" should be recognised as an example of transferred epithet, and as referring to a liability for vicarious acts […]. The master's liability, when it exists, is not a liability substituted for that of the servant. It exists, I think, not because the servant is liable, but because of what the servant has done. It is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness which, in an action against the servant, it may be held to have because of considerations personal to the servant. The master "is to answer for the act as if it were his own" […]. He is not to answer for the servant's liability, but for his act […]. See also Webb J at p 54, citing the decision of Uthwatt J in Twine v Bean's Express Ltd [1946] 1 All ER 202, and Taylor J at pp 68-69. This is directly contrary to the opinion of Fullagar J quoted in the previous paragraph. 1. For the proposition quoted at [47] above, Professor Fleming cites Credit Lyonnais Nederland NV v Export Credits Guarantee Department [2000] 1 AC 486. In that decision Lord Woolf MR, with the concurrence of all members of the House of Lords who heard the appeal, quoted a "much approved statement in Story on Agency" that included the following (at p 494): But although the principal is thus liable for the torts and negligences of his agent, yet we are to understand the doctrine with its just limitations, that the tort or negligence occurs in the course of the agency. For the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency […]. 1. Lord Woolf MR continued as follows: This statement makes clear the principal on which vicarious liability depends. It is that the wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole approach to vicarious liability that the employer or principal should not be liable for acts of the servant or agent which are not performed within this limitation. […] This case therefore raises starkly the question of whether, in the case of a joint tort [committed by an employee jointly with a non-employee], it is sufficient to make a master liable if the acts of his servant for which he is responsible do not in themselves amount to a tort but only amount to a tort when linked to other acts which were not performed in the course of the employee's employment. […] In resolving this issue, as a matter of principle it does not matter whether there is one tortfeasor or two tortfeasors or whether both tortfeasors are employees or only one is an employee. The conduct for which the servant is responsible must constitute an actionable tort and to make the employer responsible for that tort the conduct necessary to establish the employee's liability must have occurred within the course of the employment. […] For vicarious liability what is critical, as long as one of the joint tortfeasors is an employee, is that the combined conduct of both tortfeasors is sufficient to constitute a tort in the course of the employee's employment. 1. In Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224 the House of Lords reiterated that the principle of vicarious liability concerns imputation to an employer of the torts, not merely the acts, of an employee. In the words of Lord Nicholls at [7]: Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. See also Lord Hope at [52], [57] and [60] 1. Their Lordships did not accept the reasoning of Kitto J in Darling Island Stevedoring & Lighterage Co Ltd v Long, Lord Nicholls referring to it (at [15]) as an "'employer's tort' analysis of vicariously liability". Lord Nicholls said that the House had "firmly discarded this basis in favour of the 'employee's tort' approach" and continued as follows: An employer's liability is not confined to responsibility for the acts done by an employee in the course of his employment. An employer's liability goes further. He is liable for the wrongs of his employee committed in the course of employment. Reasons of policy so dictate. The employee's wrong is imputed to the employer. 1. His Lordship cited extensive authority for this proposition and said that it seemed likely also to be the law in Australia, referring to Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [34]-[35]. In New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [40], [196] and [299] the doctrine is consistently referred to as one concerning liability of the employer for the employee's tort, not his or her acts. 2. The above is long way around to the conclusion that the plaintiff's case on vicarious liability of Superior Civil depends upon her first establishing that torts were committed by Mr Forster and/or Mr Cahill individually. That in turn requires proof that they owed a duty to exercise reasonable care not to cause an electrical explosion in which they might be severely injured and might thereby cause psychiatric injury to a bystander such as the plaintiff. Section 32 of the Civil Liability Act must therefore be considered in relation to the two workmen individually. All that I have said at [39]-[43] concerning the operation of that section with respect to Superior Civil applies equally to Messrs Forster and Cahill as individuals. These men, engaged in checking the status of existing conduits, ought reasonably to have foreseen that, if they did not take care, a high voltage live cable might be cut by a metal tool, resulting in an explosive electrical arc that might cause them severe injury. They ought to have foreseen that the report of such an explosion might attract the attention of anyone nearby and that the event of them suddenly exhibiting severe burns would have all the characteristics of a "sudden shock". Two individual workers such as Mr Forster and Mr Cahill ought to have foreseen that, in a bystander of normal fortitude, this experience might induce post-traumatic stress or a similar disorder. I am satisfied that the negative control in s 32(1) is not engaged and that the two workmen owed to the plaintiff a personal duty to exercise reasonable care not to cause her mental harm. 3. The risk against which reasonable care had to be taken is described in the preceding paragraph. The scope or content of the duty was to perform the work with reasonable care to avoid cutting a live cable with a metal tool. The duty could readily have been discharged by each of the men following their employer's very clear, simple and intuitive instruction not to use a power tool but instead to avail themselves of the hand tools that the employer placed at their disposal. Mr Forster's breach of duty is particularised as using the reciprocating saw. Mr Cahill is alleged to have been negligent in failing to stop Mr Forster or to warn him of the danger of using the tool. I am satisfied that Mr Forster failed to exercise reasonable care in the respect alleged. He did so while acting within the scope of his employment, adopting a negligent and unauthorised mode of doing work that was authorised by his employer. Mr Cahill participated in this negligent conduct. He held back the upper layers of conduit with his shovel and assisted Mr Forster to perform the assigned task in an unsafe manner and in contravention of Superior Civil's instructions. 4. Subject to the plaintiff establishing that the negligence of the two workmen resulted in her suffering post-traumatic stress disorder, vicarious liability for the want of reasonable care on the part of both men would attach to Superior Civil as their employer. Against this vicarious liability Superior Civil has invoked s 30 of the Civil Liability Act. The relevant parts of that section are as follows: 30 Limitation 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. 1. For the purposes of considering the operation of s 30 in relation to the present case, "the victim" is Mr Forster and Mr Cahill and "the defendant" is Superior Civil. If the section applies then I would hold that the plaintiff is precluded by subs (4) from recovering damages for any "pure mental harm" that she might prove, on the ground that the common law in conjunction with the Civil Liability Act would prevent the recovery of damages from the defendant (Superior Civil) by or through the victim (Mr Forster and/or Mr Cahill). I would so hold on the basis that neither Mr Forster nor Mr Cahill could prove any negligent breach of the duty of care owed to them by Superior Civil as their employer. That is for the reasons already given at [45]-[46] above, concerning Superior Civil's exercise of reasonable care to prevent harm to its employees in the execution of this work - by issuing appropriate safety instructions, making available suitable tools and thereby adopting a safe system. As earlier stated, the injuries to Messrs Forster and Cahill were caused solely by their own wilful and flagrant disregard of safety instructions that had been issued for their protection. 