1. The trial took place on 26 March 2024. No oral evidence was called. Rather, the trial proceeded on the basis of a summary of agreed facts. On 27 May 2024 (the next day) Judge Clayton handed down her reasons for her decision that the answer to the preliminary question was 'no'.[1] She subsequently made the following order on 18 June 2024:

As a result of the Court's finding dated 27 March 2024 that the [applicant] has not established that the [respondent] owes a duty of care, the [applicant]'s proceeding against the [respondent] is dismissed.

1. The applicant now seeks leave to appeal that order on the sole ground that the judge erred, at [89] of her judgment, in finding that the respondent did not owe the applicant a duty of care.
2. For the following reasons, we have determined that, although leave to appeal will be granted, the appeal will be dismissed.

1. In agreeing that the preliminary question be resolved by the procedure specified under Order 47 of the Rules, the parties accepted that the question as to whether there was a duty of care should be severed from the other elements necessary to establish negligence (breach, causation and damage), and should instead be determined separately, but at a trial.
2. Order 47 is concerned with the place and mode of a trial. More specifically, r 47.04 provides:
   • 47.04 Separate trial of question

(a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated;

(b) different questions be tried at different times or places or by different modes of trial.

1. It follows that the judge was not hearing a strike out application, or other interlocutory application, but was rather obliged to determine the preliminary question on a final basis where the applicant carried the onus of proof. Hence, as a result of the judge's negative answer to the preliminary question, the respondent was entitled to an order under r 47.05 which dismissed the proceeding against her.
2. In such circumstances, as the applicant accepted in oral argument in this Court, the judge could not find that she did not know whether there was a duty or not. Rather, if the judge was not satisfied of the existence of a duty then the applicant would not establish that duty on the balance of probabilities.
3. As indicated above, the parties also agreed that the trial proceed on the basis of a summary of agreed facts dated 22 December 2023 (the 'agreed facts') which reads:
   1. The applicant was born [in] 3 July 1985 and is 38 years of age. She commenced employment with the JobCo Employment Inc ('JobCo') on 4 December 2012 as a Personal Helper and Mentor Services (PHAMS).
   2. In 2013, the respondent commenced working in the same team as the applicant and they became work colleagues and friends. The respondent and the applicant socialised on occasion outside work hours - including attending the applicant's 'hens night'.
   3. In about September 2013, the applicant informed that [sic] the respondent she had suffered from anxiety and depression in the past and been prescribed medication for these conditions. The applicant also informed the respondent that the applicant's mother had a long-term psychiatric condition and had in the past attempted suicide using a motor vehicle by driving into a tree.
   4. In the period of approximately 6-8 weeks prior to 2 May 2014 the applicant was taking Fridays off work for self-care purposes.
   5. On 2 May 2014, at approximately 2:50pm, the respondent attempted suicide by driving her motor vehicle in to a power pole at the intersection of Atunga Court and Canterbury Road, Heathmont ('the intersection').
   6. At approximately 3:00pm on 2 May 2014, JobCo received a phone call informing them that the respondent had been involved in a transport accident. The applicant's supervisor, Kevin Binding, asked the applicant if she would attend the accident scene with him. The applicant agreed to her supervisor's request [and] Mr Binding then drove with the applicant to the intersection.
   7. As the applicant and Mr Binding were travelling to the intersection, the applicant observed an ambulance traveling in the opposite direction with the lights flashing and sirens operating.
   8. The applicant and Mr Binding arrived at the intersection at approximately 3:30pm. The respondent's vehicle was being loaded on the back of a tow truck. The applicant observed the vehicle was damaged. She also observed a power pole was also damaged. Mr Binding and the applicant approached a police officer. A conversation then took place between Mr Binding, the applicant, and the police officer - during which conversation the police officer expressed the view that the respondent intentionally drove her car in to the power pole. The applicant says she felt as if she was in complete shock.
   9. The event contributed to the applicant developing a psychiatric condition and/or aggravation of an underlying psychiatric condition.
4. The agreed summary is short. Although it was not the subject of submission by either party, such a short summary might give rise to an issue as to whether there was some failure to identify the relevant facts, or the means by which they were to be ascertained, so as to give rise to a procedure which does not conform with the judicial process.[2]
5. However, the facts were clearly identified and agreed. Moreover, the stance of the parties, particularly the applicant, was that the agreed facts were sufficient and exhaustive of the evidence sought to be adduced. There was no 'failure to identify relevant facts' of the kind referred to, and deprecated, by the High Court in Bass v Permanent Trustee Co Ltd.[3] There is also nothing in the record of the proceeding at first instance which suggests that the applicant was precluded from adducing any evidence necessary to support her case additional to that contained in the agreed facts.
6. Thus, counsel for the applicant acknowledged that the judge was confined to the agreed facts and resisted suggestions that the agreed facts might be insufficient to establish the duty of care. He accepted that the judge had to make her decision 'on those [agreed] facts'. When pressed about some of the matters which might have been the subject of evidence, counsel accepted that the ultimate question turned on whether the judge was right or wrong on the basis of 'what was before the judge' and 'on those facts'. His submission was that 'the agreed facts were sufficient', and that he 'just rel[ied] on the agreed facts'.
7. In such circumstances, the applicant's counsel may be taken to have made a considered, deliberate decision that the agreed facts were the only facts the applicant wished to adduce and rely upon in circumstances where he accepted that the applicant needed to establish the facts in order for the duty to arise. This is therefore not a case where the judge was unable to make a determination. Rather, consistent with the procedure agreed to by her legal representatives, the applicant must fail if the evidence is insufficient.
8. At the hearing of this application, the applicant also abandoned reliance on paragraph 3 of the agreed facts. Instead, counsel made it clear that, at least insofar as a personal relationship was concerned, he relied only on the fact that the applicant was a 'co-worker' and 'nothing more'.[4] This was apparently based on a decision to take a 'category' approach. Thus, as we explain below, the applicant's case was that the duty question should turn on whether the applicant fell within a particular 'class' of persons, rather than on any evidence about the content and precise nature of the relationship between the applicant and the respondent.
9. It is therefore not appropriate for this Court to speculate about what, if any, further evidence might have been capable of being adduced in different circumstances, including any further evidence as to the content of the relationship between the applicant and the respondent. Rather, the abandonment of paragraph 3 of the agreed facts suggests that the applicant did not wish to adduce any further evidence about the nature of her personal relationship with the respondent.
10. In these circumstances, the applicant is bound by the procedure adopted with the agreement of her legal representatives, based on the agreed facts. To find otherwise could also mean there might be two hearings conducted - one where the evidence may not be sufficient, leading to a court being 'unable to say' whether there was a duty or not; and then a second hearing, where the applicant is provided with a further opportunity to adduce more detailed and/or different evidence. Such a result would be contrary to ordinary case management principles and significantly undermine the overarching purpose contained in the Civil Procedure Act 2010.[5]
11. The application will instead be determined on the basis of the agreed facts which the parties chose to rely upon, as subsequently amended by the deletion of paragraph 3.

