Lederer Group Pty Ltd v Hodson

Background

1. Mr Hodson commenced employment with Hurex in about June 2020. His offer of employment from Hurex described his position (in the Schedule to the offer) simply as "Cleaner" and provided that he was to report to "Admin" (at the relevant time, as noted above, this was Lederer's administrative assistant, Ms Necovski).
2. Once employed by Hurex, Mr Hodson was allocated to be the afternoon shift cleaner at the Centre, but his duties extended beyond simply cleaning. The evidence was that Mr Hodson's work involved cleaning duties (including cleaning the bathrooms and outside areas of the Centre), locking and unlocking the Centre, and some security tasks (including removal of intoxicated persons from the Centre or deterring children from riding bikes and, in respect of any drug use in the toilets, contacting the police). Ms Necovski's evidence was that there was no difference between the duties of a caretaker and a cleaner.
3. Ordinarily, Mr Hodson worked the afternoon shift at the Centre from 2pm to 9.30pm; and Mr Josh Brydon worked the morning shift from 6.30am to 2pm, although there were some occasions when Mr Hodson would work the morning shift.
4. Hurex had no control over the day-to-day operations of the Centre or Mr Hodson's activities at work. Representatives of Hurex attended the Centre for routine visits and inspections to review work performance and to review any significant issues notified to it arising from the employment. In particular, the evidence disclosed that Stephen Jung, the director of Hurex, visited the Centre periodically (once every four weeks) to check on the system of work and undertake general inspections of the levels of cleaning, staff presentation and work performance and would review any significant incidents or events which had occurred since the previous visit, and identify issues for management, or areas of improvement, to be worked through. Mr Jung would correspond with Ms Necovski and possibly other staff about the timing, frequency and issues identified for management or improvement. Mr Hodson could contact Mr Jung directly if he needed.
5. Hurex had an on-site cleaning supervisor (Ms Margaret Bullen), to whom Mr Hodson initially reported and who would give him instructions on a daily basis. Prior to the incident on 26 October 2020, Ms Bullen had left Hurex and Mr Josh Brydon took over her duties. It was not disputed that Mr Hodson was under the day-to-day control of Lederer in the performance of his duties. Ms Necovski provided instructions to Mr Hodson on tasks to be performed by him. In particular, Ms Necovski said she required Mr Hodson to undertake cleaning of the bathrooms, to oversee the carparks, to sweep the floors and to make sure the bins were emptied.
6. Hurex had in place policies for employee conduct and behaviour, and incident and grievance reporting processes. There was no evidence that Mr Hodson had raised with Hurex any incident, grievance or specific concern about the duties he had to perform at the Centre. Hurex did not have any specific policies regarding the witnessing of traumatic incidents involving third parties while on duty, and considered the events as they unfolded occurred outside the normal scope of contracted duties.
7. Lederer had provided no specific instruction to Mr Hodson on handling confronting or tragic events.

Chronology of Events

1. The precise chronology events of the events that unfolded on 26 October 2020 (much of which can be determined by reference to the CCTV footage in critical respects, which I have reviewed) is important to note.
2. Mr Brydon was performing his work at the Centre doing the morning shift, when at 10:13:17 am, the fatal accident occurred.
3. Mr Brydon arrived at the scene at 10:22:56am (after having been alerted by a member of the public). Mr Brydon was the first Centre employee on the scene. At that time, the deceased's body was uncovered.
4. Ms Necovski arrived at 10:26:54am, just after the first ambulance had arrived. By 10:27:40am, paramedics had placed a white sheet over the deceased's body. By 10.33am, a tarpaulin had been erected by the fire brigade to shield members of the public in the public car park from the scene. There is no doubt that the body of the deceased was covered by the time Mr Hodson arrived in the northern loading dock area (a fact that assumes no little significance in light of the accounts he gave to various medical practitioners or recorded by them that he had seen the uncovered body of the deceased at the scene).
5. From the time of her arrival, Ms Necovski stayed at or close to the scene of the accident. Ms Necovski made a number of telephone calls while at the scene. Initially, Ms Necovski contacted Lederer's head office. At some point shortly after Ms Necovski arrived, she made a telephone call to Mr Hodson to tell him that there had been a fatality and to ask him to come down to the Centre (earlier than his scheduled start time of 2pm) (see primary judgment at [22]). Ms Necovski told him that Mr Brydon was distraught and in no state to continue working. Ms Necovski asked Mr Hodson to come to the Centre "to take over operationally from Josh in the cleaning aspect of the Centre". Thus, as emphasised by Lederer, before Mr Hodson attended the northern dock (the scene of the accident) he knew both that there had been a fatality and that Mr Brydon was distraught and in no state to continue working. (This is relevant to whether Mr Hodson had suffered a "sudden shock", see s 32(2)(b) of the Civil Liability Act.)
6. Mr Hodson attended the Centre shortly after Ms Necovski's call. Mr Hodson first went to the office area, which was vacant, and then attended the cleaning room in the Centre and got his keys and radio (primary judgment at [22]). Mr Hodson called for Mr Brydon but there was no answer. Mr Hodson then had a radio conversation with Ms Necovski and asked where she was. Ms Necovski told Mr Hodson that she was at the northern dock and Mr Hodson walked there. There is no evidence that Mr Necovski directed Mr Hodson to attend the scene but Lederer accepts it may reasonably be inferred that when he asked her where she was he was likely to do so (see AT 24.3).

Medical evidence

1. At this stage it is convenient to set out some of the medical evidence.

Dr Saroha

1. The day after the accident (27 October 2020), Mr Hodson had a consultation with Dr Harender Saroha, a general practitioner whom he had been seeing for anxiety and depression since August 2019 (Exhibit J). Dr Saroha recorded the following: distressed witnessed an accident yesterday in the car park a old men [sic] getting crushed by a truck …
2. Dr Saroha recorded that Mr Hodson was "tearful", "low", had "poor sleep" and was "anxious +++". Dr Saroha prescribed a low dose of diazepam. Further surgery consultations in November 2020 recorded that he remained stressed, was anxious about his work and family; as at 19 November 2020 he had returned to work and he was less anxious, but subsequent entries recorded that he was working long hours, was anxious and stressed, and was having "flashbacks".
3. Dr Saroha's notes indicate that in May 2021 Mr Hodson was referred to a consultant psychiatrist, Dr Narinder Panesar; the referral notes (and letter of referral) record that "[h]e has been extremely distressed and had witness [sic] a fatal accident at work, and since then has been troubled by Flashback[s], which have been impacting his ability to work".
4. Pausing here, Dr Saroha's notes indicate that Mr Hodson gave a history that he had witnessed the fatal accident, which implies that he had actually seen the deceased being crushed by the truck. Ordinarily, one would not "witness" something happening simply by seeing the aftermath of the event, though I accept that this assumes a level of accuracy in the clinical notes. Suffice it to note that the history does not record that Mr Hodson arrived at the scene after the accident had happened and the deceased's body was already covered, as was the case.
5. Dr Saroha also issued a medical certificate for workers compensation purposes diagnosing anxiety and depression, certifying that Mr Hodson had no capacity for any employment until further reviewed (see primary judgment at [102]-[103]).

Dr Panesar

1. Dr Panesar saw Mr Hodson on 11 June 2021. Dr Panesar's report stated that Mr Hodson presented with PTSD with secondary depression; and that Mr Hodson reported "severe PTSD symptoms including reliving his recent trauma in flashbacks and nightmares …". Dr Panesar recorded that: Mr Hodson's trauma is related to having involvement in an incident at work in November 2020 [sic]. While he was at work at the supermarket, he was called out to the dock area where an elderly person was crushed under a truck's front wheels. He saw the crushed deceased body parts. … Mr Hodson told me that he used to see the deceased person regularly when he would go shopping at the supermarket ….
2. After referring to Mr Hodson having experienced severe anxiety and panic attacks, Dr Panesar noted that "[h]e can smell the victim's body, see his blood in his flashbacks".
3. I interpose to note that the history here recorded is one where Mr Hodson "saw" the crushed body parts (something that Mr Hodson cannot have seen at the scene of the accident and could only have seen on the CCTV footage that he watched a few days after the incident; and in any event, the detail which may be gleaned from a viewing of the CCTV is limited). Nor could the blood seen in the "flashbacks" have been attributable to any actual sight of blood at the scene. I refer in due course to Mr Hodson's account of smelling the victim's body.

Dr Saroha's further report

1. On 17 September 2021, Dr Saroha sent a report to the Centre Health Medical Centre Woonona, again noting that Mr Hodson "was witness to an [sic] fatal accident at work place on 26/10/2020" and stating that since the accident Mr Hodson has had anxiety and depression "with flash backs". Dr Saroha had difficulty commenting on a tentative date of a return to work.