2. The critical question is, therefore, whether s 30 applies. By force of subs (1), applicability of the section depends upon the "victim" having been "injured … by the act or omission of the defendant". In the circumstances of this case it cannot be said, within the scope of a sensible interpretation of s 30(1), that either Mr Forster or Mr Cahill ("the victim") was injured by any act or omission of Superior Civil ("the defendant"). They were injured by their own acts carried out in disregard of Superior Civil's instructions. 3. For these reasons s 30 has no application and constitutes no bar to the plaintiff recovering damages from Superior Civil if she can substantiate that she sustained psychiatric injury on 30 October 2013. Alleged duty of care owed by the first defendant to the plaintiff 1. The plaintiff has not argued that the first defendant is vicariously liable for negligence of Superior Civil in breach of a duty of care owed to her by that company. She could not advance such a proposition because Superior Civil was clearly a sub-contractor to the first defendant and any liability of Superior Civil for a tort committed by it against the plaintiff would not be imputed to the first defendant vicariously. In any event, I have found that Superior Civil did not breach its duty to the plaintiff and it has no liability for which any other party could be vicariously responsible. The liability in negligence of Messrs Forster and Cahill, if the plaintiff can prove psychiatric injury and damage, could only be imputed to the employer of those men, not to the first defendant as well: Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [33]. 2. The first defendant did not itself undertake work on the conduits from which a duty of care to the plaintiff could arise. In closing written submissions the plaintiff argued that the first defendant incurred direct liability to her upon the following basis: 18b The breach of duty by [the first defendant] to the plaintiff by failing to properly supervise the works and failing to ensure [that] Forster did not use a reciprocating saw to perform his duties at the time. 1. In support of this the plaintiff submits that the first defendant owed to her what was described as a "direct" duty and a "special duty". The plaintiff submits that the first defendant was "under a duty not only to use reasonable care but to ensure that reasonable care is taken by an independent contractor" (closing written submissions, par 20). The plaintiff cited the judgment of Mason J (as his Honour then was) in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at p 687. The plaintiff's closing written submissions do not address s 32 of the Civil Liability Act in relation to the first defendant's alleged duty to her. Even before coming to the "negative control" provided for in that section, I am unpersuaded that the first defendant owed to the plaintiff a personal duty at common law to ensure that its sub-contractor, Superior Civil, in carrying out its work in the pit, would take reasonable care to address the risk of an electrical explosion, injury to Superior Civil's workers and psychiatric trauma to the plaintiff. 2. In Kondis v State Transport Authority Mason J held that an employer is under a personal and non-delegable duty to his or her employee to ensure that reasonable care is taken, including by a sub-contractor of the employer. His Honour referred to authorities supporting the same stringent duty arising from the relationships of hospital to patient, school to student, invitor or to invitee - and others. The plaintiff provided no argument, either from the decided cases or from the particular facts of this matter, to substantiate that the first defendant owed to the plaintiff this higher level duty, to ensure that reasonable care would be taken by others, to avert realisation of the relevant risk. The plaintiff's closing written submissions contain no factual or legal reasoning to demonstrate that the first defendant was "so placed in relation to the [plaintiff] as to assume a particular responsibility for [her] safety, in circumstances where the [plaintiff] might reasonably expect that care will be exercised" - to adapt the criterion propounded by Mason J in Kondis v State Transport Authority at p 687. The plaintiff was not an employee of the first defendant. There is no basis in law for holding that the first defendant was under a duty to ensure that reasonable care would be taken by Superior Civil to avert psychiatric injury to the plaintiff through the performance of its sub-contract work. 3. The plaintiff alternatively relied upon what was termed in her closing written submissions "the entrepreneur principle", expressed by Mason J in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 in the following terms (at p 31) (emphasis added): If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. 1. Again in relation to this way of constructing a duty owed by the first defendant to the plaintiff, the closing written submissions offer no analysis of the facts that might engage the "entrepreneur principle". The central aspect of the relevant risk was that a high voltage cable would be cut in the course of examining conduits in the pit. The reasonable precautions that were necessary to avoid realisation of that risk had nothing to do with issuing "directions as to where and when the work is to be done [or co-ordinating] the various activities". What was required was that the inspection of conduits in the pit be done with reasonable care, using hand tools - a matter that was entirely within Superior Civil's scope of sub-contract works and in the hands of its employees. The risk could not be addressed by organisation or direction from the first defendant as an entrepreneur exercising responsibility for overall site co-ordination. 2. In closing written submissions the plaintiff set out this further passage from Stevens v Brodribb Sawmilling Company Pty Ltd, from the judgment of Brennan J (as his Honour then was), at pp 47-48 (citations omitted): An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk […] and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility. 1. This passage provides no support for the claim that the first defendant owed a duty to the plaintiff to supervise the performance of Superior Civil's work to any extent, let alone to the extent of "ensuring" that Mr Forster did not use a reciprocating saw. The plaintiff's submissions contain no analysis of the present facts to explain how Brennan J's statement of principle could be recruited in support of her case. The principle is not engaged here. 2. The plaintiff alternatively submitted that Mr Rossi, individually, owed a duty to the plaintiff to exercise reasonable care to avoid mental harm to her through the effects of an explosion caused by cutting a high voltage cable. She submitted that the first defendant is vicariously liable for a tort committed by Mr Rossi constituted by breach of this duty. This was expressed in the plaintiff's closing written submissions in the following terms: 18a The breach of duty by Rossi failing to supervise the works and preventing Forster from using a reciprocating saw when performing the duties he was performing at the time of the explosion, knowing as he did that the use of a reciprocating saw was prohibited by the Superior Civil SWMS-5 and by a safe work method of [the first defendant]. [The first defendant] is vicariously liable for the breach of duty to the plaintiff by Rossi. 1. This formulation is insupportable at more than one level. The relevant "works" comprised the inspection of existing conduits in the subject pit, including cutting small viewing ports. Mr Rossi had no authority, let alone a duty, to supervise the performance of that work. The task was within the scope of work that his company had sub-contracted to Superior Civil. Even if Mr Rossi owed a duty to the plaintiff in relation to the performance of Superior Civil's sub-contract work, that could only have been a duty to exercise reasonable care, which would have been discharged by verifying that Superior Civil's personnel were instructed to use a safe method, not a reciprocating saw. A common law duty of care would not require that Mr Rossi "prevent" a breach of this instruction. No authority is cited by the plaintiff for the proposition that an employee or officer of a contractor owes to other workers on site – not being his own or his company's employees - a duty to supervise with reasonable care the execution of sub-contract work by sub-contractors' employees. 