Pioneer Construction Material Pty Ltd v Geoffrey Thomas Millsom

COUNSEL : Mr J Maconachie QC with J. Burn - Appellant Dr A. Morrison SC with J. Henness - Respondent SOLICITORS : P.W. Turk & Associates - Appellant Caldwell Martin & Cox - Respondent CATCHWORDS : Damages for negligence in respect of employment - any evidence that the appellant's failure or omission to provide counselling for the worker or materially contributed to his psychological injury. State of New South Wales v Seedsman (2000 NSWCA 119) Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, 87 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 684, 694 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 725 CASES CITED: Hampton Court Limited v Crooks (1957) 97 CLR 367 Banbury v Bank of Montreal [1918] AC 626 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 O'Brien v Komesaroff (1982) 150 CLR 310 Chappel v Hart (1998) 195 CLR 323 Coulton v Holcombe (1986) 162 CLR 1 Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR DECISION : 1. Leave to the appellant to amend its notice of appeal as sought; 2. Appeal allowed with costs; 3. Judgment of the plaintiff in the District Court for $114,131.05 and costs set aside; 4. In lieu thereof judgment entered for the defendant with costs; 5. Respondent to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40106/02 DC 46/00 HANDLEY JA FOSTER AJA McCLELLAN J

WEDNESDAY, 28 AUGUST, 2002 PIONEER CONSTRUCTION MATERIALS PTY LIMITED v MILLSOM

Judgment 1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Foster AJA and McClellan J in draft form. The facts and the history of the proceedings have already been summarised by Foster AJA. The issues for this Court are whether there was any evidence that the appellant's "failure" or omission to provide counselling for the worker caused or materially contributed to his psychological injury, and whether, in the light of the conduct of the trial, that question is open to the appellant in this appeal at all. 2 The worker's claim did not involve the question whether some act or event had brought about or materially contributed to some other act or event or some condition. The enquiry concerns an omission, the lack of appropriate counselling. The question was not whether this omission actually caused or materially contributed to the worker's psychological injury because clearly it did not. This was caused by his exposure to psychologically distressing situations in the course of his work. The question is whether, given his exposure to such situations, the omission to provide counselling caused or materially contributed to that injury because its availability and use would more probably than not have prevented or diminished that injury. 3 No evidence on that issue was led in the worker's case. Judges may be permitted to know that counselling is currently provided by some employers, and the evidence established that it was provided by this employer for its drivers. If this employer had called no evidence on causation it might have been taken to concede that issue. An inference might also have been available that the employer provided counselling for its drivers because it believed it was efficacious. See Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679, 688-9. 4 The situation changed when the employer tendered the report of Dr Derek Lovell of 13 October 2000, to show that the efficacy of counselling in preventing or minimising psychological injury had not been established. Once this report was served on the worker's solicitors, over 7 months before the trial, the plaintiff and his legal advisers were on notice that causation would be an issue at the trial. 5 The worker's case at trial was based solely on the employer's failure to provide counselling, as was the Judge's findings on breach of duty. He said: "I find that a failure to provide counselling and debriefing more likely than not caused a psychological injury which developed … 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 employers of the defendant show that the risk [of psychological injury] was foreseeable. The response to the risk was arranging the provision of counselling for the plaintiff. This the defendant did not do. … The plaintiff could not provide his own counselling. This was the job of the defendant as his employer. The defendant was negligent. Its breach of duty caused the psychological injury…". 6 There was expert evidence which, if accepted, established that the provision of counselling would probably have made no difference. No expert evidence to the contrary was tendered in the worker's case and Dr Lovell was not required for cross-examination. 7 The trial Judge evidently took the view that the expert report relied upon by Dr Lovell was "nonsense", and he might possibly have been entitled to reject it. However rejection of evidence, in itself and without more, does not provide positive evidence to the opposite effect. See Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, 87, Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 684, 694. 