Mr Ward

1. Dr Saroha referred Mr Hodson to a clinical psychologist, Mr Rodney Ward, "for an assessment and management of his psychological state under workers compensation". Mr Ward saw Mr Hodson on 11 July 2021. Mr Ward noted that Mr Hodson "reported the presenting problem" as follows (apparently quoting Mr Hodson's words): diagnosed with PTSD and depression / anxiety (Dr Panasar Psychiatrist), working at Corrimal Shopping Centre and elderly gentleman squashed at the back of loading dock, it was a horrible image and smell, constantly getting triggered now to the event and avoiding places and things related to the incident, I feel [I've] changed since that event.
2. Mr Ward stated his belief that Mr Hodson was showing the signs and symptoms of PTSD (DSM-5). The handwritten assessment notes of Mr Ward record that: … working Corrimal Shopping Centre, gentleman squashed back doc [sic] got called in (Centre Mgt called me in). I arrived colleague standing there crying - looked over. gentleman hit by semi-trailer - regular customer in 60's 10am in … (mess, skull popped) smell (horrible image) … Sick @ smell … truck wheels Truck backing beeping
3. In evidence were Mr Ward's clinical notes, which included notes of a consultation on 25 January 2022 including: Sonia called me distressed, fatality at centre, can you come in rushed down, got there quick, parked one end shopping centre went into shopping centre, grabbed radio, called other radio, said at Woolworths Dock, approx. 10am, taken off up there, turned past subway, could hear police sirens, Ambo just pulling in, saw Sonia, pointed to Josh, offsider everyone emotional, frantic, got to Josh, asked what going on, he pointed, that's when I seen it I still don't understand what I seen, arm, leg/torso, bruised in between drive wheels (contorted) … 'Fuck' felt sick & confused - Josh had tears rolling down his eyes, I tried to protect him got Josh into office … I can smell it, meat/shit Sonia told me to block of [sic] entry way, grabbed tape, blocked entry off … couple of days later, I was in office, manager Tony Warren, Centre Manager had video played I saw live what happened added more distressing photos of what happened about 5 days later, gossip in the centre, realised a few days later who it was - most distressing part, seeing the truck go up, like hit bump … recalling it (felt sick) Flashback …
4. In Mr Ward's notes of the consultation on 1 February 2022, it is recorded that: … Sonia pointed at Josh, walked over to Josh, sobbing & crying, pointed to truck can't describe what I saw, mass of body twisted up between wheels, parts not where they should be Could see police tying up tarp … Incident couple days later, walked in on Tony Warren, saw trick on this computer screen. Asked who was it. I'll show you, truck backed back - 10 scd's, saw truck bump up, walked back into my office burst into tears & felt like I was going to throw up. …

Dr Bertucen

1. Meanwhile, in May 2022, the solicitors for Mr Hodson had referred Mr Hodson to Dr Jeff Bertucen for the purposes of an independent medico-legal examination. Dr Bertucen saw Mr Hodson on 10 May 2022 by video consultation. In his report dated 18 May 2022, Dr Bertucen included the following in his account of the history of the incident: Mr Hodson walked to Josh and asked what was going on and Josh pointed saying "He's f**king dead". Mr Hodson then looked towards a parked semi trailer and saw a deceased elderly gentleman about 4 metres away. Mr Hodson initially approached with the intention of possibly performing CPR; however, as he approached, he was suddenly horrified by the man's fatal injuries. In his personal statement [not in evidence] Mr Hodson stated that he visualized the dead man at close quarters and that "half of his face was squashed and I could see brain matter and other horrific injuries" …
2. Dr Bertucen goes on to record that about an hour later "Sonya" allegedly told him to "see if anything… needs to be cleaned up when they move the truck", by which Mr Hodson took to mean that he was being tasked to clean up any human remains; and that by the time Mr Hodson went back to the dock the truck had gone and the fire and rescue were hosing off the car park.
3. I note that much of the history extracted above is simply impossible to have occurred. By the time Mr Hodson arrived at the scene the body of the deceased was already covered. The CCTV footage does not show Mr Brydon pointing towards the deceased and nor does Mr Hodson approach the covered body (the suggestion that he had an intention to perform CPR is inherently implausible when the body was already covered by the white sheet). And, as already noted, Mr Hodson cannot possibly have seen (when he was at the scene) the horrific injuries there described.
4. Dr Bertucen noted in his report that the history and assumptions on which his opinions were based were in the section of the report marked "History of Incident" and that the assumptions were drawn from the oral history provided by Mr Hodson, supplementary GP notes, as well as correspondence of Mr Hodson's treating professionals including Dr Panesar, Mr Ward and Dr Saroha.
5. Dr Bertucen diagnosed Mr Hodson as suffering from a chronic PTSD and comorbid major depressive disorder. Dr Bertucen said that there appeared to be sufficient evidence to suggest that Mr Hodson was suffering from a pre-existing major depressive disorder, although in partial remission at the time of the incident. Dr Bertucen referred to a report by a medico-legal psychiatrist, Dr Judith Clarke, which was dated 27 January 2022 (only a page of which was in evidence which referred to pre-existing and underlying depressive symptomatology). Dr Bertucen partially agreed with Dr Clarke that Mr Hodson's pre-existing and fluctuating major depressive symptoms led to a vulnerability to mental illness but went on to say that: … however, I would argue that if Mr Hodson's account of the subject incident is correct, exposure to a disfigured deceased accident victim would be likely to induce post-traumatic stress disorder in any individual of normal fortitude, even one that did not have a pre-existing psychiatric condition.

Dr Malik

1. In August 2022, the solicitors acting in relation to Mr Hodson's workers compensation claim retained Dr Nabil Malik as an independent expert to provide a medico-legal report, noting that Mr Hodson had alleged he suffered a psychological injury after seeing a fatal accident at work. Dr Malik, a psychiatrist, was provided with a copy of Dr Bertucen's report and various other documents.
2. Dr Malik assessed Mr Hodson via a telehealth consultation. Dr Malik recorded that Mr Hodson told him that "he was exposed to [the deceased's] fatal injuries; he tells me his face was squashed and his brain matter was exposed" and that "everyone was emotional at the time and some of the details of the incident is blurred". Mr Malik records that Mr Hodson also told him that after an hour or so, once legal matters were sorted, he was asked to clean the human remains at the incident site and that when he went back to the site it was being cleaned and hosed down by the fire and rescue department.
3. Mr Malik did not believe that there were any signs of exaggeration, inconsistent responses to examination or testing or malingering.
4. Dr Malik's opinion was that, on the balance of probabilities, the history provided and Mr Hodson's mental state examination fulfilled the DSM-5 diagnostic criteria for PTSD and major depressive disorder; and that these were predominantly caused by the work-related incident, noting that he was exposed to a traumatic event.

Dr Allnut

1. In July 2023, Mr Hodson's solicitors qualified Dr Stephen Allnut as an expert psychiatrist to provide a full medico-legal report, requesting that he make a number of assumptions including (at [18]) that Mr Hodson "observed a deceased elderly man who had been run over by a truck" and (at [19]) that the deceased "suffered horrific injuries which were observed by Mr Hodson". The letter stated that photographs of the scene were available but warned that they "contain graphic images".
2. Dr Allnut was provided with various documents including the pleading and particulars, the statement of Mr Hodson (not in evidence) and various medical and clinical notes and reports.
3. Dr Allnut's report, dated 6 September 2023, following a clinical evaluation through audio visual connection on 28 August 2023, included a report of Mr Hodson's account to him of the day of the incident (which did not include a reference to seeing the deceased body) but also noted that Dr Allnut had reviewed the solicitors' letter of retention (which did include such a reference as noted above).
4. Dr Allnut recorded that when he asked Mr Hodson about what he saw, Mr Hodson said "I can see the area of the truck, I can't see the pictures", at which point he broke down crying. Dr Allnut also recorded Mr Hodson's account that Ms Necovski had asked him to go back and check if the body was still there (and he saw that the police were still there) and that, about one hour later, Mr Hodson was directed to go back to the scene to make sure there was "no mess on the ground", and when he got there firemen were there; that he could not recall what he saw but said that he saw "stuff on the ground" and he did not know what it was.
5. Dr Allnut then reviewed the various medical and clinical documents and reports with which he had been provided, including a psychiatric report dated 27 January 2022 from Dr Clarke (not in evidence) which had concluded that Mr Hodson presented with symptoms consistent with a DSM-5 diagnosis of PTSD in partial remission and an adjustment disorder with anxiety and depression at the time of the trauma exposure. Relevantly, Dr Allnut noted that Dr Clarke thought the history was notably different from the provided documents "which had resulted in some uncertainty most notably about whether he met Criterion A of the condition due to conflicting accounts of what he had witnessed". Dr Allnut noted from Dr Clarke's report that Mr Hodson "noted that he sighted the bodily fluids during this event but there was conflicting evidence about this"; and that Dr Clarke thought that his social situation and pre-existing condition were the predominant cause of the PTSD and that he had experienced a traumatic aggravation of an adjustment disorder but that he appeared to have been partially recovered from that aggravation and it would remit within 6-8 weeks.