2. The plaintiff's closing submissions do not address s 32 of the Civil Liability Act in relation to the alleged duty owed by Mr Rossi to the plaintiff. One would never reach s 32 because there is no starting point of a common law duty to which the negative control of that section could be applied. I reject the plaintiff's contentions that Mr Rossi owed a duty to her and that he committed a tort for which the first defendant is vicariously liable. 3. The plaintiff's case against the first defendant fails upon each of the alternative bases she has advanced and there will be a verdict and judgment for the first defendant, with an order that the plaintiff pay the first defendant's costs. Events after the accident up to 13 February 2014 1. In cross-examination the plaintiff agreed that on the evening of the accident Ms Van Der Ende and Mr Spilstead, a director of Direct Traffic, attended at the plaintiff's home. According to an email record of this attendance prepared by Ms Van Der Ende on 14 February 2014, the plaintiff was encouraged to attend counselling the next day and not to return to the same job site. She agreed to see a counsellor but said she wanted to go back to the site to support the client. The plaintiff did attend the same site on 31 October 2013 and worked a full shift. Ms Van Der Ende recorded that, when contacted that evening, the plaintiff said she was doing well. The plaintiff had the day off on Friday, 1 November 2013 and went to the company's office to complete the Incident Report. She was then informed that counselling had been arranged for her for the following Monday and she was paid for that day. 2. The plaintiff agreed in cross-examination that after the counselling session on Monday, 4 November 2013 she told Ms Van Der Ende that she did not need to go back for any further counselling and that she would advise if she did not feel all right. On each of the next two days Ms Van Der Ende contacted her to check on her welfare. The plaintiff agreed that in the second of these calls, on 6 November 2013, she said words the effect, "Don't worry about calling me […]. If I'm unwell I will definitely tell you". Ms Van Der Ende recorded that she advised the plaintiff three weeks later, about the end of December, that the two injured men were out of hospital. In cross-examination the plaintiff disputed that she was so informed. 3. The plaintiff acknowledged in cross-examination that she continued to work for the whole of November and December 2013 and January 2014. By her own admission she had been in frequent conflict with her fellow workers throughout her employment with Direct Traffic. The plaintiff was born in 1968 and was 41 years old when she commenced casual employment with the company. She was nearly 45 at the date of the accident. Her evidentiary statement includes the following: 26 Unfortunately, I wasn't very well liked by my co-workers at Direct Traffic. I'm really not sure what this stemmed from, however, I put it down to butting heads over safety compliance issues on work sites. As a Team Leader it was my responsibility to ensure the safety of the traffic control on site. It's a job I took very seriously. Sometimes I would have to pull people up on their work which wasn't always taken very well by [them]. I just wanted to put my head down and do my job, but I acknowledge that I can have an abrasive personality, that means I don't always find it easy to get along with people. 40 There was a period in 2011 where I was having problems with a co-worker (our [daughters] had actually been involved in a fight) and I left working for Direct Traffic for alternative employment. I returned to Direct Traffic a few months later once the co-worker had left. The daughter referred to in par 20 was born in 1991 and would have been 20 years old in 2011. 1. In the plaintiff's statement to the insurer's representative on 25 February 2014 she said this: 25 Since I commenced employment with [Direct Traffic), there has been a lot of problems with traffic controllers and I am classified as "the bitch". This is because I take my job seriously and am adamant about ensuring traffic controllers are doing their job correctly. Point-blank, most traffic controllers are lazy and just don't want to work. I have advised [Ms] Van Der Ende on numerous occasions not to place lazy workers with me as the job is fast paced and can be dangerous. 26 The work environment is the most "bitchy" place I have ever seen and there is a lot of backstabbing going on as most people just want to climb the ladder and ensure permanency. I don't get involved as I just want to do my job, get paid and go home satisfied at the end of the day. 27 [Ms] Van Der Ende and I have had plenty of meetings about these issues and it seems to go in one ear and out the other. Sometime at the beginning of 2013 there were a lot of traffic controllers that did not want to work with me. There were a lot of new men and a lot of them did not like to receive instructions from me as a female. […] Management kept putting on traffic controllers that they know are not getting on with me. Because there are a lot of traffic controllers that do not like me, they tell others about me and as they are like sheep, they follow. 28 I am a very straightforward person and a very blunt person and a lot of people do not like this, though some people do. […] 29 In my numerous discussions with [Ms] Van Der Ende [she] has not said much and only stated things I wanted to hear. In early 2013 she tried to put me with traffic controllers that got on well with me but this only lasted two weeks. […] 1. From late December 2013 the plaintiff came under stress from sources unrelated to the incident on 30 October 2013. She agreed in cross-examination that from about the end of December 2013 she was on notice to vacate the house in which she then resided with her male partner. By the end of January 2014 she had learned that her partner required surgery and would be off work for several months. She said that this was going to impose a financial strain on her. The combined pressures caused her to approach Ms Van Der Ende on 4 February 2014 to request more work. 2. On 14 February 2014 Ms Van Der Ende sent an email to Direct Traffic's workers compensation insurer, recording interactions with the plaintiff since the event of 30 October the previous year. She noted that at 7:00 am on 11 February 2014 the plaintiff had an argument with Mr Spilstead over the phone concerning a misunderstanding on a job site. The plaintiff spoke angrily. She came into the office that afternoon to apologise. In cross-examination the plaintiff claimed not to remember this but it substantially accords with parts of the statement that she made to the insurer's representative on 25 February 2014 and I accept Ms Van Der Ende's record. Ms Van Der Ende further noted in her email that on 13 February 2014 the plaintiff had informed the company that one of her twin sons, then aged 17, had been taken to hospital, for which she wanted time off work. She later advised that her son had been discharged. In cross-examination the plaintiff denied these communications concerning her son's hospitalisation but I have no reason to doubt that they occurred, based upon Direct Traffic's contemporaneous business record. 3. The plaintiff saw Dr Lim at the Eagle Vale Medical Centre at 3:10 pm on 13 February 2014. In consultation with Dr Lim the plaintiff asserted for the first time that she had psychological problems arising out of the incident at work in October, including "increasing problems with nightmares, flashbacks" that she said she had experienced over the preceding month. The doctor issued a certificate of unfitness for work for four weeks. Dr Lim considered that the diagnostic criteria for post-traumatic stress disorder were satisfied. 