1. After describing the preliminary question, agreed facts and submissions, the judge commenced her analysis.[6]
2. The judge noted that the duty alleged must encompass a duty to avoid psychiatric harm to a person who did not perceive the event, but witnessed some of the aftermath of the event.[7] She noted that the authorities provided guidance, though the categories of cases in which a duty exists are not closed. She identified categories of cases where duties had been imposed despite the absence of any direct threat to the injured person. She considered that the cases where the duty had been imposed could be roughly categorised as:[8]

(a) where the plaintiff is in proximity to a particularly traumatic aspect of the accident or its aftermath (citing Mount Isa Mines Ltd v Pusey ('Pusey');[9] Caffrey v AAI Ltd ('Caffrey');[10] FAI General Insurance Co Ltd v Lucre ('Lucre');[11] and Shipard v Motor Accidents Commission ('Shipard'));[12] and

(b) where there is a close family relationship between the victim of the negligent act and the plaintiff (citing Tame v New South Wales ('Tame');[13] Gifford v Strang Patrick Stevedoring Pty Ltd ('Gifford');[14] and Jaensch v Coffey ('Jaensch')).[15]

1. The judge also observed that a duty may exist where there is both a close family relationship and a proximity to the aftermath, albeit not to an objectively distressing aftermath (citing Jaensch; and King v Philcox ('King')).[16]
2. Her Honour also identified cases where the duty had not been imposed, which included the case of Homsi v Homsi ('Homsi'),[17] where the plaintiff had a close family relationship (as mother) to a negligent driver who inflicted self-harm, but was not proximate to the accident.[18]
3. The judge next turned to 'proximity'. Drawing comparisons with Homsi, she found that merely being at the aftermath of the accident was not sufficient to establish the existence of a duty in this case. The judge said:

I am not persuaded that merely being at the aftermath of this accident was sufficient to establish the existence of a duty. The [respondent] does not owe a duty to every road user who saw the ambulance, tow truck and damaged pole, and had a conversation with a police officer at the scene. That duty would encompass an indeterminate number of people. In that sense, merely being present at the aftermath of the accident does not make a person a 'neighbour' in the test propounded by Lord Atkin.[19]

For example, it is reasonably foreseeable that the sight of an ambulance with lights and sirens in operation could be distressing to those with a history of trauma, and could cause an aggravation of an underlying psychiatric condition in a susceptible person. This does not mean that the tortfeasor who, by inflicting self-harm, necessitated the use of the ambulance, owes that susceptible person a duty of care. Reasonable foreseeability of harm is not enough.[20]

1. The judge noted the applicant's concession that a mere bystander would not be owed a duty of care and reasoned that 'something more is required' to take the respondent from being a 'mere bystander' to owing a duty of care.[21] She proceeded to then consider several factors which the applicant relied upon to take her beyond the status of a 'mere bystander'.
2. First, the judge considered whether the nature of the applicant's relationship with the respondent as a friend or colleague would give rise to a duty. The judge found no authority that would establish that a driver owed a duty to take reasonable care in the driving of a vehicle so as to avoid causing psychiatric harm to a friend or colleague. Such a duty would be novel and she was not persuaded that such an expansion was appropriate.[22] She also observed that friends and colleagues comprised a vague and indeterminate number of people such that the difficulty in identifying to whom the duty was owed to is apparent.[23] Further, that the duty needed to encompass a sufficiently identifiable category of persons, rather than depending on the evidence at trial as to the closeness of the bond between the parties.[24]
3. Secondly, the judge considered whether the aftermath of the accident was sufficient to give rise to a duty. The judge recognised that a duty can be owed to work colleagues in some situations, but found that the fact that the applicant was a friend and colleague who witnessed the aftermath of the respondent's accident did not take her sufficiently outside the category of mere bystander, to give rise to a duty. Nor were the circumstances of the 'aftermath' sufficient. This was not an aftermath that was objectively traumatic or distressing and the applicant was not a rescuer.[25]
4. Thirdly, the judge considered whether the respondent's particular knowledge of the plaintiff's vulnerability gave rise to a duty. The judge noted that formulating the duty in this way essentially creates a duty of care owed by the respondent to an individual, rather than to a category of persons. Such framing falls foul of the requirement not to frame the duty of care too narrowly in retrospect as it merges questions of duty and breach.[26]
5. Finally, the judge found that it was not reasonably foreseeable that work colleagues, including the applicant, would witness the aftermath of the accident.[27] The judge found that it was not apparent: that an employer would be the likely party notified of an accident; that a representative of the employer would attend the scene; and that the applicant would attend the scene.[28]
6. However, even if the applicant's attendance was reasonably foreseeable, or the agreed facts provided insufficient information to determine whether or not her attendance was reasonably foreseeable,[29] she was satisfied on the other bases that no duty existed. That is, the applicant's proximity to the aftermath did not take her beyond the category of a bystander; her status as friend and work colleague did not elevate her to a class which the law would recognise; and the particular knowledge she had about the applicant's history conflated breach with duty and gave rise to an overly specific duty of care.[30]
7. The judge therefore found that the answer to the preliminary question was 'no'.