Dr Malik's updated report

1. In August 2023, Dr Malik was requested to provide an updated report, which he did. There does not appear to be anything of significance in the updated report. I note that it does not appear that Dr Malik was provided at this stage with Dr Allnut's report (I say this without any criticism of the solicitors requesting the report as it may be that they had not yet been served with Dr Allnut's report). Dr Malik was provided with a vocational assessment report dated 25 March 2022 from Resilia, which recorded a history of injury obtained from Dr Clarke's medical report (and which included the statement that Mr Hodson had "looked over and saw the body of the deceased, which had not yet been covered" and that this made him sick in the stomach). Again, that history is demonstrably incorrect.

Dr Christmas

1. After a move by Mr Hodson to Temora, Mr Hodson commenced seeing another general practitioner, Dr Rachel Christmas. By letter dated 14 September 2023, Mr Hodson's solicitors sent a letter of instruction to Dr Christmas requesting a report from her (and clearly intending to qualify her as an expert witness, since they referred to the Expert Witness Code of Conduct). The letter requested that Dr Christmas take into consideration the matters which were set out at paragraphs 1-27 of the letter and that Dr Christmas take those assumptions (and the documents referred to) into account in providing her report. The documents with which Dr Christmas was provided were the Statement of Claim, a statement dated 29 April 2022 of Mr Hodson (which was not in evidence) and Dr Allnut's report dated 6 September 2023.
2. The instructions that Dr Christmas was requested to take into consideration included those contained at [18] and [19] of the earlier letter to Dr Allnut. They also stated that Mr Hodson had been diagnosed with PTSD with secondary depression (that being in substance the very subject of the opinion that Dr Christmas was being asked to give, i.e., whether in her opinion Mr Hodson currently suffered from a psychological or psychiatric condition pursuant to DSM-5 as a result of the events on 26 October 2020).
3. Dr Christmas provided her report dated 5 October 2023, noting that her first appointment with Mr Hodson was on 5 July 2023, the intent being the completion of a workcover certificate for ongoing workcover purposes and at that time she ascertained that he was suffering from flashbacks, significant anxiety and psychological distress "which he related to a work related incident". Dr Christmas expressed her opinion that Mr Hodson suffers from PTSD "directly as a result of the incident at work in 2020".

Mr Hu

1. On 19 January 2024, Mr Hodson's solicitors requested that a psychologist who had previously treated Mr Hodson (Mr Candour Hu) provide a report. In the letter of instruction, the solicitors again included statements at [18] and [19] that appear in letters of instruction to other medical practitioners. The letter recorded that "[i]n September 2022 it was accepted that Mr Hodson suffers from 17% whole person impairment".
2. Mr Hu's report dated 15 January 2024 acknowledges that it is unclear what level of exposure Mr Hodson had to the accident site and the deceased on the day of the incident; and Mr Hu says that Mr Hodson cannot remember specific details of the scene "which can be interpreted as dissociative amnesia relative to the incident". Mr Hu records that Mr Hodson was asked by senior management to "clean up" the mess (a fact which is not established on the evidence) and says that, given that Mr Hodson was physically present "in the management of the incident", Mr Hu considered that he met the extreme exposure to aversive details for Criterion A.
3. After considering matters relevant to Mr Hodson's ability to work and level of current functioning, Mr Hu concludes that "[a]ssuming that Mr Hodson does have a PTSD diagnosis, the subsequent symptoms appear to be a direct consequence of the incident on the 26 October 2020".

Joint report

1. Finally, Drs Malik and Allnut participated in an expert conclave on 13 February 2024 and the transcript of that conclave comprised their joint report. The briefing materials provided to both of those doctors for the purposes of a conclave and the preparation of the joint report were not in evidence.
2. In the joint report, the psychiatrists agreed on a diagnosis of major depressive disorder and chronic PTSD. They also agreed that Mr Hodson had a pre-existing diagnosable psychiatric condition in that he had a recurrent depressive disorder with associated anxiety, which they noted was being treated. They considered that by the time of the index injury, while he might have had residual symptoms, Mr Hodson appeared to be functioning adequately with limited relatively insignificant symptoms and no mental impairment.
3. The doctors agreed that "the index injury was significant" and it met the DSM-5 Criterion A, triggering the onset of initially an acute PTSD, developing into a chronic PTSD and a recurrence of a major depressive episode and anxiety. They agreed that the "index injury" made a substantial contribution to Mr Hodson's current mental state.
4. Both psychiatrists thought at the time of their reviews that Mr Hodson had ongoing significant psychological symptoms causing distress and impairment and said that these psychological symptoms were a direct result of the incident at work. They said that Mr Hodson's repressive symptoms could be seen as a retriggering of his pre-existing current depressive disorder and in that sense an aggravation.

Pleaded case

1. Mr Hodson's pleaded case (see amended statement of claim) was that there was a fatal motor vehicle incident which resulted in him sustaining a psychiatric injury (at [9]). That allegation was then particularised by reference to 27 matters, including that: (d) The victim's injuries were significant with his skull being detached and his brain clearly visible, and his arms and legs also degloved; … (h) Sonja Necovski directed the Plaintiff to attend the Centre immediately as there had been a fatality that had occurred at the Centre; (i) Within approximately 10 minutes, the Plaintiff urgently attended the Centre without having knowledge of the details of what had occurred at the Centre that morning; … (k) The Plaintiff arrived at the scene of the incident at around the same time as the Police and Ambulance; (l) When the Plaintiff arrived at the northern entrance, Ms Necovski directed him to his Supervisor, Joshua Brydon (who was employed by the first Defendant [Hurex]), who was standing in the back dock area, in close vicinity to the victim; (m) The Plaintiff walked over to Mr Brydon and observed that he was visibly upset. Mr Brydon directed the Plaintiff's attention by pointing towards the victim's body lying on the ground; (n) The Plaintiff looked towards the deceased's body and saw the victim's injuries which included his face being squashed and his brain matter visible; (o) The Plaintiff instantly felt frightened, nervous and as if he was going to vomit; (p) Due to how upset Joshua Brydon was, the Plaintiff took him to an office within the shopping centre, telephoned his partner and requested her to come in to get him, while he tried to settle him down; … (r) Approximately an hour later, Sonja Necovski directed the Plaintiff to go back outside to update her on the status of the scene; (s) The Plaintiff revisited the scene and saw that the ambulance had gone; (t) Sonja Necovski then said to the Plaintiff words to the effect of "when they move the truck, see if there is anything that needs to be cleaned up"; (u) The Plaintiff took that to mean he would have to clean up any human remains left as a result of the fatality; (v) The Plaintiff revisited the scene again and saw that the semi-trailer had left the scene and that there were firemen hosing off the car park where the accident had occurred and assumed that they were hosing off the bodily remains; (w) The Plaintiff returned to the office and informed Sonja Necovski that the truck had gone and that the firemen had cleaned up; (x) Sonja Necovski then directed the Plaintiff to return to the scene and take the Police tape down so that the dock could be used; (y) The Plaintiff went back to the scene again but the Police informed him he could not take the tape down; … (aa) The Plaintiff was then required to continue with his normal cleaning duties and so cleaned the Centre and did his other duties until approximately 10:00pm that night.

Primary judgment

1. In the introduction to his Honour's reasons, his Honour noted (at [4]) that there was no issue that Hurex, as the employer, and Lederer as the host employer owed Mr Hodson a duty of care. His Honour identified the central issues as: whether Mr Hodson suffered a recognised psychiatric illness as a result of the exposure to the scene of the accident, the alleged breach by each of the defendants, and whether any alleged breach was causative of Mr Hodson's psychiatric injury. His Honour noted that the issues were in part complicated by Mr Hodson's pre-accident psychiatric history and the "alleged incorrect history relied upon by the medicolegal experts in reaching their opinions".
2. As will be seen, there is no doubt that some of the history relied upon by at least some of the medicolegal experts was incorrect; in particular, the assertion that Mr Hodson had been exposed at the scene of the accident to the deceased's uncovered body (and thus had seen his horrific injuries). That assertion is clearly falsified by the CCTV footage. Indeed, it would appear that the only occasion when Mr Hodson saw the deceased's uncovered body was when he walked into a colleague's office at the Centre some days later at a time when the colleague had the CCTV footage open on his computer and Mr Hodson then viewed the CCTV footage. Mr Hodson was not directed, or required, to view the CCTV footage as part of his work responsibilities and this was not pleaded as a particular of breach in any event.
3. At [81], his Honour found that, on several occasions prior to the day of the accident, Mr Hodson had failed to open the Centre on time at the commencement of his morning shift (as already noted, Mr Hodson ordinarily worked the afternoon shift but there had been some occasions when he worked in the mornings). His Honour found that on at least one of those occasions Mr Hodson explained his failure as attributable to personal issues. His Honour was satisfied that prior to 26 October 2020 Mr Hodson had shared with his colleagues, including Ms Necovski, that there were issues at home and that he "demonstrated as emotionally upset when doing so". (This is of relevance in light of his Honour's finding as to Lederer's knowledge of Mr Hodson's susceptibility to psychiatric injury - see below.)
4. His Honour noted at [83] that the substantial factual contest related to the events on the day of the accident including the nature and extent of directions issued by Ms Necovski to Mr Hodson.