4. According to Ms Van Der Ende's email of 14 February 2014, the plaintiff phoned her at 5:00 pm that day and said: I can't do this anymore, I have had nightmares for a month about the incident in October. I just can't handle working anymore. I have been to the doctor who has given me 4 weeks stress leave and he sent me to a psychiatrist and I have a workers comp certificate here. I accept the accuracy of this as a record of what the plaintiff said. 1. The defendants deny that the plaintiff had suffered, over the month leading up to 13 February 2014, symptoms caused by exposure to the accident; or that she has suffered such symptoms at any time since. The burden of proving these symptoms and establishing a diagnosis of psychiatric injury on the basis of them rests upon the plaintiff. The defendants bear no onus to prove an alternative explanation of the apparent deterioration in the plaintiff's behaviour and mental state from the early months of 2014. However the defendants have adduced evidence tending to show that the plaintiff had long-standing psychiatric symptoms of depression and anxiety dating from, at latest, 2006, a drug abuse misuse that pre-dated the incident and a dysfunctional personality that led to frequent conflict at work. The defendants contend that it was these problems, coupled with the personal and financial pressures to which the plaintiff was subject in early 2014, that caused her to tell Ms Van Der Ende late on the afternoon of 13 February 2013 that she was unable to cope with work. 2. Relying upon Ms Van Der Ende's email of 14 February 2014, I accept that on or before 10 February the plaintiff had been in conflict on a worksite with a co-worker named Miriam Campbell. Ms Campbell had complained that she did not want to work with the plaintiff because the plaintiff was rude. In cross-examination about conflicts at work, earlier episodes of depression and additional stressors in early 2014, the plaintiff gave the following answers: Q. [As] at 13 February 2014, you were having significant problems at your place of work. That's right, isn't it? A. No. Q. There'd been complaints about your behaviour to other staff; that's right, isn't it? A. No. Q. That wasn't anything new though, was it, in your history of Direct Traffic? A. […] at one stage, there was a problem with Direct but it - the problem got sorted and there's never been a problem since. HIS HONOUR Q. What was the stage at which there was a problem, Ms Sdrolias? A. It was a stage, your Honour, where a person that was working there, I had his daughters arrested for assaulting my daughter and he has made life difficult for me. Q. And, when did that occur? A. That occurred late 2010, early 2011. […] KELLEHER Q. And, you'll recall that I asked you questions yesterday about the episode of depression that you suffered in 2011, where you were certified off work for a month. That was following a dispute at work, wasn't it? A. Yes, it was. Q. And, that was on the basis that everyone thought that you were having troubles at work and didn't like you? A. That's correct. Q. So, this wasn't the first time that there had been problems at work, was it? A. This was the first time. Q. I want to suggest to you that there had been, over the years you'd worked at Direct Traffic, a lot of complaints by other employees about your behaviour; that you were rude and overpowering when you were at work. A. That's not true. Q. And, that there were people at Direct Traffic who weren't willing to work with you. A. That's not true. Q. And, what I want to suggest to you is that as at 13 February 2014, you were worried that you were going to lose work because of the complaint made by Miriam Campbell about you. A. That's not true. Q. And, you were further worried because you had the financial stress of your partner not being able to work. That's right, isn't it? A. Yes. That's correct. Q. And, that you had the further stress that one of your sons had been put in hospital on that day. A. No son of mine was put in hospital that day. Q. And, you came in on the evening of 13 February to see both Ms Van der Ende and Mr Spilstead, didn't you? A. Yes, I did. Q. And, you told them that you'd had enough. A. No. That's not the case. Q. I want to suggest to you that you came in and Ms Van der Ende and you discussed the complaint made by Ms Campbell; and as I've said to you, that she asked you to put that in writing and you did not want to. A. No, cause it was never discussed. Q. At 5pm that evening was the first time you mentioned to anyone at work that you'd previously had nightmares about the incident from October in 2013? A. I'm not sure if it was that date or not. Q. Well 13 February 2014, Ms Sdrolias, was the day you went and first saw Dr Lim at the Eagle Vale Medical Centre, wasn't it? A. Yes. Q. And, that was the first time you had sought any medical treatment in relation to what you say happened on 30 October 2013, isn't it? A. That's correct. Q. When you saw Ms Van der Ende and Mr Spilstead, you told them that you had a workers' compensation certificate certifying you unfit for work for four weeks. That's right, isn't it? A. No, it's not. I actually rang Ms Van der Ende I rang Louisa and told her over the phone. […] Q. So, it's on a telephone call? A. Yes. HIS HONOUR Q. When you refer to Louisa, is that Ms Van der Ende, is it? A. Yes, your Honour. It is. KELLEHER Q. What I want to suggest to you is that it was a whole range of other factors, unassociated with the incident on 30 October 2013, that caused you to go off work on that day. A. No. No. 1. To a substantial extent, the plaintiff's denials in the above passage are inconsistent with the signed statement that she provided to the insurer's representative on 25 February 2014 and with her evidentiary statement - quoted, respectively, at [76] and [77] above. In those statements she acknowledged that there had been many complaints about her by other employees over the years, not just the one in 2011, and that a number of other personnel of Direct Traffic did not want to work with her. Although she did not acknowledge it to cross-examining counsel, it is clear that her consultation with Dr Lim was the first occasion on which the plaintiff had suggested to anyone that she had suffered nightmares or any psychological effects as a result of what happened on 30 October 2013. There is no evidence in the case of any earlier report to any person. The plaintiff's claimed psychiatric injury Particulars of injury 1. The plaintiff's Updated Statement of Particulars filed on 20 May 2020 specifies the injury received as "chronic post-traumatic stress disorder". The document lists the plaintiff's alleged disabilities in non-specific and repetitive terms, the substance of which appears from following items: Significant depressive symptoms Significant anxiety symptoms Recurrent nightmares Persistent negative thoughts Avoidant behaviour Loss of enjoyment of life Ongoing irritability Poor concentration Insomnia Tearfulness and hypersensitivity Psychiatric specialists' reports 1. The plaintiff relies upon reports of the following psychiatric specialists to substantiate a diagnosis of chronic post-traumatic stress disorder: Associate Professor Michael Robertson, 14 April 2014 Dr Ralph Ilchef, 19 November 2014, 7 September 2015, 3 May 2016 and 19 December 2016 Dr Abishek Nagesh, 19 July 2019 - 1 June 2020 (nine reports) Dr Ben Teoh, 10 April 2016, 26 July 2018, 2 April 2019 1. Associate Professor Michael Robertson's report was provided at the request of Direct Traffic's workers compensation insurer, by way of a second opinion to that of Dr Lim. Doctors Ilchef and Nagesh have treated the plaintiff in succession from late 2014. Doctor Teoh has provided medicolegal reports for the purposes of the proceedings. In February 2014 Dr Lim referred the plaintiff to a psychologist, Ms Evelyn Walker, who counselled the plaintiff in a number of sessions during 2014 and provided three brief reports. These do not provide any significant assistance in determining the contested issue of whether the plaintiff suffers or has suffered post-traumatic stress disorder in consequence of the incident on 30 October 2013. 2. The defendants rely upon a report of Dr C Roldan, a clinical psychologist, dated 22 June 2018 and reports of the following psychiatrists: Dr JA Roberts, 29 October 2015 and 11 November 2015 Dr Doron Samuell, 20 August 2018 Dr Leonard Lee, 6 September 2019 1. Doctors Teoh, Samuell and Lee took part in a conclave on 25 February 2020. The report of that conclave is in evidence. Diagnostic criteria of post-traumatic stress disorder 1. The psychiatrists' reports all proceed on the basis that in order to diagnose post-traumatic stress disorder they would have to be satisfied, first, that as a result of witnessing the immediate aftermath of the electrical explosion, the plaintiff suffered and continues to suffer some form of re-experiencing of the event. She claims that she suffered "flashbacks", which I infer means intrusive and involuntary memories of the event during working hours, as well as nightmares. From the psychiatrists' reports it appears that they would regard upsetting dreams with content related to the event as a relevant intrusive symptom. 2. Secondly, the psychiatrists' opinions are premised on it being a necessary criterion of post-traumatic stress disorder that the plaintiff should have exhibited some form of avoidance behaviour; that is, that she has avoided thoughts or feelings that refresh memories of the incident or that she has avoided places or activities that have that effect. Thirdly, the psychiatrists have considered that negative changes in thought following the incident are essential to the diagnosis; for example, that the plaintiff blames herself regarding the incident and/or has lost interest in activities that were previously enjoyed and/or has suffered some other negative development in her thoughts. 