18 FOSTER AJA: This is an appeal from a decision of Delaney DCJ given in the District Court of New South Wales at Campbelltown on 30 January 2002. The respondent, Geoffrey Thomas Millsom ("Mr Millsom") had sued the appellant, Pioneer Construction Materials Pty Limited ("Pioneer Construction") claiming damages for negligence in respect of its employment of him in the years 1988 to 1998. His allegation was that Pioneer Construction had breached its duty of care to him by exposing him to the foreseeable risk of psychological harm in the course of his employment and by not taking reasonable steps to obviate or significantly reduce that risk.
19 Mr Millsom was, at first, employed as a truck driver and later as a driver trainer. He finally undertook further duties which, it appears, involved him in becoming a member of the company's staff. Those duties required that he investigate and report on accidents in which the company's vehicles and drivers were involved. He was on twenty-four hour call and was required to attend accident scenes at all times of the day and night. The evidence shows that between 1994 and 1998 he investigated sixty accidents, five of them involving fatalities and twenty involving serious or near fatal accidents. A number of these accidents involved injury to drivers whom he had trained and knew well. A number of the scenes that he witnessed at accident sites were of a horrifying kind.
20 He claimed that he had been reluctant to perform these duties but had been told that, in effect, they went with the job and that he was required to perform them. He claimed that this aspect of his employment caused him significant psychological harm in that he suffered from a psychiatric condition described as post-traumatic stress disorder or an adjustment disorder with anxiety and depressive features. His Honour accepted that he suffered form a serious and on-going psychiatric condition, resulting from his exposure to these highly stressful aspects of his employment. The condition significantly affected his ordinary enjoyment of life, caused him emotional distress and also economic loss. His Honour accepted Mr Millsom's evidence and that of his medical witnesses, with the result that these findings have not been attacked; nor has the quantum of his Honour's award of damages.
21 It is submitted by the appellant, however, that his Honour's judgment should be set aside and judgment in its favour be substituted. It does so, on the basis that this Court should uphold the following ground of appeal:-
"There was no evidence upon which his Honour could find, or alternatively his Honour was wrong to find, that a failure to provide counselling and debriefing more likely than not caused the psychological injury in the plaintiff."
22 This ground of appeal has been added, by leave. All previous grounds of appeal have been abandoned. The ground specifically addresses what is frequently referred to as the "preventability" issue. It was an essential part of Mr Millsom's case that he had received no counselling or debriefing, after exposure to the trauma occasioned by attendance at the accident scenes. It was asserted that, in fullfilment of the appellant's duty of care to him as his employer, such counselling should have been provided and would have been effective in obviating or significantly reducing the risk of psychological injury.
23 The evidence on this issue was certainly very limited. Mr Millsom said that counselling was provided to the drivers employed by Pioneer Construction. It may reasonably be assumed, although it was not directly stated in evidence, that this counselling would have related to their involvement in accidents. Mr Millsom said that, although counselling was provided to the drivers, it was not provided to him as a member of staff. He was a person of outwardly stoical disposition and, even though experiencing emotional distress in relation to his attendance at accident scenes, did not overtly display it. He did, however, complain to his supervisor that counselling was provided to the drivers and not to him. This complaint was not made formally, but in the course of conversation.
24 Mr Millsom's medical evidence was accepted by his Honour. It established that Mr Millsom's exposure to the traumatic accident scenes accounted for his development of psychiatric problems. It also addressed the question of on-going treatment for those problems and the cost of such treatment. It did not directly address the question of post-accident counselling, its nature, or its efficacy, in preventing the development of psychiatric illness. Dr McClure, a psychiatrist, in his report of 6 March 2002 said:-
"Mr Millsom would undoubtedly benefit from continuing, expert treatment. I recommend that he have fortnightly sessions with either a clinical psychologist or a consultant psychiatrist. The treatment of choice for his condition is prolonged exposure. I estimate the cost per session (depending on the qualifications and experience of the clinician) as between $150.00 and $200.00. Some of the sessions may need to be prolonged, at increased cost to your client.
