STATE RAIL AUTHORITY OF NSW v HOWELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and COLE JJA and COHEN AJA 12 December 1996, 19 December 1996 [1996] NSWCA 495 NEGLIGENCE — liability of employers — failure of employer to provide trauma counselling and assistance to employee who inspected scene of suicide — employee developed "post traumatic stress disorder'"' — assessment of damages. On 4 December 1992, the respondent, who was employed by the appellant as assistant Station Master at Albury Station, was called to inspect the scene of an accident. A woman had suicided by lying on the railway line in front of an approaching train and her body was horribly dismembered. In the months that followed, the respondent developed "post-traumatic stress disorder" and in May 1993 was hospitalised. He brought proceedings against the appellant contending that it had been negligent, as a consequence of which he developed his disorder. The proceedings were heard by Abadee J who delivered judgment for the respondent, finding that the appellant was negligent in failing to provide post-trauma counselling or assistance. Two other heads of negligence were rejected. Judgment was entered for the respondent in the sum of $405,993.07. The appellant has challenged the findings on liability and damages. The respondent has filed a notice of contention in which he contends that his Honour was in error in finding against him on the other two heads of negligence and a cross-appeal in which he asserts that the damages were inadequate. HELD: (1) Liability: (a) The evidence provides more than a sufficient foundation for his Honour's acceptance of the proposition that the psychologist contracted by the appellant was negligent in failing to provide post-trauma counselling or assistance and that the appellant was therefore negligent. (b) Although it was foreseeable that if an employee was exposed to the sight of a dismembered body they might suffer from post-traumatic stress disorder, in the absence of evidence demonstrating the nature of an instruction which could have been given to employees to lessen that risk, what was done in this instance in the way of written instructions does not fail the test of reasonableness. (c) His Honour was not mistaken in accepting the evidence that while pre-trauma training can ameliorate symptoms, its usefulness is questionable where there was a potential time lag between training and incident. (2) Damages: There is no doubt that the evidence concerning the effect of negligent post-trauma counselling and debriefing enabled his Honour to conclude that the respondent's disorder was much more severe than it would have been if reasonably careful treatment had been provided. However, it was not open to his Honour to conclude that that negligence caused the condition of which the respondent suffered and to assess damages on that basis. ORDERS: (1) Appeal allowed; (2) Cross-appeal dismissed with costs; (3) Judgment of Abadee set aside except as to costs; (4) A new trial on the issue of damages ordered; (5) The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act. 2 UNREPORTED JUDGMENTS Clarke JA On the 4th of December 1992, Geoffrey Clarence Howell (the respondent) was employed by the State Rail Authority of New South Wales (the appellant) as the assistant Station Master at Albury Station. At about 8.30pm on that night, he received a message that a person had been run over by the XPT train approaching Albury from the north. It later transpired that a woman had suicided by a lying on the line in front of the approaching train. Shortly after receiving the message the respondent went to the scene of the incident. When he arrived the police, emergency services and the ambulance personnel were all there. The respondent was the senior railway officer at the scene, which he inspected. The woman's body had been horribly dismembered. During his time there the respondent saw what he described as bits and pieces of body, including a severed hand and a severed foot. After some time at the scene he was relieved, feeling, as he said, quite sick. In the weeks and months that followed, the respondent developed a condition which is relatively well-known and which is described as "post-traumatic stress disorder". In May 1993 he was hospitalised, his employment was terminated and despite treatment his condition continued to go downhill. By the time of trial, he was in a very bad way and was considered by the doctors to be totally unemployable. He brought proceedings against the appellant contending that it had been negligent, as a consequence of which he developed his disorder. In his Statement of Claim he particularised his complaint in a number of ways, but at the trial he relied on three heads of negligence. They were; 1. Negligence by the employer in sending him to the scene and not laying down a procedure whereby he was kept apart from the deceased person's body parts; 2. Negligence in failing to provide pre-trauma training or counselling; and 3. Negligence in failing to provide post-trauma counselling or assistance. The trial was conducted by Abadee J who, after a lengthy hearing and because