Grounds of Appeal

1. As adverted to above, Lederer challenges the primary judge's decision on the following three grounds of appeal: 1. The Primary Judge erred in finding the Appellant [Lederer] owed the Respondent a duty of care. 2. The Primary Judge erred in his application of Section 5B of the Civil Liability Act 2002 (NSW) in finding that the Appellant had breached its duty of care. 3. If the Primary Judge was correct in finding that the Appellant owed the Respondent a duty of care, and that it breached that duty, his Honour erred in finding that such breach was a necessary condition of any harm suffered by the Respondent.
2. Hurex filed a notice of cross-appeal on 25 September 2024 against Mr Hodson (the first cross respondent) and Lederer (the second cross respondent), contending that: 1 The primary judge erred in finding that the cross appellant [Hurex] breached its duty of care to the first cross respondent [Mr Hodson] in finding that: (a) The scope and content of the first respondent's [sic; Hurex] duty of care required it to direct the second respondent [Mr Hodson] not to attend significant incidents. (b) The risk of injury was reasonably foreseeable. (c) A reasonable response to the risk would have been to direct the first respondent [Mr Hodson] not to attend a significant incident. 2 The primary judge erred in finding that the second respondent [Mr Hodson]'s injury was caused by the first respondent [Hurex]'s breach of duty of care.
3. There appears to have been some misjuxtaposition of the parties in the above grounds of cross-appeal. I have included in square brackets the party to which I understand Hurex is intending to refer in its grounds of cross-appeal. Hurex sought an extension for the filing of the cross-appeal, which was granted during the hearing in this Court (see AT 40.12).

Ground 1 of Lederer's Appeal

1. As extracted above, Ground 1 of Lederer's grounds of appeal challenges the finding that it owed Mr Hodson a duty of care. This raises the issue as to whether the duty of care that Lederer accepted was owed to Mr Hodson at general law was negatived by reason of the operation of s 32 of the Civil Liability Act.

Lederer's submissions

1. In its submissions, Lederer addresses in turn the three elements required to be satisfied for s 32 to negative a duty of care in relation to the causation of pure mental harm (as set out by Basten JA in Optus Administration at [36]). As extracted above, s 32 specifies what Lederer must or ought to have foreseen in order for a duty not to cause mental harm to have arisen on its part, namely that: (i) a person of normal fortitude might; (ii) in the circumstances of the case suffer; (ii) a recognised psychiatric illness, if reasonable care were not taken.

(i) Person of "normal fortitude"

1. Lederer submits that the primary judge misdirected himself on this question by placing undue weight on the knowledge by Lederer of Mr Hodson's "emotional problems". Lederer says that, whatever the relevance of Mr Hodson's emotional problems, they were not such that they deserved any significant weight. Lederer further points out that the knowledge of Mr Hodson's emotional problems was derived from him talking from time to time about marital problems as an explanation for failing to open the Centre on time.

(ii) Circumstances of the case

1. Lederer accepts that, for the purposes of considering the "circumstances of the case" in s 32(1), it may be necessary to specify the critical event "with a degree of precision" (citing Optus Administration at [54]). In this regard, Lederer submits that the primary judge's consideration of the circumstances is encapsulated by his reference to the "scene" confronting Mr Hodson (referring to [189]), which Lederer accepts would presumably incorporate the findings at [91] (see above).
2. Lederer contends that the primary judge failed to give any proper consideration to the matters in s 32(2), which sets out a non-exhaustive list of matters included in "the circumstances of the case" for the purposes of the section. Lederer submits that, while not necessary conditions of the existence of a duty of care (see Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 at [27]-[29] (Wicks)), these factors are relevant to a finding as to the "circumstances" for s 32(1).
3. As to s 32(2)(a) (i.e., whether or not the mental harm was suffered as the result of a sudden shock), Lederer says that, while the circumstances were plainly confronting, the primary judge does not appear to have considered whether there was a "sudden shock". In this regard, Lederer notes that before Mr Hodson arrived at the scene he knew there had been a fatality and he knew that Mr Brydon was upset. Lederer emphasises that, contrary to the pleaded case, the deceased's body was covered (noting that the primary judge only found that the covered body was within Mr Hodson's line of sight and that there was no finding that Mr Hodson actually saw it). Further, Lederer says that, if Mr Hodson did see the covered body, it could only have been for a matter seconds. Lederer thus argues that there was not a "sudden shock".
4. As to the matters in s 32(2)(b) and (c) (i.e., whether Mr Hodson witnessed, at the scene, a person being killed, injured or put in peril; and the nature of the relationship between Mt Hodson and any person killed, injured or put in peril), Lederer says that both of those matters tell against the existence of a duty in the present case. Lederer complains that the primary judge does not appear to have afforded any weight to those matters. In that regard, it is noted that Mr Hodson did not witness the accident (since he only arrived at the scene after the body was already covered) and there was no relationship between Mr Hodson and the deceased (other than that the deceased had been a regular customer of the Centre and Mr Hodson was not aware of the identity of the deceased until some time after the incident had occurred).

(iii) Recognised psychiatric injury

1. As to the foreseeability of a "recognised psychiatric illness", Lederer accepts that the issue of foreseeability does not require expert knowledge. Lederer says that the question whether it was foreseeable to it, in the circumstances of the case, that Mr Hodson might suffer a recognised psychiatric illness (if reasonable care to avoid the risk of mental harm were not taken) is to be determined by reference to the state of knowledge of Lederer (and not by reference to whether a person with expertise in psychology would have foreseen a recognised psychiatric illness).
2. Lederer accepts that the case was conducted on the basis that Ms Necovski's knowledge was to be attributed to Lederer. Accordingly, Lederer says that it was necessary for Mr Hodson to adduce sufficient evidence to establish the foreseeability requirements imposed by s 32 by reference to Ms Necovski's knowledge.
3. Lederer says that there was little evidence about Ms Necovski's knowledge of the foreseeability of Mr Hodson suffering a recognised psychiatric illness if exposed to the circumstances. Lederer says that, while Ms Necovski was cross-examined about her awareness of Mr Hodson being "a man with some emotional problems", and about her awareness generally of occupational health and safety (OHS) issues and the need to protect employees from stressful environments, there was no evidence before the primary judge about what Ms Necovski considered was the foreseeability of Mr Hodson (or anyone else) suffering a recognised psychiatric illness if exposed to the particular circumstances.

Mr Hodson's submissions

1. For Mr Hodson, it is contended that his Honour did not err in finding that s 32(1) did not apply to negative a duty of care owed by Lederer to him in the present case. Mr Hodson poses the relevant question as being whether it was reasonably foreseeable that, if reasonable care was not taken by Lederer, a shopping centre cleaner who was directed by his host employer to attend at a location in circumstances that were known to be confronting and sent to an area where a deceased body lay and where a distraught work colleague, ambulance persons and vehicles and police officers and vehicles were also present, might suffer a recognisable psychiatric injury as a result of his experiences at the scene (citing Wicks at [33]). Pausing here, as a factual matter it was not established that Mr Hodson was directed to attend at the location in the first place (as opposed to it being foreseeable that he might attend once he was told where Ms Necovski was - hence the debate which arose on appeal as to whether this was an 'omission' case or one involving a positive course of conduct).
2. Stated in other words, Mr Hodson asks whether it was reasonably foreseeable that sights of the kind he might see, sounds of the kind he might hear, words of the kind that may be spoken to him, smells of the kind he might smell, and tasks he might need to undertake (including to ease the suffering of his work colleague and in seeking to remove him from the vicinity) would be such, taken in combination, as might cause a person of normal fortitude to suffer a recognised psychiatric illness (again citing Wicks at [33]).
3. The enquiry being prospective, Mr Hodson argues that whether any of the matters required to be considered prospectively actually transpired (so as factually to occasion or contribute to any harm suffered) is of secondary consideration (citing Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 at [93]).
4. Mr Hodson points to the recognition in Wicks (at [26]) (which Lederer here accepts) that none of the matters to which s 32(2) is directed is "to be treated as a condition necessary to finding a duty of care", nor would their existence be a sufficient condition for such a finding (citing Wicks at [27]-[28]).
5. Mr Hodson acknowledges that, when discussing s 32 of the Civil Liability Act, the primary judge did not expressly address each of the matters listed in s 32(2), but Mr Hodson submits that the matters which may require attention under s 32 had already been addressed by his Honour in the earlier consideration of the circumstances of the case and the detailed findings of fact that his Honour made. Mr Hodson notes that those findings include the finding (at [93]) that, after attending upon Mr Brydon at the scene of the fatality, Mr Hodson exhibited signs (feeling numb, emotional and upset, necessitating his return to the office where he sat alone and cried) which Mr Hodson says are consistent with his having experienced sudden shock.