1. In written submissions the applicant contended that the respondent owed her a duty of care on two independent bases:

(a) first, on the basis that she was a 'mere bystander'. This was said to be because she was 'in the immediate vicinity of an accident or its aftermath'. She relied on Homsi at [61] for this proposition; and

(b) secondly, on the basis that the applicant and respondent were work colleagues, and so, by reason of that relationship, it was reasonably foreseeable that the applicant would suffer a psychiatric injury as a result of witnessing the aftermath of a transport accident involving the respondent.

1. The applicant submitted that those two bases were previously conflated when the trial judge considered the preliminary question and that, moving forward, this Court should consider that there were two discretely formulated duties of care.
2. The applicant submitted that the existence of a duty of care in cases involving negligently inflicted psychiatric harm depends on reasonable foreseeability of psychiatric harm alone. Such harm will be reasonably foreseeable if it is 'not far-fetched or fanciful'. In support of that principle, the applicant cited several High Court authorities, including Tame; Koehler v Cerebos (Australia) Ltd ('Koehler');[31] Wicks v State Rail Authority (NSW) ('Wicks');[32] and King. To the extent that J Forrest J may suggest otherwise in Homsi at [29], the applicant submitted that his Honour was mistaken.
3. Turning then to the first formulation of the duty owed to the applicant as a 'mere bystander', the applicant submitted that a 'mere bystander' may recover for damage caused by injury to another. She cited Hambrook v Stokes ('Hambrook') and,[33] more particularly, Homsi at [61] in support of this proposition.[34]
4. The applicant submitted that the judge's 'no-duty' finding was problematic for a number of reasons.
5. First, the applicant submitted that on no view could it be properly said that it was 'far fetched or fanciful' to think that a person who, like the applicant, witnessed the immediate aftermath of a motor vehicle accident might suffer a psychiatric injury. The denial of the existence of such a duty appeared to be inconsistent with Tame and Homsi.
6. Secondly, the applicant submitted that the judge erred by finding that the applicant was not a 'rescuer'. Such a finding is irreconcilable with 'rescuer' cases where plaintiff police officers suffered psychiatric injuries attending the aftermath of fatal accidents, including in Caffrey and Wicks. The duty was imposed on the defendants in those cases solely on the basis of foreseeability, and not on the basis that the plaintiff was a rescuer. Accordingly, it was hard to see how a similar duty would not be owed to a person, such as the applicant, who also attended the aftermath and also suffered a psychiatric injury.
7. Thirdly, the applicant submitted that the judge's suggestion that 'something more' than being a 'mere bystander' is required, such as a particularly close relationship between the injured party and the plaintiff, or the witnessing of a particularly distressing accident, is again inconsistent with the principle that reasonable foreseeability of psychiatric injury is all that is required for a duty to exist.
8. Fourthly, the applicant submitted that the judge was wrong to make her finding on the basis that the recognition of a duty to those 'merely' at the aftermath of an accident would 'encompass an indeterminate number of people'. First, such reasoning is problematic because it is a policy-based argument, which the court should generally avoid relying on; secondly, it conflates two separate issues of more people being owed a duty and an indeterminate number of people being owed a duty, with only the latter pointing against the existence of a duty; and thirdly, it paradoxically suggests that the more people that one injures by their negligence the less likely they are to owe a duty of care, which is plainly wrong. The applicant submitted that if this was a valid argument then presumably Mr Gargasoulas could have argued that he did not owe a duty to those who witnessed him deliberately driving his vehicle into pedestrians in Melbourne in 2017.[35]
9. The applicant next addressed her second formulation of the duty owed to the applicant as the respondent's work colleague. The applicant submitted that such a duty does exist because it is not 'far fetched or fanciful' to think that a person who witnesses the immediate aftermath of a motor vehicle accident involving a colleague might suffer a psychiatric injury. The applicant contended that this case is similar to the case of Pusey where the co-workers were not friends and, indeed, did not even know each other. And while Pusey was a case against an employer, part of the plaintiff's cause of action was based on vicarious liability. Implicit in the finding that the defendant employer owed a duty to the plaintiff was therefore a finding that the fellow employees also owed a duty to the plaintiff. The applicant also highlighted the remarks of Windeyer J in Pusey that foreseeability does not mean 'foresight of the particular course of events causing the harm ... only of some harm of a like kind'.[36]
10. In oral submissions counsel submitted that the case was actually framed on three bases:

(a) first, that the applicant was in the 'immediate vicinity or aftermath' of the accident as described in [61] of Homsi;

(b) secondly, that the applicant was owed a duty by reason of being a 'mere bystander'; and

(c) thirdly, that she was owed a duty by reason of her status as a co-worker of the respondent, based on Pusey.