the respondent was considered to be suicidal, delivered an ex tempore judgment in which he found for the respondent on the third head of negligence. His Honour assessed the damages at $514,934.07 and, after making appropriate deductions in respect of workers' compensation payments, entered judgment for the respondent in the sum of $405,993.07. The appellant has challenged the findings on liability and damages and the respondent has himself filed a notice of contention in which he contends that his Honour was in error in finding against him on the other two heads of negligence and a cross-appeal in which he asserts that the damages were inadequate. It is convenient to deal initially with the various complaints about the findings on the liability issue, taking the appellant's challenges first. LIABILITY The respondent signed off duty at about | am. He gave evidence that at about 3.30 am he arrived home. He then received a phone call from a psychologist, Mr Langmead, who had been instructed by the appellant to establish contact with the respondent for the purposes of providing him with debriefing and counselling following the traumatic experience he had just undergone. The retaining of Langmead was consistent with the appellant's trauma debriefing policy which was contained in Exhibit D which was tendered before Abadee J. In accordance with that policy it was mandatory for trauma debriefing to be supplied to members of staff who became involved in retrieving human remains and it was recommended that such treatment be given to members of staff involved in incidents, including those in which serious injury was involved. URJ STATE RAIL AUTHORITY OF NSW v HOWELL (Clarke JA) 3 There was some discussion at the hearing as to whether the provision of trauma debriefing was mandatory or recommended in the circumstances of the present case but, in so far as was accepted by the appellant that debriefing was recommended, it does not seem to me that there is any significance in the distinction between the two. In Schedule D of the policy document it is said: "Tf traumatic stress is not dealt with effectively, it can lead to employees suffering more intense forms of stress which may lower their level of work performance and reduce their enjoyment of life. It is therefore important that assistance is available to the employees as soon as possible after traumatic incidents, preferably within 24 hours. Following most traumatic incidents, assistance is provided on a voluntary basis. However, it is expected that employees who have been directly involved in fatal accidents or armed hold-ups during the course of work will undergo at least one debriefing session." Langmead said that he was not aware of the appellant's trauma debriefing policy but he conceded that it was necessary to offer support to a person in the position of the respondent as soon as possible and definitely within 24 to 48 hours. He said that he offered the support in the form of a telephone conversation followed up by two or three telephone conversations on the following day. He said that he made an appointment for the respondent to see him on the Monday morning but that the respondent did not keep that appointment. He said that he made another appointment for the Wednesday morning on which occasion the respondent again did not turn up. Thereafter he made no further contact with the respondent. Despite this fact he said in a letter of 18 December 1992 to the appellant that he would monitor the respondent's recovery, at least over the phone, in the following weeks. This he did not do. His Honour said that he was satisfied that the respondent's post-traumatic stress disorder was materially contributed to by the omission on the part of Langmead properly to debrief and counsel the plaintiff after the trauma. His Honour was satisfied that by 12.30pm on Saturday 5 December 1992 Langmead was in a position when he knew, or ought to have known, that the respondent was showing signs of the disorder. His Honour went on to express the opinion that by that time the respondent had told Langmead enough to enable the latter to conclude that an appointment was required as a matter of urgency and that such appointment should have been made then and there for that day. The evidence to which his Honour was referring was given by Langmead and it is sufficient for my purposes to note two questions and answers: "HIS HONOUR: Q. I want to come to the situation 12.30 on the Sth. You knew according to what he told you, to use your original word, that he had flashbacks, you knew that he had been slightly agitated, you knew that he had had a couple of drinks and it hadn't helped and that you knew he was saddened or upset about what had happened to a friend, is that right, all of those things you knew by 12.30? A. Uh-huh. Q. What did that tell you about the man as at 12.30, please? Do you want to object to that question? A. That told me we definitely had to have an appointment and that is exactly what I did. Q. 