Hurex' submissions as to Ground 1 of Lederer's appeal

1. Hurex generally adopts the submissions of Mr Hodson on this ground of appeal but makes the following further submission that s 32(1) of the Civil Liability Act is cast in negative terms (citing Wicks). Hurex notes that s 32(2) does not prescribe any particular consequence as following from the presence or absence of one or more of the matters there included in "the circumstances of the case" for the purposes of the section. Thus, Hurex says that neither sudden shock nor witnessing a person being killed, injured or put in peril is a necessary or sufficient condition for a finding of the relevant duty of care. (As already noted, Lederer does not contend otherwise.)
2. Hurex repeats the factual circumstances as to Mr Hodson's presence on the scene and says that, "by invitation or acquiescence", Ms Necovski permitted Mr Hodson to attend the loading dock in "an environment of heightened emotion and the fresh tragedy of the customer's death", with the customer's corpse in situ and a distressed work colleague so affected he was unable to continue work and ongoing work by emergency services. Pausing here, it is by no means established that anyone, let alone Ms Necovski, realised at the time that the deceased was a customer.
3. Hurex accepts that it is difficult to categorise Mr Hodson's distress when attending at the scene as arising from a sudden shock but says that, even absent sudden shock, the scene overall and the information given to Mr Hodson before attending the loading dock and being permitted or directed to attend the loading dock and to approach and to attend Mr Brydon, were sufficient for the primary judge to conclude that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
4. Hurex says that, like the rescuers in Wicks who were leading away passengers who were not physically injured but psychiatrically affected by the event, when Mr Hodson attended on Mr Brydon he had been informed and witnessed a colleague who was deeply psychologically affected by the tragic accident, and Mr Brydon's process of suffering was not over when Mr Hodson arrived at the scene of the tragedy and rendered him aid by taking him from the scene to the office. Hurex says that the primary judge was correct to conclude that it was reasonably foreseeable on the part of Lederer that a person of normal fortitude might suffer a recognised psychiatric illness and Lederer's duty of care is not excluded by s 32 of the Civil Liability Act. I note that Hurex appears to be here emphasising the impact of Mr Brydon's distress on Mr Hodson. However, I note that Mr Hodson did not specifically plead below that Mr Brydon's distress in and of itself contributed to his psychiatric injury (other than making reference to his exposure to "the traumatic incident").

Determination

1. For completeness I note that when the matter was before the primary judge, Lederer had handed up a Statement of Issues that included whether Mr Hodson met the threshold test for mental harm under s 30(2) of the Civil Liability Act but it was accepted by counsel then appearing in the matter that the reference to this section was in error (and the issue as there expressed - issue 3 as to liability - was withdrawn). In oral submissions on appeal, it was accepted by Lederer's Senior Counsel, who did not appear at first instance, that s 30 of the Civil Liability Act might nevertheless have some relevance insofar as it might indicate the kind of mental harm contemplated to be the subject of s 32 (see AT 30). However, it was not suggested that the kind of mental harm arising from shock to which s 30 refers provided any assistance in determining the issue as to s 32 in the present case.
2. Lederer, as noted above, accepted that the case was conducted on the basis that Ms Necovski's knowledge was to be attributed to it. Lederer argues that the real issue on the first ground of appeal is as to whether Lederer had constructive knowledge (through Ms Necovski) that a person of normal fortitude might suffer a recognised psychiatric injury from exposure to the scene of the accident (or, as Mr Hodson's case was ultimately put) to the "aftermath" of the accident.
3. Lederer conceded (AT 10) that Ms Necovski either did foresee or ought to have foreseen, when she requested Mr Hodson to attend at the Centre, that he might attend the scene of the accident. That concession is an appropriate one to make in circumstances where Mr Hodson ordinarily received his day to day instructions from Ms Necovski - and Ms Necovski was at the scene of the accident. No doubt Ms Necovski ought also to have foreseen that, if Mr Hodson attended at the northern dock then he might see the emergency vehicles and the covered body, as well as his distressed colleague.
4. What I do not accept is that Ms Necovski ought to have foreseen that a person of normal fortitude might suffer a psychiatric injury if confronted with such a scene. The submission that such a scene, with a covered body, would be even more confronting than a scene where the body was uncovered and the horrific injuries were visible does not accord with common sense. One might readily foresee that a person of normal fortitude might be traumatised (and suffer some form of psychiatric injury) if actually exposed to the kinds of injuries that Mr Hodson described in his accounts to various of the medical practitioners (contorted torso, limbs under the wheels of the truck, squashed face and brain matter visible). However, by the time Mr Hodson arrived at the scene (and indeed for some time before he arrived at the scene) none of those injuries was visible.

Ground 2

1. Lederer does not challenge the finding by the primary judge (at [193]) that the risk of harm identified by Mr Hodson was foreseeable for the purposes of s 5B(1)(a) of the Civil Liability Act. However, Lederer does challenge the finding at [193] that the risk was not insignificant.
2. Lederer notes that at [194]-[195] the primary judge sets out aspects of the way in which Mr Hodson put his case as to the precautions which he alleged Lederer was required to take for the purposes of s 5B(1)(c). Lederer takes no issue with the reference by the primary judge at [196] to authorities for the proposition that the issue as to what a reasonable person would have done in response to the risk of harm must be considered prospectively nor as to the need to take into account the matters in s 5B(2) of the Act.
3. However, Lederer's complaint is that, after addressing those matters, the primary judge's reasoning on the question of breach is to be found in one paragraph ([198]) in which his Honour found that there was a reasonable probability that a person would suffer psychological injury if exposed to the scene of the fatal accident (and that the precaution which Lederer ought to have taken "was relatively simple in that it required no more than a direction to the plaintiff that he was not to attend the scene of the fatality").
4. Lederer complains that there is no reasoning in support of the finding that the risk of harm was not insignificant. Lederer says that the primary judge erred by attributing weight to the likely seriousness of the harm in circumstances where the cross-examination of Ms Necovski was not directed to Ms Necovski's awareness of the likely seriousness of any harm to Mr Hodson from him being asked to attend the Centre and from her knowledge that he might attend the scene. Again, Lederer points to the fact that the scene when Mr Hodson arrived was one in which the deceased's body had already been covered and where Mr Hodson was not asked to attend the scene to perform any particular duties in relation to the deceased's body.
5. Next, Lederer contends that the primary judge erred in finding that Ms Necovski ought to have taken the reasonable precaution of directing Mr Hodson not to attend the scene of the fatality. Lederer complains that the primary judge failed to give any, or any proper, consideration to all of the relevant circumstances confronting Ms Necovski. Lederer says that those circumstances included that: the fatality was a matter which was plainly out of the ordinary and would be properly regarded as an emergency; Ms Necovski was the most senior person from Lederer on the scene and was required to make a series of decisions in quick succession taking into account a range of matters; Ms Necovski was managing that situation having attended the scene before the deceased's body was covered; and the matters which Ms Necovski was required to address included not only Lederer's obligations to workers to whom it owed a duty of care but also extended to its obligations to other invitees at the Centre, including shoppers and tenants. Lederer says that those other duties could not be said to be unimportant to the proper and safe operation of the Centre.

Mr Hodson's submissions

1. Mr Hodson submits that Lederer's complaint as to the sufficiency of the reasoning of the primary judge, when addressing the matter of "not insignificant risk", is without merit for the following reasons.
2. First, Mr Hodson says that the criticism must be seen in context and in light of earlier factual findings and findings in the context of the risk of harm identified, and the findings as to foreseeability. Mr Hodson says that the risk of harm he advanced was not the subject of challenge by Lederer and was accepted by the primary judge (as set out at [193]).
3. Mr Hodson points out that any assessment of breach depends upon an identification of the relevant risk of injury (noting Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 (Dederer), at [18] and [59] per Gummow J); and that assessment is required to be undertaken prospectively (both as to foreseeability and materiality) and not by reference to the precise circumstances in which it materialised (Stojan (No 9) v Kenway [2009] NSWCA 364 at [136] per McColl JA). Reference is also made to Collins v Insurance Australia Ltd (2022) 109 NSWLR 240; [2022] NSWCA 135, at [134] per Basten AJA (with whom Meagher JA agreed). Mr Hodson notes that the purpose of such an assessment is to facilitate the determination of whether a reasonable person in the position of the defendant would have taken precautions the defendant did not (Dederer at [59]).
4. It is noted that Lederer accepts that the primary judge's finding as to foreseeability for the purposes of s 5B(1)(a) of the Civil Liability Act was open to him and makes no challenge to it. Mr Hodson says that Lederer therefore accepts the risk of injury to Mr Hodson, or the class of persons of which Mr Hodson was a member, viewed prospectively was foreseeable; and that this necessarily triggers an obligation within the terms of s 5B of the Civil Liability Act to consider, given the foresight of the risk of and response (if any) to, any possible occurrence of harm.
5. Second, Mr Hodson says that against this background the primary judge was required to find whether the risk "was not insignificant", and then determine whether, and if so, which precautions (if any) a reasonable person in the defendant's position would have taken. It is noted that this has been described as a more demanding test than the common law test (of the risk being real and not farfetched or fanciful) "but not by very much" (Bunnings Group Ltd v Guidice [2018] NSWCA 144 at [53]-[54]). Reference is also made to Prouten v Chapman [2021] NSWCA 207 at [24] (per Meagher and Leeming JJA) where the test was said to be "a slightly more demanding standard".

