Sdrolias v Allianz Australia Insurance Ltd

Court of Appeal (NSW)|2021-10-12|Before: Macfarlan JA, Meagher JA, McCallum JA, Fagan J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Ms Sdrolios, appealed from a decision of the NSWSC dismissing her claim for damages for psychiatric harm. Ms Sdrolias was performing duties as a traffic controller on a building site when she heard an electrical explosion and witnessed its aftermath. She claimed to have suffered post-traumatic stress disorder as a result of seeing and helping two men who suffered burns as a result of the explosion. Ms Sdrolias brought proceedings claiming damages against the head contractor on the site, Power Distribution Services Pty Ltd and a subcontractor, Superior Civil Pty Ltd (later replaced as defendant by Allianz Insurance Australia Ltd). The primary judge dismissed the claim. Ms Sdrolias appealed only from the judgment in favour of Superior Civil. The primary judge, Fagan J, accepted that the worker employed by Superior Civil engaged in negligent conduct within the scope of his employment. However, his Honour did not accept that the negligence was the cause of Ms Sdrolias' psychiatric symptoms. He made a damning assessment of Ms Sdrolias' credibility and did not accept her description of what she saw or the accuracy of the histories she provided to various medical practitioners. The principal issue raised by the appeal was whether the primary judge erred in failing to be satisfied as to Ms Sdrolias' account of the traumatic incident (grounds 1-4) and as to the accuracy of the histories she provided concerning the course of her symptoms (grounds 5-11). Held, dismissing the appeal with costs An appellate Court should not interfere with a primary judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences": at [10]-[12]. Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 127, [25]. As to grounds 1-4, per McCallum JA (Macfarlan and Meagher JJA agreeing): Although there are aspects of the primary judge's analysis of Ms Sdrolias' evidence concerning the explosion on which a less exacting approach could have been taken, the Court cannot go as far as to conclude that the primary judge was obliged to find Ms Sdrolias' evidence persuasive: at [25]. As to grounds 5-11, per McCallum JA (Macfarlan and Meagher JJA agreeing): It was open to the primary judge to make certain subordinate findings sought to be impugned by the appellant, and to reach the ultimate conclusion that causation was not established, having regard to his damning assessment of the appellant's. The impugned findings were not demonstrated to be wrong by incontrovertible facts or uncontested testimony, or glaringly improbable or contrary to compelling inferences: at [68]. Observations on the law's insistence that, for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: at [16]-[17]. Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[55]; Warner v Hung; Re Bellpac Pty Ltd (No 2) [2011] FCA 1123 at [48].