3. All of these diagnostic criteria are heavily dependent upon the veracity of the plaintiff's self-report. Her unreliability in this respect creates a significant obstacle to her establishing on the balance of probabilities that she has suffered the alleged psychiatric injury as a result of the October 2013 incident. First report of symptoms – 13 February 2014 1. Dr Lim's initial diagnosis of the disorder rested upon the plaintiff's claims that she had suffered "many recurrent and intrusive recollections of the event including being able to smell the burning flesh, recurrent nightmares, flashbacks" for a month up to 13 February 2014; that she suffered "repeated stress and anxiety being back at work in similar situations" and that she had "thought of blame and guilt towards herself for not being about to help the injured co-workers and for removing herself from danger first". That description of symptoms up to 13 February 2014 is repeated in the plaintiff's evidentiary statement. 2. I am not satisfied on the balance of probabilities as to any part of that history. The plaintiff made no complaint of "intrusive recollections" or "recurrent nightmares" at any time following the incident up until her presentation to Dr Lim in mid February 2013. At that time her inability to cope with her employment was, in reality, attributable to quite different causes, being interpersonal conflicts at work exacerbated by financial and family stressors at home. I find it inconceivable that the plaintiff would have suffered alleged flashbacks and nightmares for the month of January and said nothing to her employer, and then sought additional shifts on 4 February 2014. The plaintiff's daughter gave evidence that the plaintiff was "extremely teary" on the night of 30 October 2013 and that over the following months she was "emotionally erratic". Medical opinions given in the case do not suggest that these symptoms, assuming that they were contributed to by the experience of the accident, are indicative of post-traumatic stress disorder. The daughter also said that her mother complained of "having really bad nightmares" but her evidence did not attribute these complaints to any date earlier than September 2014. 3. The plaintiff's alleged anxiety about being back at work in similar situations is contradicted by the fact that she returned to the same site the very next day and thereafter continued in the same line of work through November and December 2013 and January 2014. Her request for additional shifts on 4 February 2014 is the antithesis of avoidant behaviour. The asserted blaming of herself for not helping the injured co-workers and for having first removed herself from danger is not credible. She did assist the co-workers. The plaintiff's own description of the circumstances of the accident shows that she was never in danger herself; there was none from which to remove herself. 4. The plaintiff also told Dr Lim that she was irritable, teary, anxious, lethargic and finding it hard to sleep or to concentrate. The psychiatrists' reports do not suggest that those symptoms, alone, would substantiate a diagnosis of post-traumatic stress disorder in the absence of such features as intrusive thoughts of the incident, avoidant behaviour with respect to things that might stir memories of the incident and development of negative perceptions such as self-blame or feelings of loss of worth. Ass Prof Robertson – 14 April 2014 – "delayed onset" nightmares 1. In his report of 14 April 2014 Ass Prof Robertson accepted the plaintiff's report of the following symptoms from "late January/early February 2014": She experienced regular nightmares about the incident, "the same thing over and over again, seeing the two boys electrocuted". Her sleep was disturbed and she experienced vivid dissociative flashbacks of the event. She was hyper aroused and "obsessed" with the safety of her sons [who commenced employment in the construction industry in January 2014]. 1. The Associate Professor diagnosed "acute post-traumatic stress disorder with delayed onset". He said that around 15% of cases of this disorder have a delayed onset. He added this opinion: It is plausible that she likely psychologically "defended" the effects of traumatic stress until her sons commenced work in construction, which clearly had a salient effect and precipitated this delayed onset of an acute form of PTSD. 1. For reasons already given, I do not accept that the plaintiff experienced regular, repetitive nightmares or intrusive recollections, which were never mentioned to her employer in "late January/early February 2014" and would have been entirely inconsistent with her seeking additional work on 4 February. 2. In oral evidence Dr JA Roberts said: I note that she continued to work until February. The most significant onset of pathology [in post-traumatic stress disorder] is usually at close proximity to the event. This is not described. To similar effect, Dr Lee, in his report of 6 September 2019 states: The general course for post traumatic stress disorder is for improvement over time and not delayed onset. 1. I accept the opinion of Dr JA Roberts in his report of 29 October 2015 that delayed onset of the disorder is medically recognised only in a narrower sense than Ass Prof Robertson appeared to assume when assessing the plaintiff's history. Dr JA Roberts' report includes this passage: It is now considered that the concept of delayed PTSD is not that a person following a traumatic incident was well and then developed a condition but that after the traumatic event the person had symptomatology but such would not fulfil the total criteria for PTSD diagnosis; that at a later time such may occur and fulfil the full criteria [so that] the diagnosis of PTSD can then be made. 1. Relevantly to that approach, the plaintiff has only claimed limited experience of symptoms from January 2014 and for reasons given at [94] above I do not accept that she suffered even those symptoms. Dr JA Roberts identified in his report an additional reason, which I accept, for not relying upon the plaintiff's claims of having suffered nightmares during the month leading up to her attendance upon Dr Lim; namely, that the nightmares experienced by genuine sufferers are not repetitive as she described to Ass Prof Robertson. Dr JA Roberts quoted the following passage from a text concerning clinical assessment of this disorder: Malingerers may claim that their nightmares are repetitive and have occurred without variation over the past several months. However, genuine civilian (non-combat-related) post-traumatic nightmares have been shown to change over time and involve variations on the theme related to the traumatic event. No symptom of avoidance considered by Ass Prof Robertson - 14 April 2014 1. The plaintiff's request for more shifts on 4 February2 014 is not referred to in Ass Prof Robertson's report and the doctor appears to have been unaware that this occurred. I find the Associate Professor's concept that the plaintiff psychologically "defended" the supposed effects of traumatic stress unconvincing. His report does not address the diagnostic criterion for post-traumatic stress disorder concerning avoidant behaviour. He notes that the plaintiff told him she initially "shrugged off the incident" and returned to employment. Associate Professor Robertson does not state how the criterion of avoidance can be reconciled with her insistence on returning to the same site on the next day, her continued work from November to January and her request for additional work on 4 February. No avoidance behaviour from April to September 2014 1. According to her evidentiary statement, the plaintiff returned to work in early March 2014 for three days per week for two weeks. In that period, according to her oral evidence, she was assigned duties in the company's office. She was then off work for the next two weeks and resumed in early April 2014, again working two days per week in the office until 14 April. From then she says that she returned to traffic control duties on job sites, for a reduced number of shifts per week, until 21 September 2014. The plaintiff asserts that throughout the period from March to September 2014 she suffered continuing nightmares and flashbacks and feelings of dread that her sons would be injured at work. She claims that she did not wish to return to her normal duties because "there were too many triggers being on-site, and I just couldn't face that". Nevertheless, she states that she did return to working on sites but that she became anxious about being asked to work on "electrical sites". 