If intensive outpatient management fails to lead to improvement, than Mr Millsom may need a referral to live-in 'PTSD programme' of approximately 4 weeks duration at a private psychiatric hospital, such as the "St John of God' hospital at North Richmond."
25 This opinion does not deal with counselling given at the time of exposure to trauma, but deals with the subsequent treatment of a psychiatric condition through consultations. His Honour accepted this evidence.
26 Pioneer Construction introduced into evidence two reports of Dr Lovell, psychiatrist, of 11 October 2000 and 26 March 2001. These dealt, largely, with the question of whether Mr Millsom had suffered a psychiatric condition as a result of his work, the doctor favouring the view that this was not so. His Honour, as I have said, accepted the views of Mr Millsom's medical witnesses in this regard in preference to those of Dr Lovell. However, Dr Lovell's first report answers a specific question in the following way:-
"If you consider that the worker has suffered or is currently suffering from a recognised psychiatric or psychological condition as a result of his employment, is it possible to differentiate between the extent to which the condition has been contributed to or caused by his experiences in investigating accidents as opposed to the alleged failure by the employer to provide adequate grief counselling or other counselling, assistance or training.
Generally speaking, in the genesis of a Post Traumatic Stress Disorder debriefing has not been found to be helpful and has little if any impact on outcome. The major factor is an individuals personality style and how their experience is integrated. Mr. Millsom is very rigid and obsessional and has some difficulties dealing with his own perceived contribution to the accidents. It is unlikely as such that the provision of any counselling would have made any great difference to his current condition.
27 When this material was referred to his Honour in the final address of counsel for the appellant, his Honour described it as "nonsense".
28 It appears that, in conjunction with the tendering of Dr Lovell's reports, a journal article, from the Australian and New Zealand Journal of Psychiatry 2000 was also tendered. It was entitled "Psychological Debriefing: Controversy and Challenge", the author being Martin Deahl, a senior lecturer in psychological medicine. It does not appear that any reference was made to this article in the conduct of the case before his Honour, although this Court has been taken to certain portions of it. It is clear that his Honour would have had it before him as part of the evidence in the case. However, he has made no reference to it in his judgment. For my part, in approaching this appeal, I think it best to ignore it, on the basis that it does not appear to have been relied upon at first instance, by either side. In those circumstances, his Honour could reasonably have disregarded it.
29 His Honour, in finding for the respondent, made the following statements in his judgment:-
"(4) The defendant denied breach of duty of care. The plaintiff's case put simply was that the defendant should have foreseen that asking the plaintiff to attend accidents where there were likely to be drivers injured and scenes of death without providing training for the job and counselling services was likely to cause psychological injury and that the risk thereof came home. The plaintiff also alleged that as the defendant had done for drivers in its employ, the defendant could have avoided the risk by providing appropriate debriefing sessions and counselling services for employees performing tasks similar to that of the plaintiff. This action was a simple response to the risk, something which was well known, cost effective and already in place in some parts of the defendant's business. It was an appropriate alternative to merely leaving the plaintiff to his own devices as his employers in fact did.
…….
(6) Mr Coleman gave evidence about the plaintiff's employment. Mr Coleman said that if the plaintiff had said to him that he did not want to do the work of an investigator then there were disciplinary procedure guidelines. I find that this evidence supported the contention that the plaintiff more likely than not would have had difficulty keeping his job if he had complained about working as an accident investigator. I find that the plaintiff was faced with no alternative than to continue this job. Being the proud man that he is, he would not have considered admitting that he had a problem if it would mean losing his job. I find that a failure to provide counselling and debriefing more likely than not caused a psychological injury which developed.
……
(9) The test, as far as the defendant is concerned, is not what it knew but what it should have foreseen. Commonsense and the experience of other employees of the defendant show that the risk was foreseeable. The response to the risk was arranging the provision of counselling for the plaintiff. This the defendant did not do."