Hurex' submissions as to Ground 2 of Lederer's appeal

1. Hurex again adopts Mr Hodson's submissions on this ground. Hurex says that Mr Hodson was invited, or permitted, to enter into a highly charged, emotional and distressing environment when he did not need to attend that environment to complete his work; and that the primary judge was correct to conclude that the risk of harm was foreseeable and not insignificant and that Lederer had breached the duty of care it owed to Mr Hodson.

Determination

1. Insofar as the challenge to the finding that the risk of harm was not insignificant involves a complaint as to the adequacy of the primary judge's reasons on this issue, I accept that his Honour's reasoning on this issue was expressed in a conclusory fashion. Nevertheless, as Mr Hodson submits, his Honour did consider throughout the reasons matters relevant to the assessment of the significance or otherwise of the risk (and in any event the substantive complaint by Lederer is as to the finding that the risk was insignificant).
2. It is of course necessary accurately to identify the relevant risk of harm. In the present case, his Honour noted that the risk of harm alleged was the risk of a person suffering psychological injury if exposed to the aftermath of the fatal accident (by reference to the presence at the scene of emergency vehicles, the truck involved in the accident, the covered body adjacent to the truck's wheels and a distressed colleague known to the person) (see at [192]). There is no challenge here to the identification of the risk of harm. What is challenged is whether it was "not insignificant".
3. It is recognised that the requirement that the risk be not insignificant imposes a (slightly) higher standard than the not "far-fetched or fanciful" test at common law. The Ipp Committee, in the Review of the law of Negligence Report (2002) (Ipp Report), referred to the intention of the phrase as being to indicate a risk that was of a higher probability than the test at common law posed but not so high as a "substantial risk" (Ipp Report [7.15]; and see the authorities to which the parties here have referred). In Benic v State of New South Wales [2010] NSWSC 1039, Garling J noted that the phrase was intended to refer to the probability of the occurrence of the risk (i.e., not to the seriousness of the resulting harm if the risk eventuated).
4. In the present case, the possibility of a person suffering some form of mental harm as a result of exposure to the accident scene (but not to the actual injuries of the deceased other than perhaps any smell perceived as emanating from the deceased's body) was not clearly addressed. However, it is instructive to refer to the psychiatrists' evidence in that regard. In particular, Dr Allnut (who recognised that there was uncertainty as to whether Mr Hodson actually saw the deceased's injuries) considered that exposure to the scene itself (or perhaps more accurately repeated exposure to the scene) was the cause of the mental harm suffered by Mr Hodson. In those circumstances I consider that the finding that the risk of harm was not insignificant cannot be said to be incorrect.

Ground 3

1. As to whether Mr Hodson's mental harm was caused or contributed to by the breach of duty that his Honour found (i.e., the failure to direct Mr Hodson not to attend the scene), Lederer says that the most relevant evidence going to this question was given by Drs Allnut and Malik, the two psychiatrists who had been retained by the plaintiff and Hurex respectively to examine Mr Hodson and assess him for medico-legal purposes.
2. Lederer accepts that the opinions expressed by Drs Allnut and Malik (and to a lesser extent some of the other doctors and allied health professionals referred to by the primary judge) supported Mr Hodson's case that his mental harm was caused by or materially contributed to by his attendance at the scene of the fatality. However, as contended at trial, Lederer argues that the assumptions on which the opinions were based were not proved and that, as a consequence, little or no weight should be afforded to those opinions (a contention that the primary judge rejected).
3. Lederer contends that none of the matters relied upon by the primary judge when rejecting Lederer's submission on this issue supported that direction. Lederer complains that his Honour's reasoning does not engage with the degree and nature of the departure between the assumptions as instructed to be made by the experts and the facts as found by the primary judge. As to the first and second of those matters (the multiplicity of the factors considered by the medical experts and the fact that they were not cross-examined), these appear to be the nub of Lederer's present complaint (see below).
4. As to the third matter identified by the primary judge (at [135]), namely the lack of challenge made in cross-examination as to Mr Hodson's account of his symptoms other than as to exaggeration, Lederer says that this is irrelevant as the relevant analysis was the difference between the findings by the primary judge and the assumptions relied upon by the experts. Lederer says the fourth matter relied upon by his Honour (at [136]), namely the recognised caution in relying on recorded accounts of health professionals, was also irrelevant.
5. Lederer maintains that none of the opinions of various treating doctors or allied health professionals provided cogent evidence on the critical issue, namely whether Mr Hodson's psychiatric conditions were caused or materially contributed to by Lederer's breach of duty. In particular, Lederer contends that the differences between the assumptions the experts made or were asked to make and the facts proved were of such materiality that the facts proved did not provide a "fair climate" (adopting the words in Wicks) for consideration of the opinions of the experts.

Mr Hodson's submissions

1. As to the challenge as to the finding of factual causation pursuant to s 5D of the Civil Liability Act, Mr Hodson says that at the threshold of any analysis of this issue is the assessment of any injury from which a person may suffer; and then one asks whether a defendant's conduct (breach) had some effect in the production of that injury (citing Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, at [23]); and that this is determined by the application of common sense. Mr Hodson says that what is required in some cases is the drawing of robust and pragmatic inferences, especially where there are various possible causes and there is difficulty in ascertaining which of them was the cause of the damage suffered (citing Robinson Helicopter Company Inc. v McDermott [2016] HCA 22; (2016) 90 ALJR 679, at [86]).
2. Mr Hodson points to the findings by the primary judge as to: his emotions when he was in the loading dock with Mr Brydon ("confused, upset and felt sick") ([93]); and that at the same time "his stomach was 'turning, shaking'" and "… he was attempting to 'keep it together' to be an effective support for Mr Brydon" ([93]); that, for the balance of the day, Mr Hodson felt numb, emotional and upset, necessitating his return to the office on several occasions where he sat alone and cried ([93]) and that, while giving evidence as to the matters Mr Hodson was emotional and struggling to maintain his composure; and his demeanour was consistent with genuinely recalling the trauma of the day and his emotional/physical response to it. Mr Hodson notes that his Honour found that Ms Necovski asked him not once, but on multiple occasions how he was, he appearing to her to have been affected by what had occurred ([73]).
3. Mr Hodson also points to the findings as to his attendance on Dr Saroha the day after the incident, who prescribed diazepam; and to Dr Saroha subsequently having recorded that Mr Hodson had experienced flashbacks with a lack of motivation and self-esteem; and her having completed a medical certificate and having referred Mr Hodson to a psychiatrist, who reported him to be suffering from severe PTSD symptoms including flashbacks and nightmare, avoidance, numbness, anxiety and panic attacks, hyperarousal, lack of concentration, poor memory, angry outbursts and exaggerated startle response.
4. Mr Hodson emphasises that (as already noted) it was not suggested to him that his evidence as to the above matters was untrue; rather, the only challenge was to their extent.

Hurex' submissions on Ground 3 of Lederer's appeal

1. Hurex adopts the submissions made by Lederer (at [32]-[38]) on factual causation in support of Ground 2 of Hurex' cross-appeal (see below). It accepts that it did not at the hearing advance any position in relation to causation. Consistently with this, in respect of Lederer's appeal, Hurex does not advance any further specific position on causation in the appeal.