'Definitely had to have an appointment'? A. Uh-huh." That evidence coupled with later evidence when Langmead agreed that the earlier debriefing and counselling was proffered the better, required Langmead, in his Honour's opinion, to provide face to face counselling on the Saturday itself. Langmead gave an explanation for not having provided that. His Honour did not 4 UNREPORTED JUDGMENTS accept this explanation. Indeed his Honour was singularly unimpressed with Langmead's demeanour, veracity and credibility in the witness box. A careful examination of his cross-examination, which reveals that at one stage he misled the appellant in a significant way and that he avoided answering questions, or sought to avoid answering questions, on a number of occasions, provides a ready explanation for his Honour's jaundiced view of the witness. It is submitted, however, by the appellant that the evidence did not establish that Langmead's conduct was less than reasonable, nor did it establish that there was a causal nexus between any unreasonableness on the part of Langmead and the onset or development of the disorder. I will leave the issue of causation for the moment in order to concentrate on the first issue. The respondent's case on this issue was provided in substance by Dr Sime, who had impressive qualifications with regard to post-traumatic stress disorder, and it was his evidence which led to his Honour's conclusion on the issue of negligence. In his report Dr Sime said: "He (the respondent) would certainly in my experience have been the type of case that would require not only immediate debriefing, which he did not have, but would also have needed close ongoing treatment follow-up. This is not to say of course that Post Traumatic Stress Disorder could necessarily have been prevented in this case, given the severity of his illness, but it should have been possible to reduce the effects of the trauma appreciably and perhaps prevented the serious deterioration in his condition." That evidence was supplemented by the oral evidence of Dr Sime during which he said: "Q. What would you regard as appropriate to a person who had undergone such a trauma? A. Well, from our background of experience, we discovered you really literally have to see the individual as close to the event as humanly possible. Q. When you say 'see', you mean face to face? A. Face to face. This is the service we set up, yes. Q. It is suggested, the plaintiff says, he has no memory of it, but it is put to him that in fact over the phone appointments were made by the psychologist to see him on 7 and 9 December - the accident happened on the 4th, the night of the 4th and the Sth, the telephone contact I am telling you about having occurred in the early morning, 7 or 7.30am of Saturday the Sth. It is suggested to him that appointments were set up for the 7th and the 9th of December, that is the Monday and the Wednesday, neither of which he attended. Is there any significance about his failure to attend, assuming they were made, is there any significance about his failure to attend? A. I can only say what our experience was in situations of that kind and how we handled it. We discovered with the bank staff that very often they didn't keep appointments, not very of[en but sometimes they didn't keep appointments and we would see this as possibly significant. And we would actually go and visit them, in the homes actually, if they didn't keep appointments. Q Why would you see it as significant? A. Well, we would be concerned as to avoidance factors involved in it because with these situations in the banks, for example, you get avoidance reactions, avoiding going into the bank, avoiding URJ STATE RAIL AUTHORITY OF NSW v HOWELL (Clarke JA) 5 linkage with the banks, and somebody on the phone ringing you up ostensibly as part of the bank system could be part of that avoidance in terms of the post traumatic stress disorder. Q. Is the avoidance part of the problem? A. We would assume the possibility of avoidance and we would follow them up and make sure that they weren't in fact breaking down by visiting in his home." This evidence provides more than a sufficient foundation in my view for his Honour's acceptance of the proposition that Langmead was negligent. would interpose at this stage the observation that his Honour went on to hold that if Langmead was negligent the appellant was responsible in law for that negligence, a finding which has not been challenged on the appeal. The appellant in its written submissions stated that there had been no proven breach of the trauma debriefing policy of the appellant, that Dr Sime did not explain how immediate face to face debriefing is more effective than Langmead's telephone conversations, that Dr Sime's observations were confined to debriefing and that evidence given by Langmead that treatment should not commence until after 48 hours was not contradicted and, in essence, that the respondent's case on this issue was so vague as to be insupportable. In my opinion these submissions relate only to detail and do not go to the heart of the matter. In Dr Sime's opinion the respondent needed immediate face to face debriefing. Langmead conceded that by 12.30pm on Saturday Sth December he was aware of signs which indicated the need for urgent counselling and