2. This evidence about reluctance to return to on-site duties is contradicted by a letter from Dr Lim to the workers compensation rehabilitation consultant on 26 June 2014, written after seeing the plaintiff that day. The letter included the following: She returned to full-time work and duties in April […]. I understand she was keen to return quickly to work rather than the graded plan initially suggested […]. She has found work very difficult with several issues. 1) Her hours have not been consistent with pre-incident hours, and vary from 8-20 hours, while other colleagues have been given double shifts. 2) Her ute is not adequately equipped with the right signs, and she has once been pulled up by police about this. 1. The plaintiff's resumption of her usual pre-accident duties and her request for more hours per week appears to have been from about the end of April 2014. On 8 May 2014 the company that was providing rehabilitation and return-to-work services, identified as "IPAR", issued a report that included the following: [IPAR] issued a suitable [limited] duties report to all parties on 4 April 2014 and scheduled a return to work meeting with [the plaintiff] and her employer to be held at her employer's office on 22 April 2014. During this meeting, [the plaintiff] advised she felt capable of returning to her pre-injury duties status and did not need to attempt a graded plan. [IPAR] advised [the plaintiff] she needed to attend her nominated treating doctor to have this confirmed and issue [a certificate] to reflect this. [IPAR] received [the plaintiff's] pre-injury duties certificate on 1 May 2014 and was advised by [the workers compensation insurer] on 6 May 2014 to close [the plaintiff's] rehabilitation file […]. 1. This evidence refutes any suggestion of a symptom of avoidance of work that might remind the plaintiff of the incident. Emails from Mr Woodward, the operations manager of Direct Traffic, dated 16 September 2014 and 2 October 2014 record that the plaintiff's reasons for leaving her employment from about the end of September did not include inability to perform the work or a desire to avoid reminders of what had occurred on 30 October 2013. On 16 September 2014 she complained to Mr Woodward, in abusive terms, about a job to which he had allocated to her. He said he would call her back and re-allocate. When he rang back the plaintiff's partner spoke to him in a threatening manner and the plaintiff "was in the background swearing and yelling abuse". Late on the afternoon of 2 October 2014 the plaintiff called Mr Woodward sounding distressed and complaining that she "[has not] worked for a while". When Mr Woodward said that he would speak to the directors before giving her further work "she became hysterical" and asked whether she was being sacked. She then hung up. She did not seek work from the company again. Treatment by Drs Ilchef and Nagash - September 2014 to mid-2019 1. On 18 September 2014, shortly before the plaintiff ceased to work for Direct Traffic, Dr Ng of the Eagle Vale Medical Centre referred her to Dr Ilchef. In November 2014 Dr Ilchef reported as follows: [The plaintiff] meets threshold criteria for severe post-traumatic stress disorder and comorbid major depressive disorder arising from the incident itself but also from what she perceives an unsympathetic and blaming response from her employer. 1. With respect, I do not find Dr Ilchef's reports useful in determining whether the plaintiff has suffered the psychiatric injury that she alleges. That is largely because the doctor appears to have accepted unquestioningly the plaintiff's history and her description of symptoms that were current at the time of his consultations with her. He has not set out in his reports any systematic analysis of whether this information can be reconciled to surrounding circumstances, or whether it is internally consistent, or how exactly the diagnostic criteria of post-traumatic stress disorder are satisfied and can be related to the incident in question. 2. Since July 2019 Dr Nagash has diagnosed the plaintiff with post-traumatic stress disorder, depression and anxiety. For reasons similar to those that I have given in relation to Dr Ilchef, the opinions of Dr Nagash do not assist me to resolve the contested issue of whether the plaintiff sustained the psychiatric injury that she alleges. Dr Teoh's opinions 1. Dr Teoh first saw the plaintiff at the request of her solicitors on 4 April 2016. He reported that her presentation was "consistent with a diagnosis of chronic post-traumatic stress disorder". That was based upon the history provided by the plaintiff, commencing with her telling Dr Teoh that she was "10 steps away" from the worker who received severe burns. The plaintiff described interrupted sleep, apparently, as the doctor has recorded her history, on the night of the incident - as follows: She woke up with a distressing nightmare. She said that she had images of the worker screaming, and she could smell something burning. She started to feel quite anxious, and had intrusive memories of the event. She said that she felt unsafe, and she had avoidant behaviour. She started thinking that it could have been her, and she could have died. […] She has not been able to return to work. […] She had tried to go to work between January 2014 and August 2014. She said that she had found it hard to get to work on time, and she had difficulty in the relationship with her employer. 1. All of the above-quoted extracts from the history given by the plaintiff to Dr Teoh are demonstrably incorrect. Dr Teoh has not specified what "avoidant behaviour" he was referring to but presumably it was her not being able to return to work. The doctor may have reached a different diagnosis if he had been told that the plaintiff went back to work the next day, continued full-time through November to January, sought additional shifts on 4 February 2014 and, even after consulting Dr Lim and receiving a certificate of unfitness for four weeks, returned to work in March and rejected a graduated plan for resumption of usual duties. The plaintiff told Dr Teoh that she had "no past history of psychiatric illness". If he had been told that she had suffered bouts of depression from 2006 for which she had been prescribed medication and referred for psychological counselling (see [124] below), he might have looked more carefully into her description of post-incident symptoms and he might have explored the possibility of explanations for her condition in April 2016 other than a reaction to what she experienced on 31 October 2013. 2. For the purposes of his subsequent reports of 2 April 2019, Dr Teoh was provided with and took into account medical records of the plaintiff's diagnosis and treatment for depression and anxiety in January 2009, March 2010, February 2011 and October 2011. He nevertheless concluded that her psychiatric condition "has deteriorated markedly following the incident on 30 October 2013". That may be accepted, but the question is whether the incident was a cause of the deterioration and, in particular, whether the diagnosis of chronic post-traumatic stress disorder is supportable. In his April 2019 reports Dr Teoh adhered to his original conclusion, notwithstanding the additional information. The doctor continued to accept the plaintiff's report of her symptoms, although he was now informed by her that "the nightmares did not happen straight away". He accepted her report of "persistent anxiety symptoms with avoidant behaviour" but did not attempt to reconcile this with the history of her continued work through November 2013 to January 2014 and her pursuit of additional shifts, both in early February 2014 and again from late April 2014. Dr Samuell's assessment – August 2018 1. Dr Samuell saw the plaintiff on 13 August 2018 at the request of the second defendant. His report of 20 August 2018 contains the following: At the time that I assessed [plaintiff], she made no claim to re-experiencing phenomena and did not describe symptoms of a post-traumatic stress disorder. 