8 A tribunal of fact can, in some circumstances, rely upon common knowledge and commonsense. Murphy J said in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 725 (Tubemakers): "If it is common knowledge that a relationship of cause and effect may exist between certain facts or events, a tribunal of fact does not need expert evidence to enable it to find this relationship in a particular case [authorities omitted]. An observed sequence of events may therefore lead without expert evidence to a rebuttable presumption of fact, even on medical or other scientific subjects. Although the expressions 'common experience' or 'common knowledge' are often used, they are intended to embrace or to be used as part of what Rich ACJ referred to in [Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538, 563] (Forst) as a course of reasoning which combines commonsense with application of logic to the facts. Where common knowledge and this course of reasoning do not enable the tribunal to find the relationship, expert evidence is necessary". 9 An observed sequence of events may, as in that case, provide some evidence of causation, but as a general rule this is only true where the first event is of a positive nature. The same process of reasoning can seldom apply to an omission in the absence of common knowledge that a particular act will be efficacious and its omission risky, such as a failure of a diabetic to take insulin at the appropriate time. 10 I do not see how it can be said that the relationship between the absence of counselling, following trauma, and psychological injury is a matter of common knowledge at the present time. Nor, with respect, can I accept that the existence of such a causal relationship is a matter of commonsense. In Tubemakers Mason J, whose judgment commanded the assent of Barwick CJ and Gibbs J, said at 724: "Earlier in Forst (1940) 64 CLR 538, in a dissenting judgment, Dixon J had said at 569 'I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis'. These observations elaborate with varying degrees of emphasis the general onus which lies upon the plaintiff on an issue of causation where the issue lies outside the realm of common knowledge and experience and falls to be determined by reference to expert medical evidence". 11 As I have said, the efficacy of counselling to prevent or diminish psychological injury cannot, in my judgment, be said at the present time to be a matter of common knowledge and experience, let alone commonsense, particularly once the report of Dr Lovell with the attached paper by Martin Deahl had been admitted into evidence. Martin Deahl was a Consultant and Senior Lecturer in Psychological Medicine at St Bartholomew's, Royal London College of Medicine and Dentistry, Queen Mary and Westfield College, and the University of London. The paper had been published in the "Australian and New Zealand Journal of Psychiatry", a recognised peer review journal. The existence of this paper, and its adoption by Dr Lovell, in my judgment brought the case squarely within the statement of principle by Dixon J in Forst quoted above. 12 In my judgment therefore there was no evidence on which the trial Judge could base his finding that a causal relationship existed between the employer's failure to provide counselling and the worker's psychological injury. 13 McClellan J in his reasons has reviewed the conduct of the trial by counsel for the employer. I agree with his conclusion that causation was an issue at the trial, and that counsel for the employer did submit that a finding of causation should not be made. However it does appear that he did not submit that there was no evidence to support a positive finding. 14 A submission that there is no evidence to support a finding in favour of the party who bears the onus on some issue can always be made for the first time on appeal unless the party attempting to take the point is estopped from doing so. Although the point may be taken for the first time it is never a "new point" because at the end of a trial the plaintiff should fail unless there is some evidence on every issue on which he bears the onus. If there is no evidence on one or more of those issues the plaintiff has failed, as a matter of law, to make out his case. 15 It is therefore established law that an unsuccessful defendant may take a no evidence point on appeal for the first time. See Hampton Court Limited v Crooks (1957) 97 CLR 367 and Banbury v Bank of Montreal [1918] AC 626. The principles applied in Suttor v Gundowda Pty Limited (1950) 81 CLR 418 and O'Brien v Komesaroff (1982) 150 CLR 310 and later cases, that a new point of law may not be taken on appeal for the first time if it could have been answered by evidence at the trial, does not apply to no evidence points of the nature now being considered. In the Suttor v Gundowda Pty Limited line of cases there must be some evidence to support the new point, otherwise it could not be taken at all. On the other hand the basis of the Hampton Court Limited v Crooks principle is that there is no evidence to support a finding which is fundamental to the judgment under appeal. 16 I agree, for the reasons given by McClellan J, that the decision in State of New South Wales v Seedsman [2000] NSWCA 119 does not assist this respondent. 17 In my judgment therefore the following orders should be made: (1) Leave to the appellant to amend its notice of appeal as sought.