Determination

1. Expert evidence which is based upon certain assumptions which are not ultimately proved in evidence is "of little or no value" or "irrelevant" (see Ramsay v Watson (1961) 108 CLR 642, at 649; [1961] HCA 65 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ) (Ramsay); see also Eric Preston Pty Ltd v Euroz Securities Ltd (2011) 274 ALR 705; [2011] FCAFC 11, [171] (Jacobson, Foster and Barker JJ); and Paric v John Holland Constructions Pty Ltd (1985) 62 ALR 85; [1985] HCA 58 (Paric) (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ)), to which Lederer has referred.
2. The authors of Cross on Evidence, at [29070], express this as follows: The "basis rule" provides that an expert opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of primary fact which are sufficiently like the factual assumptions on which the opinion is based to render the opinion of value ….
3. The function of this "proof of assumption" or "basis" rule has been said to highlight the irrelevance of expert opinion evidence resting on assumptions not back by primary evidence (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, at [90] per Heydon J).
4. There has been some debate as to whether the High Court in Ramsay laid down a rule of admissibility, or whether it provided instruction as to the weight to be attached to expert evidence in the absence of the proof of the facts which underlie the evidence. However, it seems reasonably clear now that, in the absence of proof, it is a matter of admissibility, not simply weight (see R v Ryan [2002] VSCA 176, at [9] (Ormiston, Vincent and Eames JJA)). However, one may not know at the time an expert report is tendered whether the factual assumptions on which it is based will or may ultimately be made good. It was said by Heydon J in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (at [64]) that in circumstances where: … other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material.
5. Here, of course, as the primary judge noted, there were a number of facts or factual assumptions on which the experts' opinions were based, some of which were established or not disputed on the evidence.

Hurex' Cross-Appeal

1. As noted above, Hurex brings a cross-appeal in relation to the finding that it breached its duty of care to Mr Hodson for failing to direct him not to attend "a significant incident".

Hurex' submissions - Ground 1 of Cross Appeal

1. Hurex refers to Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; [2005] HCA 15 (Koehler) at [45], where the High Court held that in determining whether the kind of harm (namely psychiatric injury) to the particular employee was reasonably foreseeable and the content of the duty which an employer owes an employee to take reasonable care to avoid that injury, attention must be given to the nature and extent of the work being done by the particular employee. Here, as noted above, Mr Hodson's primary duties were that of cleaning and closing the centre, with some basic maintenance and security work from time to time. Hurex says that Mr Hodson was neither employed, nor directed, to respond to patrons suffering life threating conditions or significant injuries. (That submission does not take into account the evidence that Mr Hodson did have a role in responding to issues such as intoxicated persons or drug users. While his role may only have required him to contact emergency services or the police in those circumstances it can hardly be said that his role could not have exposed him to persons suffering life threatening conditions or significant injuries).
2. Hurex says that there was no evidence that the nature of the duties per se made it reasonably foreseeable that an employee could suffer psychiatric injury from performance of the duties; and therefore there was nothing in the nature of Mr Hodson's employment that would have put Hurex on notice that his work was likely to cause psychiatric injury (unlike the situation in Kozarov v State of Victoria (2022) 273 CLR; [2022] HCA 12).
3. Hurex says that in the circumstances, a reasonable person in the position of Hurex would not have foreseen the risk of psychiatric injury to Mr Hodson and the primary judge erred in finding otherwise (and in further finding that a reasonable response to the risk would have been to direct Mr Hodson not to attend a significant incident). Hurex accepts that, where the risk of psychiatric injury is not reasonably foreseeable from the nature and extent of the work the employee has agreed to perform, reasonable foreseeability may nevertheless arise where there are signs or information known by an employer that an employee is at risk of psychiatric injury from events at the workplace, and that information may in turn inform the content of the duty of care owed. However, Hurex says that there was no indication to Hurex of any particular vulnerability on the part of the plaintiff in doing the work he had agreed to do and there were no signs known by Hurex that he was vulnerable to harm. Hurex emphasises that there was no suggestion that the information as to Mr Hodson's emotional problems was conveyed by Mr Hodson to Hurex and that there were no evident signs warning of the possibility of psychiatric injury known by Hurex.

Hurex' submissions - Ground 2 of Cross Appeal - Causation

1. Ground 2 of Hurex' cross-appeal goes to the finding of causation.
2. Hurex says that Mr Hodson was not directed by Ms Necovski to attend the northern dock (Ms Necovski having told him where she was when Mr Hodson asked) and that he did not do so to undertake cleaning or the work that he was being asked to perform on that day. Hurex says that it is not readily apparent that at the time Ms Necovski told him where Mr Brydon was, Mr Hodson knew the northern dock was the scene of trauma. Hurex says that Mr Hodson's exposure to the events on the north dock arose either out of his own decision to attend that area and to provide solace to his colleague (Mr Brydon) or that of Ms Necovski (who was aware of the trauma there) having failed to direct him not to do so.
3. Hurex says that a direction by Hurex to the effect that workers such as Mr Hodson were not to attend "a significant incident", would not have prevented a worker such as Mr Hodson seeking to enquire about the well-being of a colleague. Hurex thus submits that, in the circumstances, even if breach is found against Hurex, such breach is not causative of the injury that was found to have been sustained.
4. As to the question whether the plaintiff's mental harm was in fact caused or contributed to by his attendance at the scene in the factual circumstances as found by the primary judge, Hurex adopts the submissions of Lederer. It is submitted that if those are accepted the claim against Hurex would fail on the same basis.

Mr Hodson's submissions as to Cross Appeal

1. Mr Hodson notes that Hurex accepts that Lederer provided Mr Hodson with no instructions as to the handling of confronting or tragic events; and does not suggest that it had done so. Mr Hodson says that the reasons given by the primary judge that a person in the position of Mr Hodson could be confronted with a significant incident mean that a relevant risk of injury arose, and it is noted that nothing was suggested by Hurex to have been done to address this risk whether by way of training, instruction, supervision or direction to the host employer or its own employee.
2. Thus Mr Hodson submits that the primary judge correctly found that Hurex, as Mr Hodson's employer, was liable for the injury sustained.

Determination

1. I do not accept that it was reasonably foreseeable by Hurex (who was not in control of the Centre and not responsible for giving day to day instructions as to the work that cleaning contractors supplied by it to Lederer were to do) that a person in Mr Hodson's position might suffer psychiatric injury if not directed by Hurex not to attend a significant incident at work.
2. Further, I accept the force of the criticism by Hurex that the direction it is said should have been given was imprecise and would give rise to practical difficulties in its implementation.
3. Ground 1 of the cross-appeal is made good. Ground 2 of the cross-appeal results in the same conclusions as Ground 3 of the Lederer appeal and should be upheld.

Costs

1. Ordinarily, costs would follow the event. Both Lederer and Mr Hodson sought an opportunity, depending on the outcome of the appeal and cross-appeal, to make submissions as to costs. It is not clear that either will now wish to do so, I propose that the ordinary order for costs be made and that, if any party, having considered these reasons, wishes an opportunity to make submissions as to a different costs order that party should notify my associate by 10 January 2023 and directions can then be made for any brief submissions on costs to be made and for the issue to be determined on the papers. Subject to any such submissions, the costs order now to be made will stand.

Conclusion

1. For the above reasons I propose the following order: 1. Appeal and cross-appeal each be allowed with costs.
2. LEEMING JA: I have had the advantage of reading the reasons for judgment of Ward P and Basten AJA in draft. I agree with the orders proposed by Ward P, and with their Honours' reasons, and make the following comments by way of emphasis.
3. Both Hurex and Lederer owed a duty of care in relation to Mr Hodson, as actual and "host" employer (the duties are different, but little turns on that for present purposes). It was confirmed in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, which was not governed by the civil liability legislation, that a claim for damages for psychiatric injury turned on whether the risk of psychiatric injury to the plaintiff was reasonably foreseeable. "The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable": at [35]. Such cases are intrinsically and inevitably fact-dependent. As much may be seen in this Court's decision in Karzi v Toll Pty Ltd [2024] NSWCA 120 at [4]-[6] and [102]; the same point was made in Robinson v EACH Ltd [2024] VSCA 313 at [126]-[128].
4. The enactment of the Civil Liability Act 2002 (NSW) has not altered this. Section 32 demands a cognate factual inquiry, in relation to Mr Hodson's claim against Lederer (although it is made inapplicable by s 3B(1)(f) of the same statute to the claim against Hurex for modified common law damages under Division 3 of Part 5 of the Workers Compensation Act 1987). As Ward P and Basten AJA observe, aspects of s 32 give rise to issues which need not be resolved in this appeal, and I express no view on them.
5. As the other members of this Court explain, on the facts of this case, it was not reasonably foreseeable that the limited exposure to the carpark where the fatality took place, including the presence of Mr Hodson's distressed colleagues, would result in any harm. Nor was there any breach of duty in Ms Necovski instructing Mr Hodson to attend and to walk over to Mr Brydon to remove him from the scene, especially having regard to the fact that Mr Brydon was also owed a duty of care.
6. Finally, as Ward P and Basten AJA explain, one can confidently conclude from the CCTV footage that the instructions upon which the plaintiff's experts were briefed - to the effect that Mr Hodson had directly witnessed the uncovered body of the deceased that morning - were incorrect. In this Court, counsel candidly and appropriately conceded as much. Indeed, the manner in which Mr Hodson's counsel opened the case at trial makes it tolerably plain that he anticipated that his client would not give evidence that he actually saw the uncovered body of the deceased. This is not to imply that there was any conscious or deliberate embellishment by Mr Hodson, who had also seen albeit after the event the CCTV footage of the accident occurring. It is a simple example of the unreliability and malleability of memory, especially when - as is often inevitable in the litigation process - a witness is repeatedly called upon to recollect traumatic events. Spigelman CJ once observed that memory is plastic and "[w]itnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events that did not happen": JJ Spigelman AC, "Truth and the law" in N Perram and R Pepper, The Byers Lectures 2000-2012 (The Federation Press, 2012) at 250. This is an aspect of the "ordinary human experience" to which McClelland CJ in Eq referred in Watson v Foxman (1995) 49 NSWLR 315 at 319 and which is a fundamental aspect of the fact-finding process in litigation.