Judgment

MACFARLAN JA: I agree with McCallum JA.
MEAGHER JA: I agree with McCallum JA.
McCALLUM JA: On 30 October 2013, Evangellia Sdrolias was performing duties as a traffic controller on a building site at Eastern Creek when a labourer working in a pit nearby struck a live high-voltage electrical cable with a reciprocating saw causing an electrical explosion. Ms Sdrolias heard the explosion and saw its aftermath. There were two men in the pit when the explosion occurred. She said she turned to face the pit and saw one of the men walking towards her looking "dazed" and "zombie" like. He was burnt on his face, chest and hair. Ms Sdrolias said she could smell burning flesh. The other man was rolling around on the ground near the pit screaming. She said she could see "his burnt flesh all over his body from his head, to the top of his boots on his ankles".
Ms Sdrolias claimed to have suffered psychiatric harm (post-traumatic stress disorder) as a result of witnessing that event. She brought proceedings in the Supreme Court claiming damages from the head contractor on the site, Power Distribution Services Pty Ltd, and the subcontractor engaged to perform the cable works, Superior Civil Pty Ltd. The labourer who (undoubtedly negligently) used a reciprocating saw to cut an underground conduit to determine whether it was carrying live high-voltage electrical cables (as it was) was employed by Superior Civil. That company went into liquidation after the proceedings were commenced and was replaced as second defendant by its insurer, Allianz Insurance Australia Ltd.
The action was tried by Fagan J, who entered judgment for both defendants: Sdrolias v Power Distribution Services Pty Ltd [2021] NSWSC 321.
The claim against the head contractor was based on an alleged failure to properly supervise the works and failure to ensure that the labourer in question, a Mr Forster, did not use a reciprocating saw to perform his duties at the time. The primary judge held that the relevant supervisor did not owe a duty of care to Ms Sdrolias or commit any tort for which the head contractor was vicariously liable: at [72]-[73]. There is no appeal from that part of the judgment.
However, Ms Sdrolias appeals from the judgment in favour of Allianz (standing in the shoes of Superior Civil). The primary judge accepted that Superior Civil owed "a duty at common law to exercise reasonable care to avoid accidents that might cause severe injuries to its own personnel that, in turn, might expose other workers on the site to traumatic experiences capable of causing pure mental harm": at [43]. Ms Sdrolias ran a case that Superior Civil was directly liable to her, again on the basis of a failure properly to supervise the work being carried out by Mr Forster and the other man in the pit, a Mr Cahill. The primary judge rejected that claim: at [46]. However, his Honour accepted that Mr Forster failed to exercise reasonable care to avoid cutting a live cable with a metal tool; that he did so while acting within the scope of his employment (adopting a negligent and unauthorised mode of doing work that was authorised by his employer) and that Mr Cahill participated in that negligent conduct: at [57].
The issue on which Ms Sdrolias lost the case was the issue of causation of damage. The primary judge made a damning assessment of her credibility. That informed his Honour's determination of the claim in two critical ways. First, his Honour did not accept Ms Sdrolias's description as to what she saw in the aftermath of the explosion. Secondly, on the strength of his adverse assessment of Ms Sdrolias's credit, the primary judge did not accept the histories she gave to various medical practitioners. There was evidence (considered in more detail below) of the criteria required to be met in order to sustain a diagnosis of post-traumatic stress disorder. His Honour noted that all of those criteria rested heavily on "self-report". Following a detailed analysis of the medical evidence, his Honour concluded at [123]: "…The plaintiff's history is unreliable to the point that the Court cannot accept, on the balance of probabilities, her assertions of having suffered intrusive thoughts or nightmares, at any time. Further, her evidence taken at its highest does not establish any form of avoidant behaviour. That critical criterion of the disorder is not made out. I also do not accept the plaintiff's evidence of post-incident development of negative thoughts or perceptions, such as self-blame. This is another essential criterion that is not established."
The primary judge noted evidence that Ms Sdrolias had a prior history of depression associated with a history of "conflict and stress in her interpersonal relationships, with family members, with others who interacted with family members, with her employer and with her co-workers": at [124]. His Honour's conclusion on the question of causation was expressed as follows at [125]: "There is clear evidence that conflicts and stresses of this nature, with the addition of financial strain and insecurity regarding accommodation, affected the plaintiff during early 2014. For the purpose of determining the plaintiff's claim it is not necessary that I should affirmatively find a causal relationship between those stresses and the plaintiff's depressed state in and after 2014. My finding that the plaintiff has not proved on the balance of probabilities that her symptoms were caused by the October 2013 incident or that they support a diagnosis of post-traumatic stress disorder is sufficient to resolve the case. However, the evidence comfortably satisfies me that the conflicts and stresses to which I have referred, operating in conjunction with the plaintiff's admittedly very difficult personality, persisted through 2014 and were the cause of her ceasing to work for Direct Traffic, in distress, anger and hostility, at the end of September that year. Therefore depression and substance abuse set in, without causal connection to the October 2013 incident."
As may be gleaned from the foregoing summary, it is beyond argument that Ms Sdrolias lost the action on issues of fact determined by the primary judge by reference to his Honour's assessment of her credibility. The principles guiding appellate courts in such cases are well known and need not be rehearsed here in any detail. In summary, as the appeal is by way of rehearing, it is the obligation of this Court to conduct a "real review" of the evidence and the judge's reasons: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at 127, at [25]. In the proper performance of that task, there is a need for "appellate respect for the advantages of trial judges": Fox at [26]. If, making proper allowance for that advantage, this Court concludes that an error has been shown, it is "authorised, and obliged" to give effect to that conclusion: Fox at [27].
But, as the High Court has reiterated more recently, "a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'": Robinson Helicopter Company Inc v McDermott [2016] HCA 22 at [43] (citations omitted); see also Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].
In the present case, the primary judge's central, dispositive factual findings were plainly based on his Honour's "impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing" Ms Sdrolias give evidence: cf Lee v Lee at [55]. His Honour did not equivocate on this issue; he repeatedly stated that he did not believe Ms Sdrolias on the central matters of her account of the incident and the symptoms she described. Much of her evidence as to her movements and observations around the time of the accident and her subsequent symptomatology was rejected.
Paying due regard to the advantage Fagan J enjoyed as the trial judge, I am not persuaded that it is appropriate to interfere with his Honour's primary findings of fact concerning her evidence. Accordingly, I have reached the conclusion that the appeal must be dismissed. I expand upon my reasons for that conclusion below.