(3) Judgment of the plaintiff in the District Court for $114,131.05 and costs set aside.

(4) In lieu thereof judgment entered for the defendant with costs.

(5) Respondent to have a certificate under the Suitors Fund Act.

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.

48 McCLELLAN J: I have the benefit of reading the reasons for judgment of Handley JA and Foster AJA in draft form. I gratefully adopt the account by Foster AJA of the relevant facts. 49 The appellant seeks leave to amend its Notice of Appeal and rely on only one ground. It is as follows: "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."

The course of the trial 50 At the trial the respondent pleaded that his injuries were caused by the appellant's failure "to take reasonable care not to expose (the respondent) to unnecessary risk of injury." Particulars of "breaches of duty and/or negligence" included "failing to provide the plaintiff with any or any adequate grief counselling or counselling generally or assistance." 51 The appellant denied every allegation of negligence. 52 The transcript of the trial reveals little by way of opening by counsel for the respondent. The respondent's medical reports were tendered and after a brief discussion the trial judge said, referring to the possible length of the trial, "Well it is up to you, you are the one who is leading the evidence. You know what you have to prove." 53 Evidence was given by the respondent in which he related the traumatic events which he experienced and their effect upon him. He also related conversations he had with Rick Weir who was the respondent's supervisor. He was asked about a conversation in the lunch room: "Q. What did (you) say to Rick Weir? A. It's a shame we couldn't get some counselling. Q. And what did he say to you? A. None of us have had counselling." 54 When cross-examined he was asked: "Q. And you have acknowledged to his Honour that you never asked the company for counselling? A. That's right. Q. You never complained to the company or to any other person as to how it was affecting you? A. Nope. Q. You went along, troubled yourself but without letting the company know that you were troubled? A. True Q. That's correct isn't it? A. Yep Q. You have said that on two occasions you made the point that while driver's had counselling after accidents other staff didn't? A. That's true." 55 The respondent tendered evidence which indicated that counselling was made available to the appellant's truck drivers. However, he did not call evidence to suggest that it would have been of any assistance to him in avoiding either the onset or diminishing the symptoms of his psychological injury. 56 The appellant did tender evidence on this issue. The evidence was contained in the report of Dr Lovell, a consultant forensic psychiatrist. He was not cross-examined. His report was, of course, available to the respondent before the trial and could have been the subject of a response from a qualified person. It was not. 57 Dr Lovell considered whether, in his opinion, counselling would have been of any assistance to the respondent. He was asked a number of specific questions, one of which was: "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." 58 Dr Lovell responded: "Generally speaking, in the geneses 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 individual's personality style and how their experience is integrated. Mr Millsom is very rigid and obsessional and has some difficulty 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." 59 Dr Lovell attached an article to his report by Martin Deahl. The article, which was published in the Australian and New Zealand Journal of Psychiatry 2000, had the title "Psychological debriefing: controversy and challenge". 60 The article expresses a number of conclusions some of which are as follows: · Although intuitively appealing and a response to perceived need, demonstrating the effectiveness of early intervention has been extremely difficult. · Debriefing aims to prevent the normal stress response becoming abnormal, it is primarily educational and instructive in content rather than a psycho-therapeutic process. · Irrespective of whether or not debriefing reduces long-term morbidity many individuals find it subjectively helpful at the time. · There are numerous anecdotal reports suggesting that providing debriefing for everyone involved in a traumatic experience reduces psychological morbidity. The acceptance of such claims has led to the widespread use of debriefing following traumatic events. Indeed, it is now used routinely in Scandinavia and in a number of commercial organisations following traumatic events such as bank robberies. A single, stand alone intervention is clearly popular with employers anxious to discharge their "duty of care" as inexpensively as possible. Unfortunately, at present there is little other than anecdotal evidence to demonstrate the effectiveness of debriefing and the vast majority of published data suffers from various methodological difficulties. · A study by McFarlane followed up 469 firefighters involved in a series of Australian bushfires. Although not the main focus of the paper, he found that those who received psychological debriefing ("PD") shortly after the incident were less likely to develop an acute posttraumatic stress reaction than those who were not debriefed. However, the effectiveness of the debriefing process was thrown into doubt by his finding that individuals who developed a delayed onset posttraumatic stress reaction were more likely to have attended a debriefing than those who had suffered no psychological disorder at any time during the follow-up period. This led McFarlane to comment that psychological debriefing may have immediate protective value, but has little effect in the longer term. · Whether or not acute preventative interventions such as debriefing reduce the incidence of long-term psychological morbidity following trauma remains uncertain. The data available from mostly methodologically flawed studies suggests that, at best, PD affords some sense of hope and understanding and, at worst, makes no difference and may even make some individuals worse. Certainly individuals receiving PD are not immune to developing long-term psychological sequelae. Therefore, regardless of whether PD is employed following traumatic events, formal follow up to identify individuals who do go on to develop serious psychopathology is vital.