1. Turning to the first two bases, counsel placed extensive reliance on [61] of Homsi. He also cited the concession of the respondent (made at first instance) that the applicant 'was at the aftermath of the accident'. His submission was that the duty would extend to everyone who drove past the accident, even after the car and victim had been removed, because it was reasonably foreseeable that such persons might be affected. He also relied on the rescuer cases and submitted that a police officer would be better equipped to handle an accident scene, such that reasonable foreseeability may actually pose a greater hurdle to such plaintiffs.[37]
2. In terms of the third category, counsel relied upon the applicant's status as a co-worker and again cited Pusey. However he accepted that the agreed facts were distinguishable from Pusey given the closer proximity between the co-worker and the gruesome injuries suffered by the victims in the Pusey case.

1. In written submissions, the respondent contended that the judge was correct, having regard, inter alia, to the form of the preliminary question and agreed facts.
2. The respondent highlighted that the applicant was not present at the scene when the respondent attempted suicide. Further, that her attendance lacked 'immediacy in both time and space'[38] and that it was not part of the applicant's normal work duties that she be required to attend accident scenes.
3. The respondent criticised the reframing of the duty allegedly owed which departed from the terms of the preliminary question. However, she submitted that the judge dealt with the issues of bystander, aftermath and relationship.
4. The respondent submitted that reasonable foreseeability alone was not enough since that concept was bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated, having regard to the nature of the relationship between the parties and the factual circumstances of the case.[39] It was also appropriate for the judge to consider the question by reference to the guidance given by decided cases, as she did.[40]
5. The respondent submitted that the judge was correct to consider that merely being at the aftermath was insufficient where the nature of the aftermath was unlike the usual case of aftermath involving damage to vehicle, property and persons at the scene. Importantly, what distinguished this case from other aftermath cases was that the psychiatric injury occurred when the police officer expressed the view that the respondent had intentionally driven her car into the pole after the respondent had departed.
6. The respondent submitted that [61] of Homsi should also not be read in isolation, but should be read in the context of the judge's previous discussion, which included a separate consideration of what he termed 'immediate victims' and 'secondary victims'. The paragraph should not be read as if the mere presence of a 'secondary victim' (who does not witness the event) at the aftermath is enough, unconnected to the relationship between tortfeasor and victim.
7. In this case, attendance at the aftermath was insufficient without a proper consideration of other factors. The respondent highlighted distinguishing features in Jaensch (where there was a close family relationship) and Lucre and Caffrey (which involved immediate proximity to a distressing accident). In this case, were it not for the police officer's opinion, coupled with the applicant's history of depression and anxiety and her mother's history, there was no suggestion that the applicant would have suffered a psychiatric reaction merely from her attendance at the aftermath - which involved observation of ambulance, vehicle and pole.
8. Accordingly the judge's finding that attendance at the aftermath was insufficient should be accepted.
9. Turning next to the relationship, the respondent submitted:

(a) that the applicant was not a close relative (Tame; Gifford; King); an immediate victim (Lucre; Shipard), nor a rescuer (Pusey; Caffrey). The courts have not recognised a duty of care of the kind posited in this case;

(b) the judge correctly observed that the posited duty involved a vague and indeterminate number of people such that there would be difficulty in identifying to whom the duty was owed;

(c) policy may be an appropriate consideration in cases involving the positing of a novel duty;[41] and

(d) the judge was correct to find that the posited relationship cannot depend on evidence at trial as to the closeness of the bond, but rather must encompass a sufficiently identifiable category.

1. The respondent submitted that the judge was correct to find that it was not reasonably foreseeable that the applicant as work colleague would attend at the aftermath of an accident wherein the respondent had earlier attempted suicide. In any event, she was also correct that the duty would not arise on the 'other bases' identified at [87] of her Reasons.
2. In oral submissions senior counsel submitted that it was not the law that anyone who drove past tow trucks, ambulances and damaged cars would be able to sue for psychiatric injury. Although there was an 'aftermath' in the sense that the applicant travelled by car to the scene after an accident, there are different kinds of 'aftermaths' such that not every aftermath will be one from which a psychiatric injury could be expected to arise - as also recognised by the judge at [59]-[60] of her Reasons.
3. Counsel also submitted that being a mere bystander was not enough.[42] There was no authority which supported the proposition that a mere bystander to the 'aftermath' (understood in a limited sense) would be owed a duty of care.
4. He also submitted that there was no case where a co-worker owed a duty because of the way her co-worker drove a car. The case was very different to that of Pusey.
5. Counsel also emphasised the need for the tortfeaser to have 'reasonable contemplation' of the class in question (referring to Gleeson CJ and Hayne J in Tame) and that there was room for policy. However, he fairly conceded that self-harm was not itself a disqualifying factor.