Findings as to what Ms Sdrolias saw after the explosion

Grounds 1 to 4 challenge the primary judge's findings as to what Ms Sdrolias observed in the aftermath of the explosion. More precisely, in one way or another and adopting different language, those grounds assert that his Honour was required to accept her evidence on those matters. In order to explain why the argument must be rejected, it is necessary to have regard to the terms in which grounds 1 to 4 are framed (emphasis added): 1. The primary judge erred in finding that he could not be satisfied on the balance of probabilities that the injuries suffered by Mr Forster following the explosion were accurately described by the appellant. 2. The primary judge erred in finding that he was unable to make a finding that the appellant observed Mr Forster and his injuries other than when he was rolling in the dirt 20 m from her. 3. The primary judge erred in failing to find after the explosion the true extent of the appellant's exposure to Mr Forster and Mr Cahill and their injuries, given that: 1. when the explosion occurred the appellant was no more than 20 m from the explosion site; 2. the appellant had an immediate awareness that Mr Forster and Mr Cahill had suffered severe burns; 3. Mr Forster having either been blown or having jumped from the hole was rolling around on the ground near the pit screaming; 4. the other rescuers ran from 150 to 200 m away; 5. the appellant and another rescuer took both Mr Cahill and Mr Forster to a fire hydrant and ran water over their burns; 6. the appellant and another rescuer collectively telephoned the ambulance on the same phone whilst attending to Mr Forster and Mr Cahill's burns. 1. The primary judge was in error in rejecting the appellant's account of the aftermath of the explosion: 1. given that her account was not challenged in cross-examination; 2. the defendants called no evidence to contradict the appellant's account; 3. the appellant's account was consistent with the evidence contained in the statements by [nominated witnesses] such evidence having been accepted by the primary judge as evidence of the truth.
Incidentally, ground 4(c) faces a separate difficulty in that it proceeds on a misapprehension of the evidence. The premise of the complaint is that certain statements were accepted by the primary judge as evidence of the truth. As Allianz explained in its written submissions filed 27 September 2021, that misstates the position.
In any event, returning to the principal difficulty with grounds 1 to 4, Allianz noted in its supplementary submissions dated 27 September 2021 that, when proof of any fact is required, the tribunal of fact must feel an actual persuasion of the occurrence or existence of that fact before it can be found. In support of that contention, Allianz cited the decision of the Federal Court in Warner v Hung; Re Bellpac Pty Ltd (No 2) [2011] FCA 1123 at [48] (Emmett J). To that authority may be added the decision of this court in Nguyen v Cosmopolitan Homes [2008] NSWCA 246. In Nguyen at [44]-[55], McDougall J (with whom McColl and Bell JJA agreed at [1] and [2]) provided a detailed and helpful analysis of the law's insistence that, for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact. His Honour explained at [50] that two schools of thought had been propounded as to the proof of facts, referred to as "the objective probability school" and the "belief school": "The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down 'at least 51 to 49 that such-and-such has taken place or will do so' (see Lord Simon of Glaisdale in Davies v Taylor [1974] AC 207 at 219). The latter, as its name suggests, describes the approach laid down by Dixon J in Briginshaw."
McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches, as suggested by Hodgson J writing extra-curially in "The scales of justice: Probability and proof in legal fact finding" (1995) 69 ALJ 731. The relevant passage is extracted in the judgment in Nguyen at [51]: "In the later article, Hodgson J suggested that the two approaches could be combined. He did so in a way that, I think, is consistent with what I have said above as to Malec. He said at 732 that 'if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged'. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with 'a probability in excess of 50%'."
Allianz submitted that the primary judge's approach to fact-finding represented an appropriate application of those principles. The case was one in which there was a direct challenge to the honesty and reliability of the evidence given by Ms Sdrolias. The primary judge considered that her evidence did not stand up to that challenge and disbelieved her.