30 It may be noted that the appellant's original notice of appeal specifically did "not challenge his Honour's findings on causation or quantum", but challenged the finding of "foreseeability on the part of the Appellant on no legal ground other than, as his Honour recorded, 'common sense and the experience of other employees' - where the other employees referred to were solely the drivers of the vehicles involved in such accidents." Also, in its original submissions in the appeal, it was specifically stated:-
"The appellant does not challenge the diagnosis of injury, the finding that the injury arose from events in its employment of the respondent, nor the assessment of damages for loss. It challenges only the finding that such injury was foreseeable on its part as employer of the respondent, and thus the finding of liability against it."
31 In the alternative, a finding of contributory negligence was sought. The basis of that claim was a failure on the part of Mr Millsom to seek and obtain appropriate counselling.
32 As I have indicated, these grounds and submissions have been abandoned, the substituted ground being the only ground relied upon. The first part of this ground, as appears, asserts that there was no evidence to base his Honour's finding that failure to provide counselling and debriefing to Mr Millsom more likely than not caused the psychological injury. The second aspect of this ground is the assertion that, in the alternative, his Honour erred, on the evidence, in making that finding. It is convenient to consider these contentions in the order in which they are made.
33 The respondent's answer to the "no evidence" submission is twofold. First, it is asserted that his Honour did have sufficient evidence to ground the finding. Secondly, if that be not so, then, as a result of the conduct of the case in the Court below, the appellant should be taken to have conceded that this finding should be made.
34 I have outlined above the evidence before his Honour on the issue of "preventability". Additionally, as appears from the transcript of argument and addresses, his Honour was aware that public organisations such as the New South Wales Police Service and the New South Wales Fire Brigade had in place counselling services, for the benefit of their personnel. I do not think that, in the circumstances, his Honour needed specific evidence of these matters. They were in the area of common knowledge. He was also aware that the appellant was a large industrial organisation and that it, too, had a counselling service. This was stated to be so by Mr Millsom and was not denied by the witnesses called on behalf of the appellant.
35 His Honour was, of course, entitled to apply common sense. If authority were needed for this proposition, it was to hand in the case of State of New South Wales v Seedsman (2000 NSWCA 119), to which reference was made in argument, although not in his Honour's judgment. In paragraph 32 of Spigleman CJ's judgment in Seedsman, the following is stated:-
"It is not correct to say that evidence is required in all such cases. In making a decision on foreseeability, evidence of surveys or expert evidence is not always required. Commonsense has a role to play in this, as in other areas of judicial decisionmaking."
36 In the same way as common sense can be applied in determining foreseeability of injury resulting from negligent acts or omissions, it can, in my opinion, be used to make a determination as to the efficacy of measures put in place for a particular purpose.
37 In the present case his Honour could consider, as a matter of common sense, that a large organisation such as the appellant, like other large organisations, would not put in place and maintain a counselling service unless it provided a useful function. He could clearly infer, because the evidence indicated that it was available for drivers, that it was used to ameliorate the effects upon them of involvement in accidents. He also had the evidence, to which reference has already been made, that Mr Millsom had complained informally to his supervisor of the absence of counselling services to the staff as opposed to the drivers. The words he used were to the effect that it was "a shame" that such services were not available also to staff members. No evidence was called on behalf of the appellant to deny or vary this conversation. It may be noted that Mr Millsom received no response to the effect that he should not concern himself because the services were ineffective or a waste of time. Nor was direct evidence to this effect given in the case on behalf of the appellant. His Honour, therefore, had material from which, in the circumstances, the inference could properly be drawn that there was in existence in the appellant's organisation a counselling service effective in relation to accident caused trauma, which, although it was available to the drivers, was not available to Mr Millsom.
38 In my view, also, as a matter of common sense, it was open to his Honour to be satisfied that a counselling service which was efficacious in relation to drivers would also have been efficacious in relation to someone in the position of Mr Millsom. I am satisfied that no sensible distinction can be made, prima facie, between the position of a person involved in a horrifying accident as a driver and someone called upon to witness the immediate effects of the accident. Indeed, in this appeal, it is accepted that Mr Millsom incurred on-going psychological harm as a result of witnessing such things on a fairly regular basis. His Honour's finding to that effect are unchallenged. In my view, if a distinction were to be made between the impact of such events on the drivers and its impact on the accident investigator, then, in the circumstances of this case, the onus lay upon the appellant. No such evidence was called. In the result, it was open to his Honour to find that a system that was efficacious for the drivers would also have been efficacious for Mr Millsom.