1. Dr Samuell recorded the following doubts regarding whether the plaintiff had manifested genuine symptoms of post-traumatic stress disorder at any earlier time: [Dr JA Roberts] expressed concern about the authenticity of [the plaintiff's] symptoms. In particular, he notes the delayed onset of [the plaintiff's] difficulties as she was able to work without difficulty for a considerable period following the subject incident. He also expressed suspicion, given the way in which she described re-experiencing phenomena at that time. He made recommendations for symptom validity testing. […] [Dr Roldan's report] provides strong evidence as to the unreliable self-report of the plaintiff. Dr Roldan's report was consistent with the concerns raised by Dr Roberts. The symptom validity scores from the Minnesota Multiphasic Personality Inventory [administered by Dr Roldan] yielded the test to be invalid and uninterpretable. Her responses were inconsistent with genuine severe psychological difficulty. Given that examiners have been reliant on [the plaintiff's] self-report and that there is strong evidence of inconsistency and exaggeration, it is not possible to make a reliable diagnosis on her self-report alone. I share the concerns of Dr Roberts. 1. With respect to Dr Teoh's report of 10 April 2016, in which a diagnosis of post-traumatic stress disorder was propounded, Dr Samuell made this observation: In Dr Teoh's mental state examination, he reports few of his own direct observations of the plaintiff. He makes no effort to consider the delayed onset of [the plaintiff's] disorder. 1. Dr Samuell attributed the plaintiff's presentation in August 2018 to disorders unrelated to the incident of October 2013, as follows (emphasis added): Prior to the subject accident, [the plaintiff] was observed by co-workers to be a difficult individual. She received many complaints concerning her conduct. Her employer had considered terminating, however, one client often sought her assistance. Consistent with my examination experience, she had been observed as being a hostile individual in the workplace. Together with the histories obtained by others concerning problematic interpersonal relationships, together with her conduct at interview, it seems almost certain that [the plaintiff] suffers from a personality disorder that is within the cluster B. Personality disorders are typically long-term conditions that are not caused by external events in adulthood. Therefore, her personality disorder should not be considered to be a workplace injury. [The plaintiff] is consuming alcohol and cannabis to the extent that it should be considered a disorder. The appropriate diagnosis to make is that of a polysubstance use disorder. There is evidence from the supplied material that she has had a long history of substance misuse. 1. The extent of the plaintiff's consumption of alcohol and cannabis in mid-2018, as ascertained by Dr Samuell, is referred to at [130] below. The "long history of substance misuse" to which the doctor referred included Dr JA Roberts' note that she admitted having used marijuana from 1991 to 2000 (see [127] below and Dr Ilchef's reports of his endeavours to have her admitted for detoxification in 2015 and 2016: see [128] below. Dr Lee's assessment - July 2019 1. Dr Lee assessed the plaintiff on 30 July 2019, 11 months after Dr Samuell had seen her. With respect to symptoms of intrusive thoughts and re-experiencing phenomena, Dr Lee recorded the following aspects of the history provided by the plaintiff: [She said] my nightmares would've begun in February [2014]. She said that she did not begin experiencing nightmares until February the next year when her sons began working because other people's negligence could have caused them to be injured, as could have happened to her if her instinct had not made her walk away after the first incident. She said the nightmares "started coming back three years ago", although she then said they had "not entirely gone away" from after the first compensable incident. 1. With respect to the absence of any manifestation of avoidance behaviour, Dr Lee made the following observations: She did not avoid returning to work as one would expect for a diagnosis of PTSD. On 4 February 2014, she requested more work hours because her boyfriend had undergone surgery and could not work for six to eight weeks. […] On 13 February 2014, she discussed her ability to work due to her son being in hospital but said she wanted to work to keep her mind off things if possible. Comment: This is inconsistent with the avoidance of PTSD. 1. Dr Lee expressed the opinion that the plaintiff had not suffered and was not, in mid-2019, suffering post-traumatic stress disorder. He attributed her mental condition at the time of his examination to causes independent of the October 2013 incident, as follows: In my opinion, noting that she probably had pre-existing dysfunctional personality traits and/or a tendency to abuse substances and noting that there was no indication for several months after the incident of PTSD complaints, it is 100% likely that these conditions [ie exhibited since the incident] would have occurred irrespective of her witnessing the incident. I consider that [the psychiatric treatment she has received since the incident] has not been reasonable, necessary and [causally] related to the incident. It would have been entirely incurred irrespective. There is strong evidence of functional overlay and likely conscious exaggeration or embellishment of symptoms given the marked evidence of overreporting and the inconsistent histories with regard to her premorbid substance abuse noted by Dr Roldan. Conclave report – 25 February 2020 1. Following the conclave, Drs Samuell and Lee remain of the view that the plaintiff does not suffer from post-traumatic stress disorder, for substantially the reasons that I have already extracted from their reports, above. Dr Teoh's position is stated in the conclave report as follows: Dr Teoh maintains that the plaintiff has a diagnosis of chronic post-traumatic stress disorder based on history and presentation. However, Dr Teoh accepts that there is some degree of unreliability in the plaintiff's history. 1. I accept the opinions of Drs Samuell and Lee. Dr Teoh's acknowledgement of "some degree of unreliability" involves considerable understatement. The plaintiff's history is unreliable to the point that the Court cannot accept, on the balance of probabilities, her assertions of having suffered intrusive thoughts or nightmares, at any time. Further, her evidence taken at its highest does not establish any form of avoidant behaviour. That critical criterion of the disorder is not made out. I also do not accept the plaintiff's evidence of post-incident development of negative thoughts or perceptions, such as self blame. This is another essential criterion that is not established. Prior history of depression 1. Having regard to the firmly based conclusions of Drs Samuell and Lee I am not satisfied that the depressive symptoms exhibited by the plaintiff from about mid-February 2014 have been causally related to the event of October 2013 or are indicative of post-traumatic stress disorder. It is amply shown that, from several years before that date, the plaintiff had a disposition towards becoming clinically depressed, to the extent that antidepressant medication was indicated. According to her own report to that of dates at the time, the plaintiff's pre-accident bouts of depression were brought on as a result of conflict and stress in her interpersonal relationships, with family members, with others who interacted with family members, with her employer and with her co-workers. I have taken into account the following pre-incident history of the plaintiff's treatment for depression: 1. On 3 August 2006 Dr Tran, a general practitioner at Rosemeadow Medical Centre, diagnosed the plaintiff with depression and referred her for psychological counselling. The plaintiff said that she had a problem with her ex-husband and that her daughter had run away from home. She had a depressed mood and low self-esteem. Antidepressant medication was prescribed. The prescription continued until 16 April 2007, although the plaintiff asserts that she did not take the medication throughout this period. 2. On 21 January 2009 Dr Tran again diagnosed depression and referred the plaintiff to a psychologist. The plaintiff attributed her symptoms to a problem with her ex-husband, an illness affecting her mother and conflict with her daughter. The doctor prescribed a different antidepressant. 3. On 18 March 2010 the plaintiff complained to Dr Tran that she was "very upset" as a result of her twin sons exhibiting behavioural problems at school, resulting in insomnia and poor memory and concentration. Again she was referred for counselling and her antidepressant medication was changed. A month later she reported improved mood following use of the new medication. 4. On 2 February 2011 the plaintiff saw Dr Tor at the same practice, exhibiting tearfulness, depression and anxiety. She complained of conflict at work. She had commenced working for Direct Traffic by this date. A mental health care plan was reviewed and a further prescription of antidepressant medication was provided. The plaintiff was referred for six sessions of psychological counselling. She was still suffering depression at the time of a further consultation on 27 April 2011. The prescription was then renewed. 