As to her evidence concerning the circumstances of the explosion and her exposure to it, his Honour noted at [18] that there were "notable differences" between various accounts Ms Sdrolias had given on various dates. For example, in an incident report on 1 November 2013, Ms Sdrolias claimed she was 20 metres away from the pit when the explosion occurred and made no mention of walking past the pit or engaging in conversation with workers inside it. However, in her evidentiary statement dated 20 August 2020, provided soon before the hearing, Ms Sdrolias stated that immediately before the explosion she walked past the pit and saw both Mr Forster and Mr Cahill in there. She said she heard one of the men say "Ouch!" and when she asked what had happened, he answered that he thought he had cut himself. Yet another different account was provided in cross-examination when Ms Sdrolias said that she walked past the pit but only Mr Forster was inside it while Mr Cahill was sitting on an excavator adjacent to it. She also said that she had overheard Mr Forster tell Mr Cahill he had cut himself rather than enquiring about it herself. During the course of cross-examination, she further claimed that the explosion occurred when she was no more than 10 feet (approximately three metres) away from the pit.
When giving evidence at trial seven years after the incident Ms Sdrolias denied that her recollection would have been better when she provided information for the incident report than it was at trial. To the extent that her statements were inconsistent Ms Sdrolias claimed that she had no reason to be deliberately untruthful when first providing information for the incident report but said she was in shock for days after the accident and this would have affected her ability to recall exact details at the time. The primary judge rejected both propositions and found that Ms Sdrolias was changing her story to enhance her case in negligence against the workmen.
As to the extent of Mr Forster's injuries, the primary judge said at [32]-[33]: "[32] …There is no clinical evidence to confirm her claimed observation of 'burnt flesh all over his body from his head, to the top of his boots on his ankles' (see paragraph 56 of her evidentiary statement). The plaintiff was not challenged in cross-examination about this but owing to my general reservation about her credibility, I do not consider that I have sufficient evidence to be satisfied on the balance of probabilities that Mr Forster suffered injuries that could be accurately described as the plaintiff has recounted them. In his interview with the WorkCover Inspector Mr Forster described his injuries as 'burns to my both arms, my leg, my chest, my neck and my face'. [33] There is insufficient evidence from which I could determine on the balance of probabilities whether Mr Forster's clothes were burned away or how confronting the appearance of his injuries may have been. I am not able to make any finding to the civil standard of proof concerning an accurate description of how Mr Forster's injuries may have presented to the plaintiff under the limitations of her opportunity for observation. As she describes the scene, Mr Forster was rolling in the dirt 20 metres from her, being attended by other people, and she made no further or closer observation but instead was occupied first with assisting Mr Cahill, then with calling the ambulance and securing the perimeter of the accident location."
The primary judge concluded at [34]: "The extent of the trauma to which the plaintiff was exposed, so far as I am able to determine it on this evidence, was the sound of the explosion; the immediate awareness that two men had suffered severe burns; the smell of burnt flesh; the observation of Mr Cahill who was able to walk but was dazed and had suffered visible burns to his face, chest and hair and the observation of Mr Forster evidently in significant pain from more severe burns, the extent of which and the appearance of which to the plaintiff has not [been] satisfactorily established."
In her submissions in this Court, Ms Sdrolias submitted that the evidence in her evidentiary statement that she observed Mr Forster "rolling around on the ground near the pit and screaming" and that "other people were helping him" was unchallenged and compelling evidence that she saw the extent of Mr Forster's burns while he was rolling screaming on the ground, at the water hydrant while she was assisting "the injured workmen" and while she was securing the pit waiting for the ambulance. Ms Sdrolias further submitted that it was her unchallenged and uncontradicted evidence that she saw the injuries and the extent of burnt flesh on both men. It was submitted that there was no basis to find that there was insufficient evidence to make the relevant findings as there was no competing evidence or cross examination.
Those may be matters going to procedural fairness but that is not the complaint. A judge is not obliged to accept evidence only because it is unchallenged. As the cases discussed above established, the tribunal of fact must reach a state of actual persuasion before a finding of fact can be made.
There are aspects of the primary judge's analysis of Ms Sdrolias's evidence, such as the significance of discrepancies in estimating distances on different occasions, on which it was open to take a less exacting approach. It is not uncommon for witnesses to give varying or inaccurate estimates of distance. However, I do not think I can go so far as to conclude that his Honour was obliged to be persuaded (to the extent of erring in not being persuaded) by a witness he did not find persuasive.
For those reasons, I would dismiss grounds 1 to 4.