Nature of the evidence

1. Only two witnesses gave oral evidence and were cross-examined, namely, the plaintiff and Sonja Necovski, the manager of the shopping centre on duty at the time of the incident. Ms Necovski gave evidence of the steps she had taken once she became aware of the accident, including requesting that the plaintiff attend, in circumstances where his colleague on duty that morning, Mr Josh Brydon, was emotionally distressed and, in Ms Necovski's view, required assistance and to be relieved of his work duties.
2. Whether Ms Necovski's employer, the appellant Lederer Group Pty Ltd, was in breach of any duty of care it owed to the plaintiff, was to be assessed on the basis of the factual evidence as to the events of that morning, as adduced from the plaintiff and Ms Necovski respectively, and the documentary records. There was little dispute as to the evidence given by Ms Necovski of the steps she took; the timing of the events was largely confirmed by CCTV footage of the loading dock where the accident occurred.
3. The critical questions, namely whether the appellant owed the plaintiff a duty of care, and whether the conduct of Ms Necovski constituted a breach of that duty, involved questions of law and inferences drawn from the facts, rather than resolving disputes as to the primary facts. Ms Necovski's perceptions as to how her conduct might be viewed were largely immaterial. The only contentious issue concerned Ms Necovski's knowledge of the degree of emotional fragility of the plaintiff.
4. The plaintiff's evidence, on the other hand, was contested, especially as to what he witnessed. This evidence was material in two separate respects. First, his observations and perceptions of the event, and his responses, formed the basis for his claim. Secondly and indirectly, his claim turned on what he told the medical experts as to his observations, perceptions and responses. What the plaintiff told the medical experts was critical to the weight to be given to, and even the relevance of, their opinions. As explained by the President, the factual circumstances witnessed by the plaintiff, as established by the evidence at trial, differed in highly significant respects from the accounts he gave to various medical practitioners.
5. The other aspect of the evidence to be noted was the absence of any cross-examination of the medical practitioners. Their reports were tendered without objection. In fact there was a substantial degree of agreement in their opinions as to the appellant's psychological conditions. In that situation, the expert evidence relied on by the appellant was of no immediate significance. The medical evidence called by the plaintiff, however, fell into a different category.

Chronology of accounts to medical practitioners

1. Unhelpfully, neither party provided a proper chronology of the events: nevertheless, the chronology was important. First, the medical records from the general medical practice which he regularly attended at that time demonstrated that he had, for more than a year before the incident, suffered from anxiety and depression and was on an antidepressant.
2. Secondly, there was undisputed evidence that the applicant was distressed and emotional on the day of the incident. He saw his general practitioner, Dr Harender Saroha, on the day after the incident and recounted that he had "witnessed an accident yesterday in the car park [of an old man] getting crushed by a truck". That account , at least as recorded in the notes taken by the doctor, included embellishments. He was prescribed a "low dose of diazepam" (Valium). However, he was not referred to a psychiatrist whom he attended until May 2021.
3. Thirdly, he gave evidence that, approximately two to four weeks after the incident, he viewed some of the CCTV footage on a screen in the manager's office at the shopping centre when about to start a shift; [1] this could have been a time at which he saw "crushed body parts" and other details recounted to later practitioners as having been observed on the day. But no further details were recorded on subsequent visits to Dr Saroha on 9 and 30 November and 22 December 2020. On the last date, he was taken off diazepam. On none of those occasions do the doctor's notes record any relevant stressor. However, on 30 November 2020 Dr Saroha gave him a referral to a psychologist, although there was no evidence he took this up. Although viewing the CCTV footage may have provided him with a source for the visual images and perceptions he later described, that is a matter of speculation.
4. Fourthly, there followed a series of consultations with Dr Saroha. On 22 January 2021 Dr Saroha recorded that he was "working long hours - still without a break - new person at work is starting soon - manager who has been troubling him has been sacked - in stable relationship but it is affecting it". (This suggests work conditions were affecting the domestic relationship.)
5. On 1 March 2021 he saw Dr Saroha again, the doctor recording the reason for contact as "anxiety/depression - separated from his wife - living in same house - sounds low in mood". Similar symptoms were recorded on 11 March 2021 and on 24 March 2021, although on the last occasion, the doctor noted that he "works 7 days 12 hours shifts - his mum passed away when he was 11 years old and considers his landlady as his mum". Lower back pains were also recorded as a result of "lifting at work".

Duty of care

1. Before identifying the legal principles relevant to establishing a duty of care, the indirect nature of the claims made in this proceeding should be identified. Neither Lederer nor Hurex was responsible for the death of the pedestrian. If there were negligence, which there may well have been, in the occurrence of the accident, it was the negligence of the driver of the truck who was directly responsible for the accident with likely contributory negligence on the part of the deceased. The plaintiff did not sue the driver although, according to standard principles, any harm caused by the accident, including psychological injury to a bystander, might have been expected to fall within the scope of the duty of care owed by the truck driver.
2. However, in that case, recovery would probably have been precluded by the operation of s 30 of the Civil Liability Act 2002 (NSW). That provision applies to a claim for "pure mental harm", that is mental harm which is not consequential upon personal injury of another kind: s 27. In such a case, liability may arise where the plaintiff is a close member of the family of the victim, or where the plaintiff "witnessed, at the scene, the victim being killed, injured or put in peril": s 30(2). That limitation on liability only applies where the mental harm arises "wholly or partly from mental or nervous shock" and where it is the act of the defendant which results in death, injury or being put in peril.
3. There is no necessary incoherence between such a constraint on recovery by a plaintiff where the defendant is directly responsible for the death of the victim (for example) and the ability of the plaintiff to recover from an employer who puts the plaintiff in circumstances of the kind which arose in the present case. That is because the nature of the duty in each case is significantly different. However, there is some element of anomaly, which might have been demonstrated had either Lederer or Hurex cross-claimed against the truck driver for contribution. For present purposes, all that can and need be said is that the provisions of the Civil Liability Act with respect to claims for mental harm must be construed with close attention to the language of the provisions, as well as any apparent underlying policy or principle arising from contextual matters. However, as will be seen, the language of s 30 is reflected in parts of s 32.

Reasonable precautions

1. In my view, apart from the lack of evidence about causation, this case may be determined on the basis that no breach of duty can arise unless a reasonable person in the position of each of the defendants would have taken precautions sufficient to prevent the exposure of the plaintiff to the risk of harm.
2. As far as Lederer was concerned, it was dealing with an emergency. Accidents, even fatal accidents, occur from time to time and can occur anywhere. An employee of the shopping centre directing traffic or acting as a gate operator may witness a fatal accident of precisely the kind which occurred in this case. That person's employer would not usually be responsible for not taking precautions against such an eventuality.
3. In the present case, the accident was not witnessed by the plaintiff, and possibly not by Mr Brydon, who at least saw an earlier stage of the aftermath than did the plaintiff. Ms Necovski as the agent of the centre operator, Lederer, was required in the course of her duties to deal, amongst other things, with Mr Brydon's distress. She gave evidence that there was no other administrative assistance present before 9am or after 3pm. [2] She said there were no security staff working at 10.30am on 26 October 2020. [3] In cross-examination, Ms Necovski agreed that the situation was "confronting" and that she believed that the plaintiff was distressed by the events of the morning, even though he said he was "okay". There was no suggestion made to Ms Necovski that she should have done things differently, nor that there were other resources available to her to deal with the totally unexpected events. The plaintiff's case was merely that she should not have allowed him to be exposed to the aftermath of the accident.
4. In the circumstances, and on her evidence which was accepted, all she asked him to do was to support Mr Brydon and remove him from the scene. To suggest that she was in breach of her duty of care in asking any other member of staff to be involved was not a reasonable proposition. Had the mutilated body still been exposed, a different view might have been formed. But that was not the case when the plaintiff attended some 40 minutes after the accident occurred, after the paramedics had placed a sheet over the deceased's body and whilst other steps were being taken to shield members of the public from the scene.

Endnotes

1. DC Tcpt, 27 February 2024, p 49(45)-50(22).
2. DC Tcpt, 1 March 2024, p 3(35)-(45).
3. DC Tcpt, p 11(48). 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: 18 December 2024