5. On 12 October 2011 the plaintiff presented to Dr Tor exhibiting symptoms of anxiety and depression, complaining that she was unhappy at work and stating that she would look for a new job after Christmas. The doctor doubled her dose of antidepressant medication. One month later Dr Tor saw her again and was advised she had left her employment. The plaintiff was upset and tearful, "felt angry one minute and tearful the next, not sleeping well". An additional prescription for sleeping tablets was issued. 1. There is clear evidence that conflicts and stresses of this nature, with the addition of financial strain and insecurity regarding accommodation, affected the plaintiff during early 2014. For the purpose of determining the plaintiff's claim it is not necessary that I should affirmatively find a causal relationship between those stresses and the plaintiff's depressed state in and after 2014. My finding that the plaintiff has not proved on the balance of probabilities that her symptoms were caused by the October 2013 incident or that they support a diagnosis of post-traumatic stress disorder is sufficient to resolve the case. However, the evidence comfortably satisfies me that the conflicts and stresses to which I have referred, operating in conjunction with the plaintiff's admittedly very difficult personality, persisted through 2014 and were the cause of her ceasing to work for Direct Traffic, in distress, anger and hostility, at the end of September that year. Therefore depression and substance abuse set in, without causal connection to the October 2013 incident. Substance abuse since 2014 1. I am satisfied that the plaintiff's admitted substance abuse from late 2014 is attributable to the same combination of causes as referred to in the preceding paragraph, exacerbated by her loss of employment in acrimonious circumstances of her own making. The plaintiff's daughter was 23 in early 2014 and had been living separately from her mother, with a partner, for the preceding five years. She said that the plaintiff ceased to care for herself and for her home quite suddenly after September 2014. Her daughter had not seen the plaintiff drink alcohol before 2014 but noticed that she commenced to drink from about November or December of that year. In cross examination the plaintiff's daughter also said that her mother commenced to use cannabis in either December 2014 or January 2015. She had not been aware of the plaintiff using the drug before that time. She said that the plaintiff's use of both alcohol and cannabis continued until June 2019 when the plaintiff stopped using both of these intoxicants. 2. In oral evidence the plaintiff denied that she told Dr JA Roberts that she had used marijuana from 1991 to 2000: I find the doctor's record of this in his report of 29 October 2015 more reliable than the plaintiff's testimony. I am satisfied that what the plaintiff told the doctor about her past drug use was true. However this past drug use appears to me to have little significance. 3. It is apparent from Dr Ilchef's reports that he found the plaintiff to be suffering from alcohol and cannabis abuse from 2015 onwards. On 7 September 2015 he sought to have her admitted to a clinic for purposes that included withdrawal from misuse of these substances. The doctor made same recommendation 15 months later, on 9 December 2016. 4. At the date of Dr Teoh's first examination of the plaintiff, in April 2016, he was informed that she was "drinking six beers a night, and that she was taking cannabis regularly". He did not consider that this had contributed significantly to her mental condition at that time. I do not accept that the plaintiff disclosed the true extend of her drinking, which I infer was greater than she said. 5. In May 2018 the plaintiff told Dr Roldan that from about October 2015 she had commenced drinking "in order to help her sleep and cope with nightmares". She told Dr Roldan that over the two preceding years, being mid-2016 to mid-2018, she had been drinking on average three bottles of wine each night. She also said that she had commenced smoking cannabis from about May 2014 and that as at May 2018 she was using approximately 1 ounce per week, smoking "several cones of cannabis through the day and night". In August 2018 the plaintiff could not tell Dr Samuell how much she drank each day but did say that she "passes out half the time". She was evasive about the quantity. She also gave him an estimate of her cannabis consumption, being 1 ounce per week. 6. At the plaintiff's first consultation with Dr Nagash on 19 July 2019 she provided the following information regarding her substance abuse: She has been drinking heavily to help cope with her low mood. In the last three weeks she reported drinking up to 2 litres of wine per day. She has also been smoking cannabis up to 1 gram per day. A month later the doctor reported that the plaintiff claimed to have ceased drinking "at night". It is not clear from these reports what Dr Nagash was told regarding whether the plaintiff's overall consumption of alcohol reduced or, if so, when and to what level. 1. The plaintiff's substance abuse from late 2014 until mid-2019 may have contributed to or exacerbated her depressed state in that period and may have disabled her from seeking or obtaining employment. However I am not satisfied that her misuse of substances is either an indicator of or a result of any psychiatric injury caused by the incident on 30 October 2013. Conclusion regarding alleged psychiatric injury 1. The plaintiff has not established that she suffered psychiatric injury or damage as a consequence of the incident at Eastern Creek on 30 October 2013 and her action fails as against both defendants on that ground, independent of any other. Damages 1. Usually the Court at first instance would assess damages, notwithstanding that liability and/or causation have not been established, in order to allow for the contingency of a successful appeal. Here, if the plaintiff had established causation of the psychiatric injury that she alleges, the assessment of damages would be essentially concerned with determining such matters as: the severity of her nightmares and/or intrusive waking memories; the degree to which those symptoms have compromised and will in the future compromise her sleep, her ability to concentrate and to function when awake and her enjoyment of life; the severity of her avoidance behaviour, particularly in relation to work locations, and the degree to which such avoidance may have reduced her earning capacity; the extent to which any of the symptoms of post-traumatic stress disorder have caused the plaintiff to become depressed and/or to use intoxicants, with further loss of quality of life and of earning capacity. 2. As I have found that symptoms of post-traumatic stress disorder have simply not been exhibited by the plaintiff, I am not able to make a quantitative assessment of them. To proceed to derive a quantum of damages on the assumption that the plaintiff suffers from post-traumatic stress disorder would not involve assessment, evaluation or judgment on my part but would require that I assume, contrary to my own findings, that the plaintiff has debilitating and incapacitating symptoms. In these circumstances the nature of the case precludes the making of a contingent quantum assessment. Orders 1. As the plaintiff has not succeeded against either defendant, there is no occasion to grant relief upon either of the reciprocal cross-claims between the two defendants, in which they claim contribution as between tortfeasors liable in respect of the same damage. Each of those cross-claims will therefore be dismissed. It was reasonable for each defendant to bring such a cross-claim and the costs of doing so should be treated as defendants' costs in the proceedings brought by the plaintiff. 2. For these reasons the following orders will be entered: 1. Verdict and judgment for the defendants. 2. Both cross-claims are dismissed. 3. The plaintiff is to pay the defendants' costs. 4. The costs of each defendant of the cross-claim brought by it and of defending the cross-claim brought against it by the other defendant are to be assessed against the plaintiff as costs of defending the plaintiff's claim. 5. Any application to vary the costs orders or for costs to be assessed other than on a party/party basis is to be filed within 14 days of the publication of the reasons for judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2021