Findings as to the diagnostic criteria for PTSD

Ms Sdrolias submitted that the primary judge's ultimate finding (that she had not established she suffered psychiatric injury in the nature of post-traumatic stress disorder as a consequence of witnessing the explosion and its aftermath) was clearly erroneous and was reached in reliance upon the culmination of a collection of subordinate findings which were "each and collectively unsupported by the evidence or contrary to the evidence or glaringly improbable". That broad contention is addressed in grounds 5 to 11, as follows: "(5) The primary judge erred in finding it inconceivable that the appellant: (a) would have suffered flashbacks and nightmares for the month of January, and (b) would have said nothing to her employer and then sought additional shifts on 4 February 2014. (6) The primary judge erred in preferring the opinion of Dr J A Roberts over the opinion of Associate Prof Robertson regarding the delayed onset of nightmares and intrusive recollections about the explosion on 30 October 2013. (7) The primary judge erred in accepting the evidence of Dr J A Roberts that the appellant's dreams were repetitive and non-changing and failing to find that the appellant's dreams did change over time and involved variation of the theme related to the explosion. (8) The primary judge erred in finding on the balance of probabilities that he could not accept the appellant's assertion of having suffered intrusive thoughts or nightmares at any time. (9) The primary judge erred in finding that the appellant's evidence did not establish any form of avoidance behaviour. (10) The primary judge erred in finding that the appellant had not proved on the balance of probabilities that the explosion and aftermath on 30 October 2013 was a necessary condition of the occurrence of the psychiatric condition including post-traumatic stress disorder suffered by her. (11) The primary judge erred in finding that the appellant had not established that she suffered psychiatric injury or damage as a consequence of the explosion and aftermath at Eastern Creek on 30 October 2013."
Ms Sdrolias addressed those grounds by reference to the "subordinate findings" identified in the submissions, contending that it was not open to the primary judge to make those subordinate findings. Both parties structured their submissions by reference to those findings rather than the individual grounds of appeal. It is convenient to adopt the same course.
The subordinate findings relate to the extent to which Ms Sdrolias' evidence established a basis to sustain a diagnosis of post-traumatic stress disorder. The primary judge noted at [90] that the psychiatrists' reports all proceeded on the basis that, in order to diagnose post traumatic stress disorder, they would have to be satisfied, first, that as a result of witnessing the immediate aftermath of the explosion, the plaintiff "suffered and continues to suffer from some form of re-experiencing of the event". Secondly, their opinions were premised on it being a necessary criterion that the plaintiff should have exhibited some form of avoidance behaviour. Thirdly, they considered that "negative changes in thought following the incident are essential to the diagnosis", for example that the plaintiff blames herself regarding the incident, has lost interest in activities that were previously enjoyed or has suffered some other negative developments in her thoughts.
At [92] of the judgment, the primary judge noted that all of those diagnostic criteria were "heavily dependent upon the veracity of the plaintiff's self-report". His Honour said, "her unreliability in this respect creates a significant obstacle to her establishing on the balance of probabilities that she has suffered the alleged psychiatric injury as a result of the October 2013 incident."
The subordinate findings Ms Sdrolias seeks to impugn all fall within the primary judge's analysis of that issue.

Subordinate Finding A

The first subordinate finding specified by Ms Sdrolias is: "That it was 'inconceivable' that the appellant would have suffered flashbacks and nightmares for the month of January 2014 yet: said nothing to her employer; and sought additional shifts on 4 February 2014."
As noted by Allianz, that "finding" represents a single sentence extracted from several paragraphs of the judgment in which his Honour, having noted that the diagnostic criteria for post-traumatic stress disorder were dependent upon the veracity of the plaintiff's self-report, proceeded to consider whether those criteria were established. It may be doubted whether it is properly characterised as a discrete finding as opposed to part of the explanation of the judge's reasons for disbelieving the history given by Ms Sdrolias to a doctor she consulted at a medical centre on 13 February 2014, Dr Lim. In any event, I will deal with it in the terms in which it is raised.
Following the consultation on 13 February 2014, Dr Lim diagnosed Ms Sdrolias with post-traumatic stress disorder. The diagnosis was later confirmed by a treating psychologist, Evelyn Walker, on 4 March 2013; by Associate Professor Michael Robertson on 14 April 2014; by Dr Ralf Ilchef on 19 November 2014; by Dr Ben Teoh on 10 April 2016 and by Dr Abishek Nagesh on 19 July 2019.
Dr Lim supported her diagnosis by reference to the relevant diagnostic criteria in DSM-5 in (amongst others) the following comments: 1. under the heading "intrusive symptoms", Dr Lim wrote, "she has had many recurrent and intrusive recollections of the event including being able to smell the burning flesh, recurrent nightmares, flashbacks and repeated stress and anxiety at being back at work in similar situations"; 2. under the heading "persistent avoidance of stimuli associated with the trauma", Dr Lim wrote "she has avoided talking of the event with colleagues, and is unwilling to show them how distressed she is"; 3. under the heading "negative alterations in cognition and mood that are associated with the traumatic event", Dr Lim wrote "she has thought of blame and guilt towards herself for not being about to help the injured co-workers and for removing herself from danger first".
The primary judge recorded those aspects of the history taken by Dr Lim. His Honour explained his reasons for rejecting her diagnosis at [94] (I have emphasised the first impugned finding): "I am not satisfied on the balance of probabilities as to any part of that history. The plaintiff made no complaint of 'intrusive recollections' or 'recurrent nightmares' at any time following the incident up until her presentation to Dr Lim in mid-February 2013. At that time her inability to cope with her employment was, in reality, attributable to quite different causes, being interpersonal conflicts at work exacerbated by financial and family stressors at home. I find it inconceivable that the plaintiff would have suffered alleged flashbacks and nightmares for the month of January and said nothing to her employer, and then sought additional shifts on 4 February 2014. The plaintiff's daughter gave evidence that the plaintiff was 'extremely teary' on the night of 30 October 2013 and that over the following months she was 'emotionally erratic'. Medical opinions given in the case do not suggest that these symptoms, assuming that they were contributed to by the experience of the accident, are indicative of post-traumatic stress disorder. The daughter also said that her mother complained of 'having really bad nightmares' but her evidence did not attribute these complaints to any date earlier than September 2014."
For my part, I do not find it inconceivable that a person might suffer flashbacks and nightmares for a period of a month, say nothing of them to her employer and then seek additional shifts. It is, I think, well understood that people suffering from severe depression can effectively hide their symptoms from family, friends and employers for considerable periods of time before finding themselves suddenly unable to cope.
The difficulty is that, as submitted by Allianz, the particular finding complained of is only one small part of the primary judge's detailed reasoning to the conclusion that he simply did not believe any part of the history Ms Sdrolias gave to Dr Lim. That is the finding that must be disturbed in order for these grounds to succeed. As the primary judge said, his assessment that she was an unreliable witness created a significant obstacle to her discharging her onus of proof at trial. It remains an obstacle to this Court's interfering with the primary judge's findings.
Further, it cannot be said that subordinate finding A was not open on the evidence. The fact that Ms Sdrolias sought extra shifts at a time when she claimed to have been suffering flashbacks and nightmares was the subject of different opinions in the medical evidence. Dr Lim evidently saw no inconsistency. She considered that the diagnostic criterion of avoidance of stimuli associated with the trauma was satisfied by what Ms Sdrolias told her, which she evidently accepted, about avoiding talking of the event with colleagues and being unwilling to show them how distressed she was. However, a psychiatrist qualified as an expert witness by Allianz considered that the fact Ms Sdrolias sought additional shifts from her employer meant that the diagnostic criterion of avoidance of traumatic stimuli was not satisfied in this case.
The weighing of those competing opinions was very much a matter for the primary judge. This is not a case in which it can be said that the evidence was all one way, or that the primary judge's finding was glaringly improbable. While the primary judge expressed himself in stronger language than the expert, his assessment was supported by that evidence.