debriefing (indeed that is why he made the appointment for Monday) but thereafter he did nothing more than make two appointments which were not kept. Having regard to the avoidance factor it seems to me that non-attendance at appointments was the very kind of thing likely to happen and that it was simply not good enough to do nothing. On my reading of the evidence of Langmead he took the view that he was a private consultant who worked in his office and that provided he offered appointments at his office he had performed his duty. Despite this attitude he informed the appellant in a letter that he had actually had face to face contact with the respondent. This mix-statement was retracted when he was confronted with its falsity but his explanations for not having provided that type of counselling and debriefing were, in my opinion, correctly rejected by his Honour. I am not satisfied there is any substance in this submission. The appellant's point on causation was a simple one. There was no evidence which would enable the court to conclude that, even if Langmead had endeavoured to see the respondent in his home or at work on the Monday the respondent would actually have accepted counselling and debriefing from him. In the appellant's submission unless evidence was led which proved, or from which the inference could be drawn, that the respondent would have seen Langmead there was no established causal connection between any unreasonable conduct on the latter's part and the disorder suffered by the respondent. According to the appellant the only direct evidence on this issue, and this submission appears to be correct, was that given by the respondent to the effect that if he had been directed to see Langmead he would have done so. Having regard to the fact that the onset of the syndrome is often associated with avoidance factors it seems to me, in the circumstances, that that evidence is sufficient to establish the missing link in the causal chain. I say that because, in my opinion, Langmead should have recognised the possibility that the appointment was not kept because of the avoidance factor and taken steps to see the respondent, who was at work, and if necessary to secure an appropriate 6 UNREPORTED JUDGMENTS direction from the respondent's superiors. If that direction had not been forthcoming there would, in my opinion, have been clear evidence of negligence on the part of those superiors.! would not, however, infer that a direction would not have been given for all the actions of the appellant itself indicated that it was anxious that all possible assistance be given to the respondent and the only fault in this instance was that of its consultant, Langmead. Even if this not be correct there is, in my opinion, no reason to draw the inference that he would not have accepted counselling and debriefing on a face to face basis from Langmead from the failure of the respondent to attend the two appointments (or later failures to attend appointments with other doctors). In those circumstances the observations of Viscount Simonds in McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295, at 302, are in point: "Tt may, however, be said that, where the employer is in breach of his duty, there is in that fact some prima facie evidence of a causal connection between the breach and the subsequent damage." I would conclude therefore that, in the absence of evidence that the respondent would not have accepted counselling on the Monday, the appellant's submission should be rejected. (See also The Liability of Employers, Glass, McHugh & Douglas, (2nd Ed) p39.) Before leaving this issue I should make the observation that another issue arises on the question of causation which I will deal with when I come to damages. The respondent has contended that his Honour was wrong to reject his claim that the employer should have laid down a procedure that would have enabled him to go to the scene, protect the railway and yet be kept clear of the body parts and the upsetting visions along the railway line. In his written submissions the argument is put forward that, where the locus could have been secured without the necessity of the respondent or anyone other than trained personnel, such as ambulance and police, attending the scene it was negligent to require untrained and unprepared staff to involve themselves in horrific scenes such as those witnessed by the respondent. The same argument was developed orally during the hearing although I did not apprehend that the respondent's counsel, Mr Toomey QC, contended that the appellant was negligent to send someone to the scene itself. As I understood the argument it really had two limbs. The first was that there should be a standing procedure which enabled railway personnel to attend at the scene of an accident in circumstances which protected them from the disturbing sights which might be there while at the same time allowing them to carry out duties in the protection of the appellant's interests. The second limb was that in the particular circumstances of this case there was negligence in allowing the respondent to move along the line where the body parts