1. Prior to considering the appropriate resolution of this application it is necessary to identify the relevant applicable general principles as identified in three decisions of the High Court: Tame, Wicks and King.
2. In Tame, the High Court heard and determined two appeals. The first concerned a claim brought by a driver, Mrs Tame, who developed a psychiatric disorder upon learning of a mistaken blood alcohol reading taken by a police officer at the scene of a traffic accident. The second, Annetts v Australian Stations Pty Ltd ('Annetts'),[43] concerned a claim brought by Mr and Mrs Annetts, the parents of a sixteen year old boy. There was evidence that they agreed to the defendant employing him as a jackeroo on a cattle station after making inquiries about the conditions under which he would be working, and having been assured that he would be under constant supervision. Despite these assurances, their son was sent to work alone at a remote cattle station, went missing and later died. Several months later, the parents were informed that their son's remains had been found in the desert where he had died as a result of dehydration, exhaustion and hypothermia.
3. The Court unanimously found against Mrs Tame, and in favour of Mr and Mrs Annetts, although separate reasons were delivered. One of the issues before the Court concerned whether it was a separate pre-condition to liability for negligently inflicted psychiatric injury that, in the absence of knowledge of a particular susceptibility, a person of 'normal fortitude' might suffer psychiatric injury. A majority of the Court (Gleeson CJ, Gaudron, Gummow and Kirby JJ) did not consider reasonable or ordinary fortitude to be a necessary criterion of foreseeability.[44] Rather, they considered that the central question was whether the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable.
4. Thus, Gummow and Kirby JJ stated that:

the concept of 'normal fortitude' should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.[45]

A definition of the ambit of a person's proper concern for others is necessary for a decision about whether a defendant's conduct amounts to actionable negligence. The essential concept in the process of definition is reasonableness. What is the extent of concern for the interests of others which it is reasonable to require as a matter of legal obligation, breach of which will sound in damages?

Lord Atkin, in Donoghue v Stevenson, spoke of the effect of acts or omissions on 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'. It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation, that determines the existence of a duty of care. ...

A necessary, although not sufficient, condition of the existence of a legal duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed. ... It is important that 'reasonable foreseeability' should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.[46]

1. In Wicks, the High Court considered a claim brought by two police officers who sued a railway operator in negligence for psychiatric injuries developed following their attendance at the scene of a passenger train derailment where they were confronted with 'death, injury and the wreckage of the train'. The officers attempted to relieve the suffering of survivors and to get them to a place of safety. They also later undertook other tasks at the scene, where they remained for a considerable time.
2. The primary question for the Court was whether s 30(2) of the Civil Liability Act 2002 (NSW) was engaged so as to bar the claims of the policemen.[47] The Court resolved this issue in their favour. In circumstances where both parties had submitted that the Court should not decide the issue of duty of care they remitted that issue to the Court of Appeal. However, in doing so the High Court unanimously restated the law as expressed in Tame as follows:

Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable.[48]

1. In King a man died in a motor vehicle accident as a result of the negligence of one of the drivers, Mr King. The deceased's brother heard of the accident, which had caused his brother's death, a few hours later. He then realised that he had driven past the location of the accident earlier that day while the vehicle - in which his brother was trapped and dying - was still there. The High Court found that the brother's claim was defeated because he was not present at the scene of the accident as required by s 53(1)(a) of the Civil Liability Act 1936 (SA). The determination of the existence of a duty of care was therefore not a necessary part of the decision[49], which was also affected by factors specified under s 33 of that Act.
2. Nonetheless, French CJ, Kiefel and Gageler JJ observed that '[a]t common law, as under s 33, the existence of a duty of care not to cause another person pure mental harm is dependent upon a number of variables which inform the foreseeability of risk.'[50] They further observed that the Court had previously considered the extent of the common law duty of care not to cause mental harm to a person connected with the primary victim in decisions which had focused upon the particular relationships between victim and plaintiff.[51] They ultimately could not say that the conclusion which the Full Court had reached - to the effect that a duty of care existed in respect of a sibling - was wrong.
3. Nettle J took the same view,[52] but gave separate detailed reasons about the principles that ought to apply:

Foreseeability alone, however, is not enough. Section 33(1) does not displace the common law imperative that 'reasonable foreseeability' be understood and applied bearing in mind that it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated. As Gleeson CJ observed in Tame v New South Wales:

• What a person is capable of foreseeing, what it is reasonable to require a person to have in contemplation, and what kinds of relationship attract a legal obligation to act with reasonable care for the interests of another, are related aspects of the one problem. The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.

This Court has not before had to determine whether a duty of care is owed in the circumstances presented by this case. Wicks made passing reference to the issue of duty of care owed to those present at the aftermath of an accident but did not deal with it in detail. Jaensch v Coffey, Tame and Gifford v Strang Patrick Stevedoring Pty Ltd all provide relevant guidance, but the issue cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant. As Deane J concluded in Jaensch, the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of 'proximity' that Deane J held to be the touchstone of the existence of a duty of care is no longer considered determinative, it nonetheless 'gives focus to the inquiry'. It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a 'judicial evaluation of the factors which tend for or against a conclusion' that it is reasonable (in the sense spoken of by Gleeson CJ in Tame) for a duty of care to arise. That these considerations may be tempered or assisted by policy considerations and value judgments is not, however, an invitation to engage in 'discretionary decision-making in individual cases'. Rather, it reflects the reality that, although '[r]easonableness is judged in the light of current community standards', and the 'totality of the relationship[s] between the parties' must be evaluated, it is neither possible nor desirable to state an 'ultimate and permanent value' according to which the question of when a duty arises in a particular category of case may be comprehensively answered.[53]

1. It is therefore important to engage in 'induction and deduction' by reference to previously decided cases, but 'reasonableness' remains a central concept. There may be a danger in this context in utilising categorisation as a substitute for the application of the concept of 'reasonableness' to the particular factual circumstances of an individual case. As Gleeson CJ also stated in Tame:

Categorisation is a useful means of formulating legal principle, and of giving necessary guidance to trial courts, but sooner or later a case is bound to arise that will expose the dangers of inflexibility, especially in an area of the law which has reasonableness as its central concept. Ultimately, reasonableness defies rigorous categorisation of its elements.[54]

1. The applicant's approach in this case well illustrates the dangers of over categorising. Although she accepted that the central inquiry was 'reasonable foreseeability' (in fact she submitted that it was the only test), the case was conducted on the basis of a discrete 'categorisation' approach. That is, her case was that because she fell within a particular discrete paragraph in Homsi; or was a 'bystander'; or was someone involved in an 'aftermath'; or was a 'co-worker' that harm of the kind she suffered was necessarily reasonably foreseeable, which in turn necessarily established a duty of care. Such an approach is incorrect as a matter of principle. Although the decisions provide guidance, a short survey of the cited cases indicates that it is necessary to consider the facts adduced in order to assess whether a duty arises in the particular circumstances of an individual case.

1. First, turning to the applicant's emphasis on the first part of [61] of Homsi (italicised below) it is relevant to extract the paragraph in its entirety as follows:

Hopefully, it has become apparent that I consider that the common law recognises that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care. The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor's negligence. Such a duty is dependent upon an established and pre-existing duty of care being owed by the tortfeasor to the primary victim.[55]

1. It is clear, from a reading of the prior paragraphs and in context, that J Forrest J was addressing the concept of what he described as a 'primary victim' in the first part of [61] - as opposed to a 'secondary victim' in respect of the second part. His Honour also defined an 'immediate victim' as someone suffering psychiatric injury caused by 'direct perception of harm to oneself or a close family member as a result of the tortious action of another'.[56] By contrast he defined a 'secondary victim' as being constituted by close family members who did not witness the relevant event.[57]
2. In this context, the applicant would not be within J Forrest J's definition of an 'immediate victim' at all given she did not directly perceive the event and would not come within the relevant part of [61].
3. However, even if the applicant was to be included in the relevant part of the paragraph, the paragraph should again be read in context. Thus, in his prior discussion,[58] J Forrest J discusses the difficulties with identifying the point at which one 'draws the line' in relation to 'immediate victim' recovery. In so doing, he cited the decision of Jaensch (to which we will return). In that decision, Brennan J considered that a distinction might be drawn between the attendance at a scene of a rescuer, parent or spouse, as opposed to attendance by other 'passers-by'.[59] While he described a defendant's infliction of injury as a 'summons' to a rescuer,[60] parent or spouse to attend the victim, this was not necessarily the case with other persons. Hence he stated:

It would be an exceptional case if it could be found that the attendance of other persons at the scene of an accident is the result of the defendant's negligence. However foreseeable it may be that passers-by will stop or that morbid curiosity will bring others to the scene, it is difficult to envisage a case where their attendance at the scene and their perception of it could fairly be regarded as the result of the defendant's conduct. Unless their attendance at and perception of the scene is shown to be a result, and a reasonably foreseeable result, of the defendant's conduct, they are not entitled to recover damages for psychiatric illness induced by sudden perception of it. That is, however, a question of fact.[61]

1. J Forrest J drew on these remarks in observing:

It follows that Australian law recognises that in certain circumstances an immediate victim who suffers psychiatric injury alone will be owed a duty of care by a negligent motorist. Those circumstances will, as Brennan J noted, vary from case to case. What is abundantly clear is that there must be a close physical proximity between the event and the psychiatric reaction of the plaintiff. It is not necessary to explore where the line is to be drawn - indeed, it may not be possible. For present purposes, what is important is the necessity for immediate physical proximity to the tortious event or its aftermath.[62]

1. The passage in [61] of Homsi therefore does not suggest that an attendee at an 'aftermath' will always be owed a duty of care when read in proper context. This will only happen 'in certain circumstances'. Moreover, in considering what J Forrest J said in this passage, it needs to be remembered that his Honour was dealing with a pleading summons and not the trial of a preliminary question.
2. Even if the passage was read in the way the applicant suggests, it would be contrary to the principles we have already outlined. As was also said by Gummow and Kirby JJ in Tame, distance in time and space from a distressing event may certainly be relevant to assessing reasonable foreseeability, but they are 'not decisive'.[63] It all depends instead on an assessment of the facts, taking into account the relationship between plaintiff and victim, as well as the distressing and dramatic nature of the relevant phenomenon. As Brennan J also stated in Jaensch:

The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it.[64]

1. The example of 'special significance' provided by Brennan J was the decision of Hambrook (which the applicant also cited) where a mother succeeded in a claim for psychiatric injury even though she was not present when her child was injured by a lorry, but saw the runaway lorry shortly after parting from her children. The runaway lorry had a 'special significance' for a mother who knows her children to have been in the vicinity.[65]
2. Turning next to the applicant's suggested categorisation as 'bystander', a key case is that of Lucre. In Lucre, the respondent was driving a truck when a car approached in the opposite direction and made a sudden right hand turn into the path of the truck. The car and its negligent driver were crushed under the truck. The respondent rang triple zero from his mobile phone and then climbed out of the truck, stepping onto the car. He endeavoured to assist the driver, who had a very faint pulse and died soon afterwards.
3. The primary judge held that a duty of care was owed by the driver to the respondent truck driver, which was upheld by the New South Wales Court of Appeal. In the leading judgment of Mason P (Meagher J and Giles JA agreeing), his Honour considered that 'something more' than being a 'mere bystander' was required,[66] but ultimately concluded that there was 'something more', stating:

In my view, what distinguished the respondent from the 'mere bystander' was the immediacy of his involvement in the accident that caused the death that caused the psychiatric injury. That immediacy is quite obvious in both time and space. But there is a deeper connection stemming from those circumstances. According to the laws of physics, the vehicle under the control of the respondent contributed directly to the death of the deceased. This distinguished the respondent from a bystander, even one who was a passenger in his truck.[67]

1. Mason P considered that the case was closely analogous to a situation considered in Alcock v Chief Constable of South Yorkshire Police,[68] where the defendant's negligent conduct had foreseeably put the respondent in the position of being an 'unwilling participant' in the event.[69]
2. The applicant's reliance on her status as a 'bystander' is hence unhelpful.
3. First, it is highly doubtful that the applicant should be properly regarded as a 'bystander' on the basis of the agreed facts. The Macquarie Dictionary defines a bystander as 'a person present but not involved; a chance looker-on'.[70] Given that the applicant was not present at the time the accident happened and when impact was made she is not readily characterised as a 'bystander', even if such a categorisation would be helpful.
4. Secondly and in any event, the authorities do not suggest that categorisation as a 'bystander' will automatically give rise to a duty of care. If anything, the decision in Lucre and the remarks of Brennan J in Jaensch suggest the contrary.[71]
5. Thirdly, and most significantly, mere presence at the scene - as a 'bystander' or otherwise - cannot exhaustively define whether a duty of care exists. The key factor is, rather, whether the psychiatric injury is reasonably foreseeable having regard to the relevant facts, including the nature of the accident itself. Thus, in Lucre, by turning into the path of the truck, it was reasonably foreseeable that the respondent would become an 'unwilling participant' in the event. By way of contrast, the attendance of passers-by who come out of 'morbid curiosity' may be regarded as the authors of their own distress.[72] Such attendance is not fairly regarded as a reasonably foreseeable result of the defendant's conduct.
6. This is not to say that 'bystanders' might never recover.[73] In fact, it may be that a person who deliberately drives at pedestrians ought reasonably contemplate that those in the immediate vicinity of such a distressing injury could suffer psychiatric injury (as in the Gargasoulas scenario). However, each case will turn on its own facts. In the present case, the agreed facts do not establish the presence of the applicant in the 'immediate vicinity'. To the contrary, they indicate that the applicant was not present at the scene of the accident until some 40 minutes after the time of impact, after the victim had already left, when all that was left was a damaged pole and car.
7. Turning next to 'aftermath', the judge correctly had regard to the decision of Jaensch. In that case, a policeman was riding his motor cycle when he collided with a motor vehicle driven negligently by the defendant. The policeman was seriously injured and taken to hospital. The policeman's wife, Mrs Coffey, who was not at the scene of the accident, was brought to the hospital where she saw her husband in obvious severe pain. She was told that he was 'pretty bad' and she subsequently suffered psychiatric injury. As particularly described by Deane J, she sustained this injury by reason of 'what she saw and heard at the hospital while her husband was being treated'.[74]
8. The High Court affirmed the decision of the Full Court of the Supreme Court of South Australia that the driver of the car owed a duty of care to Mrs Coffey. This was despite the fact that she was not a witness to the accident and only suffered her injury hours, rather than minutes, after that accident. In so doing, the Court extended the concept of an 'aftermath' beyond the immediate point of impact. As Deane J stated, the facts constituting a road accident and its aftermath:

may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment.[75]

1. This has been seen as a liberal extension of the concept of an 'aftermath', but two matters are critical. First, it is natural to consider that the physical aftermath of an accident might extend to the extraction and treatment of the victim, particularly where the person's injuries continue to be visible. Secondly, the case concerned the close relationship of husband and wife where it was reasonably foreseeable that Mrs Coffey would be at the hospital to observe her husband and what happened to him that night.[76]
2. It may be observed that neither of those two features exist in the present case where the victim had already left the scene by the time the applicant arrived and the relationship was that of work colleagues, or friends.
3. We nevertheless accept that a duty of care might be owed to persons who attend accident scenes subsequent to the occurrence of an accident, even in the absence of some pre-existing relationship.[77] Thus, the courts have found that a duty of care might be owed to those who may be categorised as 'rescuers' who attend the 'aftermath' of an accident.[78] However, the attendance at an 'aftermath' is not of itself decisive. Rather, the key point is that it is foreseeable that rescuers will come to an accident scene, such that their arrival is viewed as the natural and probable consequence of the conduct which causes the injury.[79] It must also be foreseeable that they will suffer injury in doing so by reason, for example, of the likely distressing aspects of that scene.
4. These matters are well illustrated by the case of Pusey. In that case, Mr Pusey sued his employer in negligence for psychiatric harm that he suffered while working as an engineer in his employer's powerhouse. While Mr Pusey was working, two electricians, who were fellow employees, were severely burnt after a short circuit was caused by their negligence while testing a switchboard. The short circuit caused a loud noise like an explosion, which was heard by Mr Pusey who was working on the floor below. He therefore went to the scene; saw one of the electricians (with whom he was not already acquainted) naked and 'just burnt up'. He assisted the severely injured man and helped him down the building to the ambulance. He later heard that the electrician died nine days later. In this context the findings of the trial judge are instructive:

In the present case I think that the creation of an electric arc of fire was reasonably foreseeable by an expert in this field in the event of a short circuit occurring through the negligence of a servant or agent of the defendant. If, as happened, intense heat was created it was foreseeable that electricians in the powerhouse would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries.[80]