Subordinate Finding B

Subordinate finding B is: "That the appellant's inability to cope with her employment was, in reality, attributable to quite different causes, being interpersonal conflicts at work exacerbated by financial and family stressors at home."
There was ample evidence of alternative causes for Ms Sdrolias' inability to cope with her employment in mid-February. That is not to say that an incident as horrific as that which she witnessed on 30 October 2013 could not have caused or contributed to her to be unable to cope but that was not the only available inference on the evidence and his Honour rejected it, based on his assessment of her credibility.
Ms Sdrolias submitted that it was glaringly improbable that, during a time of significant financial need, she would stop work without a strong reason. It was noted that she had been with the same employer for three and a half years prior to the explosion. She had coped during that time, notwithstanding describing her work environment as one involving "a lot of backstabbing" where she was unpopular with her peers due to her "abrasive personality" and her habit of reminding her colleagues to adhere to safety procedures. The burden of the submission was that Ms Sdrolias had endured interpersonal conflict at work for some time so there must have been a new reason for her to stop working in mid-February, namely, the onset of her symptoms of PTSD.
Allianz noted that there were unchallenged facts or findings that provided support for the primary judge's conclusion that Ms Sdrolias' inability to cope at work was due to interpersonal conflicts in the workplace exacerbated by financial and family stressors at home. They included the fact that in December 2013, she had been given notice to vacate her home; conflict on 10 February with a co-worker (who refused to work with Ms Sdrolias because she was so rude); an argument with her employer on 11 February 2014 and a finding based on contemporaneous records that one of her twin sons had been taken to hospital on 13 February 2014.
A number of these events were recorded in an email dated 14 February 2014 written by Ms Ven Der Ende, one of the directors of Direct Traffic, the company that employed Ms Sdrolias. That email set out the steps taken by Ms Van Der Ende at the time of the explosion to make sure Ms Sdrolias was alright (which included making arrangements for her to have counselling and encouraging her to take time off work) and the more recent history of personal conflict ("we have had a lot of complaints from employees who do not want to work with Evangelina"). Ms Van Der Ende emphasised two recent conversations she had had with Ms Sdrolias which had been about work in which there had been no mention of nightmares. When on 13 February Ms Sdrolias called Ms Van Der Ende saying (in effect) that she could not cope any more, that she had been having nightmares about the October incident for a month and that she had obtained a workers' compensation certificate for stress leave, Ms Van Der Ende asked why she had not told her this earlier. According to the email, Ms Sdrolias responded "I just can't do it anymore".
There is no doubt that it would have been open to the primary judge to accept that, contrary to appearances, Ms Sdrolias had indeed been suffering symptoms of stress as a result of witnessing the explosion but had avoided telling her employer. That is not enough to warrant a finding by this Court contrary to the finding of the primary judge, which was plainly open on the evidence.