were strewn. His Honour rejected that submission having regard to: "\.. the plaintiff's background and his employment position... the magnitude of the risk and to the competing obligations that were imposed upon the plaintiff, including the probability of the occurrence of the risk.... the inconvenience of taking alleviating action... to other constructing responsibilities which the defendant had including, inter alia, doing things at the scene of the accident as reflected in the... emergency instructions." The emergency instructions required that an employee of the appellant be placed in charge of the scene of the incident and that this employee must supervise the transfer of any injured person or the removal of the body and, if necessary, must protect the site. Later it instructed that if any person is fatally URJ STATE RAIL AUTHORITY OF NSW v HOWELL (Clarke JA) 7 injured the train must not resume its journey until authorised by the investigating police officer and the employee in charge at the scene. There can be no doubt that in the operation of a railway system there will from time to time be fatalities. It is common knowledge that persons commit suicide by jumping in front of trains and there are, on occasion, accidents at level crossings. The appellant is no doubt obliged, when such an incident has occurred, to take steps to investigate the incident and to protect its interests and its property. Such action would, as it seems to me, require that the appellant send personnel to the scene of the accident. In some incidents it is conceivable that those personnel could carry out their functions without seeing dismembered bodies, in others they may not be able to do that. Although I would accept that it was foreseeable that if an employee was exposed to the sight of a dismembered body that employee might suffer from Post Traumatic Stress Disorder, in the absence of evidence demonstrating the nature of a general instruction which could have been given to employees throughout the State to lessen the risk to employees attending the scene of a fatal accident of suffering from that disorder I am unable to say that what was done in this instance in the way of written instructions has been demonstrated to fail the test of reasonableness. There was no examination in the evidence of the competing policy considerations and the practical obligations upon a railway authority when incidents occurred on its property. Nor was there examination of all the factors which needed to be considered by the railway authority in an emergency. While it may be true to say that the appellant would be better placed than the respondent to provide that type of evidence that does not answer the proposition that it is for a plaintiff to prove his or her case and, in my view, the absence of evidence of that nature leaves the court in a position where it is unable to conclude that there has been any want of care on the part of the railway authority. The other way the case was put was that in the particular circumstances of this case the appellant was negligent in not in some way protecting the respondent from the foreseeable risk to which I have adverted. Notification of the occurrence was brought to the attention of the respondent who was the senior person on duty at Albury Railway Station. In accordance with his obligations he went to the scene and he did, I infer, whatever he thought was necessary with compliance of his duties. In these circumstances I am unable to discern negligence on the part of any of his superiors who would, of course, have been quite unaware of the happening at the critical time. What the respondent did resulted from his own exercise of discretion. The very particularity of the circumstances necessarily means that the respondent was the person in the best position to evaluate what should be done to protect the interests and property of the appellant and to ensure that the train recommenced its journey as soon as possible. I am unable to detect error on his Honour's part. The third way the respondent put his case at first instance was that pre-trauma training should have been provided. Dr Sime said little about this. The respondent's case was put at its highest by Dr Bryant. He said that there was increasing amount of literature in support of the proposition that stress reactions can be mitigated by pre-trauma education about post-traumatic stress symptoms and the need to seek help for these symptoms. Dr Bryant went on to say that if the respondent had been more appropriately prepared it is likely he would have sought treatment at an earlier point. The evidence was quite general and there is no particularity as to the nature of the pre-trauma counselling except insofar as 8 UNREPORTED JUDGMENTS it should advise as to the nature of post-traumatic stress symptoms and the need to seek help for these symptoms. Of course, if avoidance factors emerged it is difficult to know what effect counselling would have on the need to seek help. But leaving that aside, there was no detailed evidence as to the nature of the counselling which should be given or, bearing in mind the infrequent incidence