Submissions at the trial 61 The submissions of counsel for the parties were recorded and are contained in a transcript which, although not an official transcript, is accepted by both parties as accurate. Counsel for the appellant was the first to address. 62 At the trial, the judge made plain that he believed the respondent and, in particular, believed his complaint to be genuine. 63 Counsel then turned to the question which he described as the "breach of duty on the part of his employer which brought this about." There was a discussion about whether the respondent had asked for counselling which ultimately brought the response from the trial judge. "He doesn't have to request the counselling, it's a question what the defendant should have foreseen… ." 64 As to that matter, counsel ultimately said: "The issue therefore would fall back on a finding that your Honour will be asked to make that Pioneer is in breach of duty because it didn't impose or supply counselling for accident investigations. Now, in our submission we say in answer to that first there is no legal duty to do so if your Honour was attracted to the proposition that there should be automatic counselling for any accident investigator that would mean … ." 65 His Honour responded "not quite" but then asks "What of Seedsman's case?" (a reference to the decision of this Court in State of New South Wales v Seedsman [2000] NSWCA 119). Counsel admits that he is unaware of Seedsman's case and his Honour says: "Well, that's a fairly important case … I suspect in the circumstances of this case as is the recent case of Nannow (sic Mannell v State of New South Wales [2001] NSWCA 327) … which I think may have some impact on the submissions you were just making to me …" 66 His Honour continued: "Irrespective of the fact that (the respondent) has not tendered any expert evidence … you were asking a man who had no qualifications and experience to go ahead and report on these accidents on a regular basis without providing him with any back up in relation to this sort of problem which could … I mean commonsense would say that this would be foreseeable… You wouldn't need expert evidence to say that it would be foreseeable that somebody who has to go and see people that they've trained, people that they have worked with and people that they have dealt with on a regular basis being killed, maimed and injured in accidents would have no affect on them… ." 67 Counsel sought to submit that if there was a principle to be discerned from Seedsman it could not be applied to the circumstances of the present case. He said: "If your Honour was so persuaded, that a construction firm running trucks has an obligation to counsel people who were not the drivers in the accident … they were being counselled apparently, but also the staff who do the investigation without any knowledge that the staff needed or asked for or show any indication that they are suffering from the lack of it is putting it far too high and we would say that your Honour should not drive the principle further than Seedsman's case and not apply it to this particular case." 68 As emerges from his Honour's judgment, it would appear that the trial judge was inclined to the view that there was a duty of care which included an obligation on the appellant to provide counselling to persons in the position of the respondent. Counsel did not refer his Honour to the evidence of Dr Lovell at this stage of his submissions. 69 Attention then turned to questions of damage. The discussion considered whether any breach of duty, in particular, whether the lack of counselling caused the respondent's injury. Having discussed the evidence of the respondent's doctors, counsel continues: "Dr Lovell who reported for the defendant in his first report dated 11 October 2000 says at the bottom of page 6 having first found that there was no post traumatic stress disorder says and I quote: 'Generally speaking in the geneses of a post traumatic stress disorder debriefing has not been found to be helpful and has little if any impact on outcome. The major factors on an individual's personality style and how their experience is integrated. Mr Millsom was very rigid and obsessional. He has some difficulty dealing with his own perceived contribution to the accidents. It is unlikely says the doctor as such that the provision of any counselling would have made any great difference to his current condition.' Now your Honour … Judge: … that has to be nonsense doesn't it Burn: Well … if it's a question I would say no, your Honour. This is an experienced doctor he's not talking about counselling in general in all types of conditions, he's say with Post Traumatic Stress Disorder debriefing usually isn't much help. There is as I understand it and your Honour will know better than I an element of reinforcement of the original trauma every time an individual goes to be analysed over it and of course the same doctor on page 7 says that the … in the second paragraph … he has anxiety symptoms which fall short of PTSD and then says 'I cannot however understand how his condition would worsen over time rather than improve.' In his second report, Dr Lovell says at the bottom of the first page that … third to last paragraph … he states, Dr McGlure has stated that Mr Millsom would not survive on the wages and began again to drive a small truck and Dr Lovell says this is inconsistent with Post Traumatic Stress Disorder. If Mr Millsom suffered from true Post Traumatic Stress Disorder there would be an avoidance of driving, given the experiences he alleges of attending scenes of carnage. He also on page 2, in the middle of the page, says in relation to Mr Millsom not being able to afford regular psychiatric treatment, 'I note that a Medicare rebate covers most of the psychiatrist's fees and the consultation gap would be about $20 which was ### of cost' and finally on page 3 the doctor says, Again, recording Mr Millsom's concern about being a driver points out he left the position he had as yards man to do a night drive from Regent's Park to Yass and the doctor says, 'this suggests that there is no avoidance which is common in Post Traumatic Stress Disorder.' Now we would submit that on balance your Honour would certainly feel confident that Mr Millsom has some sort of feelings of anger and aggression largely unexpressed perhaps towards Pioneer. It may be that anyone who is promoted and can't handle the job feels sour about it later, it may be that the fears that haunt him at the moment if your Honour finds they're there are fears that arise more from a feeling of regret and annoyance of having been lifted up and then dropped, but your Honour of course has to go a lot further than that and find that this was contributed to by a specific breach of duty." 70 In his final remarks, counsel says: "Its certainly a difficult evidentiary burden your Honour but we say generally as I've put, and I won't put it again that there's no breach of duty, secondly, there's no clear sequelae from the breach of duty, …" 71 Counsel for the respondent opened his submission by saying that he relied upon the decision in Seedsman. He was asked by the trial judge to identify the principle he relied upon from the decision and the following exchange occurred: "Counsel: Several your Honour. Firstly that if it is reasonably foreseeable that counselling or intervention if I can put it that way would minimise the risk then it should be done. Here is a case where counselling was provided for the drivers … Judge: but not for Mr Millsom. … Judge: So that they could foresee that counselling in a stressful situation would be a tool to remove the risk of injury of a psychiatric or psychological nature … Counsel: Yes precisely … Judge: They didn't do that so they breached their duty? Counsel Yes. 72 The matter was not discussed further and counsel turned his attention to matters of quantum. 73 From this analysis of the trial I conclude the following:

(a) although there was no issue that exposure to stressful situations may cause harm there was a significant issue as to the role, if any, which counselling might fulfil in relation to persons at risk. On this issue the appellant's counsel never conceded that the duty owed by his client to the respondent included an obligation to provide counselling.

(b) counsel for the appellant maintained throughout the trial and, relying on the evidence of Dr Lovell, submitted that the court could not be satisfied that the respondent's condition was contributed to by any failure of the appellant to provide counselling.

(c) counsel for the respondent was content to rely on the decision in Seedsman, together with the fact that counselling was provided for drivers, to establish that the appellant's duty to the respondent required the provision of counselling services.

(d) the respondent's submission assumed that a breach of this duty, by the failure to provide counselling services, caused the respondent's injury. There was no attempt to call evidence to rebut Dr Lovell's evidence and no submission was made on this aspect of the matter. Accordingly, there was no evidence from which it could be concluded that the failure to provide counselling caused or contributed to the respondent's psychological condition ( Chappel v Hart (1998) 195 CLR 232).

The trial judge's decision 74 In his judgment, the trial judge summarised the plaintiff's case in the following manner: "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." 75 From these remarks it is plain that an essential issue at the trial was whether: "The defendant could have avoided the risk (psychological injury to the plaintiff) by providing appropriate debriefing sessions and counselling services." 76 The trial judge formed a favourable impression of the respondent. His Honour concluded that although he did not want the job of investigating accidents, he felt he could not refuse it and, being of a stoical disposition, he neither told his supervisors how he was feeling, nor did he seek treatment or counselling. Without referring to any evidence, the trial judge recorded that: "I find that a failure to provide counselling and debriefing more likely than not caused a psychological injury which developed." 77 His Honour went on to say that: "There was general agreement that the plaintiff did sustain a psychological injury from his job but there was dispute about the continuation of it." 78 The trial judge summarised the appellant's case in these terms: "The defendant's case was that the plaintiff had caused his own injury by not alerting the defendant to the effect the attendance at the incidents were having upon his emotional state. However, the plaintiff said he didn't really understand what was happening to him until it was explained by Dr Glancey in 1999. The defendant's argument related not only to primary negligence but also to contributory negligence which was pleaded in the alternative in the Notice of Grounds of Defence the defendant had the onus on contributory negligence to prove what the plaintiff should have foreseen." The test, as far as the defendant is concerned, is not what it knew but what he 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." 79 The trial judge expressed his ultimate conclusion in the following manner: "There were a series of accidents which he attended … of which he spoke in evidence. This evidence demonstrated that fatal accidents badly affected him psychologically. He did not know what was to face him every time he went to an accident. He was on edge and distressed every time he received a phone call to go to an accident scene. The plaintiff could not provide his own counselling. This was the job of the defendant as his employer. The defendant was negligent. It's breach of duty caused the psychological injury and the plaintiff did not cause or contribute to the injury …" 80 His Honour's judgment makes no reference to any evidence from which it could be concluded that counselling would have made any difference to the onset or continuation of the respondent's condition. There was evidence that counselling services were available to truck drivers but there was no material from which it could be concluded that this resource, if made available to the