Subordinate Finding C

Subordinate finding C is: "Whilst the appellant's daughter gave evidence that the appellant was 'extremely teary' on the night of 30 October 2013 and that over the following months she was 'emotionally erratic', that ought to be given no weight as medical opinions given in the case did not suggest that these symptoms were indicative of post-traumatic stress disorder."
I apprehend the complaint about that finding is based on a misreading of the judge's reasons at [94] (set out above). Plainly, being extremely teary and emotionally erratic are symptoms that are capable of contributing to a diagnosis of post-traumatic stress disorder. I do not understand his Honour to have found otherwise. I would understand the penultimate sentence in [94] to mean that those symptoms alone would not support the diagnosis. As noted by Allianz, that understanding is confirmed by the primary judge's further statement at [96] that symptoms described to Dr Lim of being "irritable, teary, anxious, lethargic and finding it hard to sleep or to concentrate" would not, according to the psychiatrists' reports, alone substantiate a diagnosis of post-traumatic stress disorder "in the absence of such features as intrusive thoughts of the incident, avoidant behaviour with respect to things that might stir memories of the incident and development of negative perceptions such as self-blame or feelings of loss of worth".

Subordinate Finding D

Subordinate finding D is: "That the content of the appellant's nightmares did not vary [J 97] and this was evidence of malingering."
The defendants' expert forensic psychiatrist, Dr Roberts, provided a report in which he commented on various material provided to him including a report from one of the psychiatrists relied on by Ms Sdrolias, Associate Professor Robertson. Dr Roberts noted that Associate Professor Robertson had described "regular nightmares occurring over and over again". Dr Roberts' comment was to the effect that a claim of repetitive nightmares without variation was an indication of malingering whereas "genuine civilian (non-combat-related) post-traumatic nightmares have been shown to change over time and involve variations on the theme related to the traumatic event".
Ms Sdrolias does not take issue with the opinion; she takes issue with the premise that her nightmares did not vary. Associate Professor Robertson recorded that Ms Sdrolias seemed to have remained psychologically well until late January or early February 2014 when she experienced an acute onset of symptoms of post-traumatic stress disorder. He wrote: "She suspects that the precipitant was the fact that her twin boys were commencing employment in the construction sector. She experienced regular nightmares about the incident, 'the same thing over and over again, seeing the two boys electrocuted'."
Ms Sdrolias contends that Associate Professor Robertson's description of her nightmares as "seeing the two boys electrocuted" was a reference to seeing the two workers. Other medical professionals recorded the content of her nightmares as a recurring image of her two sons being burned. She accordingly argued that there was evidence that the nightmares entailed variations upon a theme. Separately, she submitted that the fact the opinion that claims of repetitive nightmares without variation may indicate malingering should not have been elevated to a matter impugning her credit in this case.
I am not persuaded that it was not open to the primary judge to analyse this issue in the way he did. The text of Associate Professor Robertson's report set out above at least strongly suggests that the nightmares he recorded were about Ms Sdrolias's two sons rather than the two workers.
While Dr Roberts accepted in evidence he did not question Ms Sdrolias as to the content of her nightmares; he drew that understanding from the report of Associate Professor Robertson. But that report seemed to record unchanging nightmares ("the same thing over and over again"). The finding that Ms Sdrolias's account of her nightmares (to the extent that it could be gleaned from the material) was evidence of malingering was open to the primary judge.

Subordinate Finding E

Subordinate finding E is: "The onset of alleged PTSD symptoms were delayed."
Important context in considering this issue is the fact that the term "delayed" has a technical meaning under DSM-5, which is that "the full diagnostic criteria are not met until at least six months after the events (although the onset and expression of some symptoms may be immediate)".
Associate Professor Robertson expressed the opinion that Ms Sdrolias presented with "acute post-traumatic stress disorder with delayed onset". Giving the term its technical meaning, Dr Roberts took issue with that diagnosis in a passage of the report quoted by the primary judge at [101]. Ms Sdrolias submitted that Associate Professor Robertson did not intend to give the term its technical meaning; he was aware that Ms Sdrolias's experience of nightmares began in late January or early February 2014, which was within six months after the incident and therefore would not satisfy the technical use of the term.
However, even if the experts were at cross purposes with each other or the judge misunderstood the position of Associate Professor Robertson, this issue does not assist Ms Sdrolias because the primary judge did not believe her at all. His Honour said at [102]: "Relevantly to [Dr Roberts'] approach, the plaintiff has only claimed limited experience of symptoms from January 2014 and for reasons given at [94] above I do not accept that she suffered even those symptoms." (emphasis added)