of events of the nature under discussion, the need for refresher courses. In any event his Honour had evidence from a consultant psychologist, Ms Morrow, who, while agreeing that pre-trauma training can ameliorate symptoms, questioned its usefulness in circumstances where there was a potential time lag between training and incident. His Honour rejected Dr Bryant's evidence preferring Ms Morrow s and I would not conclude that he was mistaken in that course. I should add that neither pre-trauma training nor post-trauma counselling and debriefing would, on the evidence, prevent the onset of the condition. In either case the effects of the disorder might be lessened but the disorder would not be avoided. In the light of the finding of liability in relation to post-trauma counselling it does not seem to me that a finding adverse to the appellant on the issue of pre-trauma counselling would have advanced the respondent's cause. That is not to say that the absence of pre-trauma counselling may not be relevant insofar as a finding of negligence in the provision of post-trauma counselling may have more significant consequences if the person involved had no counselling at all prior to the trauma. I would, accordingly, reject the two grounds of the Notice of Contention. DAMAGES The appellant submits that his Honour erred in that, having found negligence in the provision of post-trauma counselling, he assessed damages as though that negligence had caused the disorder itself. There is no doubt in my mind that the evidence concerning the effect of negligent post-trauma counselling and de-briefing enabled his Honour to conclude that the respondent's disorder was much more severe than it would have been if reasonably careful treatment had been provided. On the other hand it was not open, in my opinion, to his Honour to conclude that that negligence caused the condition of which the respondent suffered. I have already quoted a passage from the evidence of Dr Sime which, I think, makes that clear. At another stage in his evidence Dr Sime said: "T would have regarded this particular case as so severe that it could well have gone on despite the treatment. I would say I think though that with the type of treatment I am talking about we could have modified it, and I am fairly sure about that. The work cases are very good ones which we tackle and there was good recovery." The limited effect of the negligent post-trauma counselling was so well established by the evidence that Mr Toomey did not attempt to suggest that it was open to his Honour to assess the damages upon the basis that the treatment caused, or materially contributed, to the onset of the condition. Rather he sought to meet the difficulty by urging the other heads of negligence upon the court. The greatest difficulty I have had with this submission is in determining whether in fact his Honour did assess damages for the increased effect of the condition resulting from the appellant's negligence or whether he assessed damages upon the basis that the negligence had materially contributed to the onset and development of the condition itself. In the end I have concluded from the manner of assessment that his Honour adopted the latter approach. I have done so because his Honour appears to have awarded damages for non economic URJ STATE RAIL AUTHORITY OF NSW v HOWELL (Cohen AJA) 9 loss and the impairment of future earning capacity upon the basis that v the appellant was responsible for the respondent's condition. That this is so becomes more clear when one finds an absence of any discussion of the exacerbation issue in his Honour's judgment. In other words his Honour does not at any stage discuss how much worse he thought the condition was as a consequence of the appellant's negligence. In these circumstances the assessment of damages cannot stand. In a case such as the present when the respondent has exhibited suicidal tendencies the inclination of the court would be to reassess damages if that was possible. Unfortunately, the facts upon which a reassessment could be based have not been found by his Honour and as there are many subjective elements involved in an evaluation of this issue it is, regrettably, impossible for this Court to undertake the task of reassessment. Accordingly I would propose: (1) Appeal allowed; (2) Cross-appeal dismissed with costs; (3) Judgment of Abadee J set aside except as to liability and costs; (4) A new trial on the issue of damages ordered; (5) The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act. Cole JA I agree with Clarke JA. Cohen AJA I agree with the reasons of Clarke JA and with the orders he proposes. (1) Appeal allowed; (2) Cross-appeal dismissed with costs; (3) Judgment of Abadee J set aside except as to liability and costs; (4) A new trial on the issue of damages ordered; (5) The respondent is to pay the appellant's costs of the appeal and is to have a certificate under the Suitors Fund Act. Counsel for the appellant: MJ Neil QC and P Sternberg Solicitors for the appellant: Baldock Stacy and Niven Counsel for the respondent: B Toomey QC and J Stewart Solicitors for the respondent: Gibney and Gunson