respondent, would have been of any benefit. No doubt it is believed by those who provide such facilities that counselling is of utility to people engaged in stressful activity, and this may be the reason why the appellant provides it to truck drivers and why other organisations provide it to their employees or volunteers who have experienced difficult circumstances. However, whether counselling is of any benefit in avoiding the onset of a medical condition such as the plaintiff's was not the subject of evidence, except that of Dr Lovell. With every respect to those who have a different view I do not believe that this conclusion could be reached by the mere application of common sense. No doubt a prudent employer would do whatever it thought reasonable to assist its employees in carrying out their tasks and for this reason may provide counselling and other assistance in carrying out their duties. But whether it would have been of benefit to the respondent is a matter which, in my opinion, required affirmative evidence before a conclusion could be reached that the respondent's injury was caused by a failure to providing such counselling.

The decision in Seedsman 81 As I have indicated, the decision in Seedsman was central to the debate before the trial judge and essential to his Honour's ultimate decision. With respect, I do not believe the decision has been correctly understood or applied. 82 Seedsman involved consideration of the circumstances of a police officer in New South Wales who was diagnosed as suffering from Post Traumatic Stress Disorder. The finding of the trial judge in that case was that her condition was a result of her exposure during the course of her employment to crimes committed against children. A substantial issue, both at the trial and in the Court of Appeal, was whether her exposure to the many tragedies she observed could have resulted in her illness. The Court of Appeal found that the relevant link was present and indicated that this was not an issue which necessarily required expert evidence. Ordinary human experience would suggest that exposure to traumatic events may occasion psychiatric illness in some persons. However, although common sense may inform that question it is, of course, a different question whether the provision of counselling would have ameliorated the onset or continuation of the psychiatric illness. 83 The issues which were litigated in Seedsman appear from the judgment of Spigelman CJ. Those issues were foreseeability, causation, injury and general damages. However, the issues were considered in the context that there was evidence before the trial judge of the risk to which the plaintiff was subject and the means of avoiding such risks. The plaintiff gave evidence of a series of available preventive measures which the trial judge apparently accepted, for he concluded: "If there had been advice and counselling available for her to have dealt with the stress reaction at or shortly after exposure, it is more probable than not that the Post Traumatic Stress Disorder could have been avoided or its severity reduced." 84 I do not understand this finding to have been challenged in the appeal. The issue with respect to foreseeability was whether, accepting that stress was a foreseeable consequence of the plaintiff's duties, psychiatric disorder was also foreseeable. With respect to causation, the issue debated at both the trial and in the appeal was whether the other stressors apart from those at work to which the plaintiff had been exposed caused her illness. The other matters are identified by Spigelman CJ (para 85). The issue of causation, whether the failure to provide counselling caused the respondent's illness, was not an issue in Seedsman. In relation to this matter Spigelman CJ records: "The Respondent established causation to the satisfaction of his Honour. He found that there was the necessary link between the act or default of the Appellant and the damage suffered. Specifically, he found that the damage would not have occurred if the Appellant had taken the requisite steps." Para 83. 85 I doubt whether the issues litigated in Seedsman and the confined nature of the discussion with respect to foreseeability and causation were appreciated in the course of the present trial.