Subordinate Finding F

Subordinate finding F is: "That the appellant's alleged anxiety about being back at work in similar situations was contradicted by the fact that she returned to the same site the very next day and thereafter continued in the same line of work through November and December 2013 and January 2014."
It is not clear to me that the primary judge did make such a finding. The reference given in the written submissions is to the judgment at [94] (set out above). I cannot see a finding in those terms.
In any event, if that is the effect of [94], it is a proposition which finds some support in the expert evidence. The defendants' expert at trial, Dr Lee said: "[Ms Sdrolias] did not avoid returning to work as one would expect for a diagnosis of [post-traumatic stress disorder]". For my part, if a person claimed to be experiencing anxiety about being back at work after a traumatic event, I would not take it that attendance at the workplace contradicted the existence of their anxiety. Again, however, it is not enough to have a different perspective. In accordance with the principles discussed above, I must approach this issue paying due deference to the advantage of the primary judge in seeing the evidence unfold, including seeing Ms Sdrolias give evidence.

Subordinate Finding G

Subordinate finding G was identified in the following terms: "That at a meeting held at the appellant's employer's office on 22 April 2014, the appellant 'advised she felt capable of returning to her preinjury duties status and did not need to attempt a graded plan'."
It is appropriate to set out the whole of the relevant passage from the judgment at [106]: "The plaintiff's resumption of her usual pre-accident duties and her request for more hours per week appears to have been from about the end of April 2014. On 8 May 2014 the company that was providing rehabilitation and return-to-work services, identified as "IPAR", issued a report that included the following: [IPAR] issued a suitable [limited] duties report to all parties on 4 April 2014 and scheduled a return to work meeting with [the plaintiff] and her employer to be held at her employer's office on 22 April 2014. During this meeting, [the plaintiff] advised she felt capable of returning to her pre-injury duties status and did not need to attempt a graded plan. [IPAR] advised [the plaintiff] she needed to attend her nominated treating doctor to have this confirmed and issue [a certificate] to reflect this. [IPAR] received [the plaintiff's] pre-injury duties certificate on 1 May 2014 and was advised by [the workers compensation insurer] on 6 May 2014 to close [the plaintiff's] rehabilitation file [...]."
The primary judge found at [107]: "This evidence refutes any suggestion of a symptom of avoidance of work that might remind the plaintiff of the incident."
It may be accepted that the primary judge appears to have focussed on this single remark when there was evidence in the surrounding chronology to indicate that Ms Sdrolias' experience of her efforts to return to work was more complex. In her written submissions, Ms Sdrolias relied in particular upon the following further matters: "On 8 May 2014, IPAR recorded that the appellant attempted a graduated return to work resulting in 2 weeks maintained at 25 hours per week, 'However, IPAR will make a phone call or email to all relevant parties in 13 weeks on the worker's durability of employment and work status' (Blue 192Q). Within 8 weeks the employment trial promptly failed. A certificate of capacity dated 3 July 2014 for the period 3 July 2014 and 8 August 2014 (Blue 585Q) was issued with restrictions 'cannot work solo, no on-call or overnight work (given is on mirtazapine which is sedating)'. Further certificates continued these restrictions until 15 December 2015. All certificates noted a diagnosis of 'post-traumatic stress disorder'."
However, those further matters must in turn be considered in the context of the balance of the judge's assessment of the diagnostic criterion of "avoidance" at [107]: "…Emails from Mr Woodward, the operations manager of Direct Traffic, dated 16 September 2014 and 2 October 2014 record that the plaintiff's reasons for leaving her employment from about the end of September did not include inability to perform the work or a desire to avoid reminders of what had occurred on 30 October 2013. On 16 September 2014 she complained to Mr Woodward, in abusive terms, about a job to which he had allocated to her. He said he would call her back and re-allocate. When he rang back the plaintiff's partner spoke to him in a threatening manner and the plaintiff 'was in the background swearing and yelling abuse'. Late on the afternoon of 2 October 2014 the plaintiff called Mr Woodward sounding distressed and complaining that she '[has not] worked for a while'. When Mr Woodward said that he would speak to the directors before giving her further work 'she became hysterical' and asked whether she was being sacked. She then hung up. She did not seek work from the company again."
As with other findings of the primary judge, I accept that it would have been open on the evidence to come to a contrary conclusion to that reached by his Honour. But it cannot be said that his Honour was obliged to believe Ms Sdrolias on that issue.

Conclusion

The fundamental problem with the whole appeal is that it was open to his Honour to make the subordinate findings and to reach the ultimate conclusion he did, for the detailed reasons recorded in the judgment, having regard to his damning assessment of Ms Sdrolias's credibility. It follows that, when due deference is paid to his Honour's position as the trial judge who saw and heard the evidence unfold, the impugned findings are not demonstrated to be wrong by incontrovertible facts or uncontested testimony, or glaringly improbable or contrary to compelling inferences.
Accordingly, I propose that the appeal be dismissed with costs.

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: 24 February 2022

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