39 Also, his Honour was entitled to have some regard to the medical evidence to which I have made reference. He preferred the medical evidence called for Mr Millsom to that called on behalf of the appellant. He was entitled to do so. This evidence provided, in my view, some basis for finding counselling procedures efficacious. Long time consultations with a psychiatrist or clinical psychologist were said to be advisable in order to assist Mr Millsom in dealing with his psychiatric symptoms. The inference was open that, had such assistance been made available by the appellant at a time close to the traumatic events which led to Mr Millsom's psychiatric condition, then it also would have been efficacious if, indeed, not more efficacious.
40 The appellant has made a number of submissions as to deficiencies in the evidence on the preventability issue. It was submitted that this was an area in which expert evidence was required. Only expert evidence could be capable of satisfying the judge that Mr Millsom would have benefited from counselling provided by the appellant. It was pointed out that there was no evidence as to the nature of the counselling provided or as to its suitability for a person such as Mr Millsom. It was further said that there was no evidence that he would have benefited from such counselling, with the result that the risk of his succumbing to psychiatric illness would have been obviated or significantly lessened. Equally, as is apparent, there was no evidence, that his Honour accepted, that these benefits would not have occurred.
41 In the result, although the evidence bearing on this issue could obviously have been a great deal stronger, I am not persuaded that it was deficient to the point where it must be held that there was, in fact, no evidence capable of supporting his Honour's finding in favour of the respondent.
42 In my view, this ground of appeal fails.
43 If I be wrong in this, I have come to the conclusion that the ground should also fail, on the basis that it reasonably appears that it was the subject of concession at the hearing below. It does not appear that there was any cross-examination of Mr Millsom or his witnesses to suggest that he would not have benefited from counselling. His evidence was that it was "a shame" that he did not have it. The witnesses of the appellant, who occupied senior positions in the organisation, gave no evidence to the effect that the counselling services either did not exist or would not have been appropriate for Mr Millsom. Allegations of contributory negligence were based upon Mr Millsom's failure to obtain such services himself. He was cross-examined on this subject. Although the defence of contributory negligence was alternative to the defence that there was no breach of the employer's duty of care, in failing to provide the counselling services to Mr Millsom, there was, nevertheless, no positive evidence in the appellant's case on liability that such services would have had no utility. In these circumstances, the allegations in the cross-claim, and in cross-examination, could support the view that no issue was being raised by the appellant as to the efficacy of counselling for Mr Millsom.
44 Moreover, a consideration of the transcript of addresses satisfies me that no case was sought to be made that counselling would have had no utility for Mr Millsom, in the context that this was a live issue on the question of liability. The only reference to the evidence of Dr Lovell, which has been set out above, was in the context of damages, going, apparently, to the efficacy and on-going cost of treatment. In any event, his Honour described, in discussion, the evidence as being "nonsense". Had this evidence gone to a vital issue on liability, one would have expected that counsel would not have, as apparently occurred, acquiesced, for practical purposes, in his Honour's description. I have already indicated that in the original grounds of appeal and submissions, there is no reference to this point. This adds at least some weight to a view that, in the run of the case below, there was a concession.
45 Not without some hesitation, I have come to the opinion that the first ground of appeal should be rejected, for this reason as well.
46 The second ground, that his Honour erred in fact, in finding for Mr Millsom on this aspect of causation may be disposed of shortly. Even if the point was not conceded, it was, for practical purposes, a non-issue. In the area of liability no argument on the preventability issue was put to his Honour. He had sufficient evidence to base a finding favourable to Mr Millsom. He was entitled to make the finding. In my view, this Court should not interfere with it.
47 Accordingly, I propose that the appeal be dismissed with costs.