Is it open to the appellant to argue the point? 86 The respondent submitted that the issue of causation now sought to be advanced by the appellant, was not raised at the trial and the appellant should not be able to agitate it in the appeal. (see Coulton v Holcombe (1986) 162 CLR 1). 87 As I have indicated, in my view, the issue of causation was agitated in the evidence and addressed in the competing submissions of counsel. Although the appellant had tendered Dr Lovell's evidence and addressed upon it, the respondent was content to submit that the decision in Seedsman could be relied upon to establish both a duty to provide counselling services and that a failure to provide them caused the respondent's injury. 88 In my opinion, this was an error. In Seedsman, causation was established by evidence at the trial and the finding was not challenged in the appeal. The failure of the respondent to tender any evidence on that issue in his trial is, in my opinion, fatal to his case. 89 If contrary to my view the issue was not raised, the matter being one in respect of which no evidence was tendered by the respondent, an appellant is entitled to raise the matter in an appeal. In Hampton Court Ltd v Crooks (1957) 97 CLR 367, Dixon CJ identified the common law principle which, modified by statute, allowed the court in banc to enter a verdict for the defendant, when a request had not been made at the trial. His Honour added: "Of course if the Full Court is of the opinion that the plaintiff might have mended his hand at the trial, had the insufficiency of his evidence been pointed out on an application either for a verdict by direction or for a non-suit, doubtless that would affect the exercise of the power. But in a clear case where, on the state of evidence as the plaintiff necessarily left it, the defendant is entitled to a verdict, I do not see why a verdict in favour of a plaintiff who has not made out a cause of action should stand simply because at the trial the defendant went to the jury without asking for a direction. At worst it is a matter of costs." At p 372.

(See also the observations of McTiernan, Fullagher, Kitto and Taylor JJ at p 377). 90 The relevant principles were considered by McHugh J in Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 120 ALR 1 when he said: "A party does not make an admission about one of the issues in the other party's pleadings simply because he or she calls no evidence on, or makes no submission about, that issue. Thus, at common law, a defendant could allege before the court in banc that there was no evidence to support the plaintiff's case even though the point had not been taken at the trial. Failure to take the point at the trial was not seen as an admission or an abandonment of the issue. It was merely a factor, albeit an important one, in determining whether the court should allow the point to be taken after verdict." At p 10 91 To my mind, there may be a question as to the circumstances in which, although evidence on a critical issue was not tendered at the trial, this Court might, nevertheless decline to enter a verdict. However, it is unnecessary to consider that matter further in the present appeal.

Conclusion 92 Before the respondent could succeed in his case he had to establish both a relevant duty of care and satisfy the court that the appellant's failure to discharge that duty caused his injury. The duty relied upon was said to be to provide counselling for the respondent. In my opinion the evidence at the trial did not establish that a failure to provide counselling caused or contributed to the respondent's injury. I agree with the orders proposed by Handley JA. **********

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