Karzi v Toll Pty Ltd [2024] NSWCA 120

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Karzi v Toll Pty Ltd [2024] NSWCA 120 Hearing dates: 3 May 2024 Decision date: 22 May 2024 Before: Leeming JA at [1]; Adamson JA at [9]; Basten AJA at [162] Decision: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs of the appeal. Catchwords: NEGLIGENCE — duty of care — foreseeability — whether primary judge erred in finding risk of psychiatric harm to employee was not reasonably foreseeable — where employee was verbally harassed by co-workers — where employee made complaint to employer and employer took reasonable precautions to address risk of psychiatric harm — where employee did not indicate to employer that psychiatric harm was being suffered NEGLIGENCE — causation — where employee suffered "transient" psychiatric injury — whether certificate of whole person impairment issued by the Workers Compensation Commission was evidence of the permanence of the psychiatric injury for the purpose of ascertaining causation APPEALS — from finding of fact — improper admission of evidence — whether primary judge erred in admitting evidence of witness who was not disclosed in respondent's pre-filing statement — where disclosure was required by s 315 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appellant's pre-filing statement did not comply with s 315 CIVIL PROCEDURE — pleadings — whether primary judge erred in failing to address appellant's case on vicarious liability — where vicarious liability was not pleaded — where vicarious liability was raised in cross-examination and oral submissions at first instance — purpose and function of pleadings Legislation Cited: Civil Liability Act 2002 (NSW), s 32 Civil Procedure Act 2005 (NSW), Pt 6 Uniform Civil Procedure Rules 2005 (NSW), r 51.36 Workers Compensation Act 1987 (NSW), ss 150, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 315, 318, 326 Cases Cited: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Bersee v State of Victoria (2022) 70 VR 260; [2022] VSCA 231 CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Gower v State of New South Wales [2018] NSWCA 132 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Koehler v Cerebos (Australia) Pty Limited (2005) 222 CLR 44; [2005] HCA 15 Kozarov v State of Victoria (2022) 273 CLR 115; [2022] HCA 12 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 Nationwide News v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 Stevens v DP World Melbourne Ltd [2022] VSCA 285 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Watson v Foxman (1995) 49 NSWLR 315 Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 Category: Principal judgment Parties: Mohd Younas Karzi (Appellant) Toll Pty Ltd (Respondent) Representation: Counsel: G J Parker SC / J de Greenlaw (Appellant) M McCulloch SC / F Doak (Respondent)