1. The trial judge gave judgment for Mr Pusey and an appeal was dismissed by both the Full Court of the Supreme Court of Queensland, and also by the High Court. In so finding, each judge upheld the trial judge's decision, on the basis that the employer ought to have reasonably foreseen the injury.[81]
2. It will be recalled that the applicant sought to rely on the case of Pusey to suggest that her status as co-worker was sufficient to establish a duty of care. Although Windeyer J made reference to vicarious liability, however, he ultimately avoided considering the question of duty on this basis because the trial judge's findings meant that a breach by the appellant employer of its own duty of care was a cause of the accident.[82] He therefore considered the question from the point of view of the employer only. The other judges similarly upheld the trial judge without any recourse to the notion of vicarious liability, but rather, as we have explained already, on the basis of foreseeability by the employer.
3. Pusey therefore does not support the applicant's suggestion that the applicant's status as a 'co-worker', without more, would automatically establish a duty of care. Rather, the key issue of reasonable foreseeability means that the case must be determined on the basis of the facts adduced in the case. This is also highlighted by the decision of the High Court in Wicks, which also concerned a 'rescuer' case.
4. As we have earlier explained, the primary issue in Wicks was the applicability of s 30(2) of the Civil Liability Act 2002 (NSW) and the Court did not actually decide the issue of whether there was a duty of care. Nevertheless, the Court observed that the resolution of the issue of duty would involve consideration of whether it was reasonably foreseeable that a rescuer might suffer psychiatric injury as a result of his experiences at the scene. The Court continued:

Or to put the same question another way, was it reasonably foreseeable that sights of the kind a rescuer might see, sounds of the kind a rescuer might hear, tasks of the kind a rescuer might have to undertake to try to ease the suffering of others and take them to safety, would be, in combination, such as might cause a person of normal fortitude to develop a recognised psychiatric illness? The question of foreseeability is to be posed in these terms because it must be judged before the accident happened.[83]

1. Although these comments were made in the context of pt 3 of the Civil Liability Act 2002 (NSW), they are apposite in highlighting the sort of prospective inquiry necessary in order to establish the existence of a duty of care.
2. Insofar as the applicant sought to rely on her relationship with the respondent, it may be accepted that there are a number of decisions of the High Court which indicate that a plaintiff may be successful on the basis of a close relationship, even where there is little,[84] or no,[85] physical proximity with the accident itself.
3. However, those decisions have been confined to cases where the plaintiffs are close relatives or spouses. The reason why such very close relationships might attract a duty of care again turns on the application of the principles we have already identified. For example, in King, Nettle J considered that each of the considerations he had cited from the judgment of Deane J in Jaensch favoured the recognition of a duty of care.[86] These critically included that it was reasonably foreseeable that close relatives of a motor accident victim might come to the aftermath of an accident and suffer mental harm.[87]
4. By way of summary, then, the authorities we have discussed provide guidance. However, they do not suggest that the applicant's status as 'bystander', or presence at 'aftermath', is decisive, even if such categorisations are applicable. Nor does Pusey suggest that the applicant's status as a 'work colleague' will necessarily establish a duty of care. The applicant's submission that the Court ought to consider the issues 'discretely' is hence unhelpful.
5. Rather the cases suggest that the issue in this case will turn on the application of the principles we have identified to the agreed facts. It is to that task that we now turn.

1. The central question in this case is whether the judge was correct[88] to find that the applicant had not established that the respondent owed the relevant duty of care as defined by the preliminary question. That duty was specified to be a duty of the respondent to avoid using her car to inflict self-harm in the course of an attempted suicide which 'may result in psychiatric injury to her work colleagues and, in particular the applicant, who may witness the aftermath of the event'.
2. The first fundamental obstacle to recognition of this duty of care is that the applicant adduced no evidence which suggested that it was reasonably foreseeable that the applicant would attend the scene - and thereby witness the 'aftermath' - if the respondent attempted suicide.
3. As the judge correctly observed, there was no evidence adduced:

(a) that the applicant's employer would be notified in the event of accident;

(b) that, even if this occurred, a supervisor or other representative of the applicant's employer would likely attend the scene;

(c) that, even if (a) and (b) were reasonably foreseeable, any work colleague, including the applicant, would attend the scene.

1. In relation to (c), we will say something more about the nature of the relationship below. However, the relationship of work colleague, or even friend, is readily distinguishable from that of a close relative where the courts have recognised that it is reasonably foreseeable that they might come to the aftermath of an accident scene and suffer mental harm. The case of Pusey also did not assist the applicant for reasons we have already given.
2. This is not to say that the presence of a co-worker at an accident scene would never be foreseeable by another co-worker, or friend. However, the applicant would need to adduce evidence to support that this was so, having regard to the particular circumstances of the relationship. In this case, the applicant did not adduce any cogent evidence as to the content, or nature, of her relationship with the respondent. Counsel instead relied only on the fact that the applicant was a 'co-worker' and 'nothing more' and abandoned paragraph 3 of the agreed facts.
3. The applicant also appeared to place much reliance on what actually occurred after the accident, ie, that the applicant did in fact arrive at the scene some 40 minutes after it occurred. However, the question of reasonable foreseeability is to be judged prospectively, before the 'event' occurred.[89]
4. There was therefore no evidence to suggest that it was reasonably foreseeable that the applicant would attend the scene - and thereby witness the 'aftermath'. In those circumstances, the applicant must fail on this basis alone. However, this not the only difficulty for the applicant.
5. Thus, even it if was somehow foreseeable that the applicant would attend the aftermath, there was no evidence to suggest that it was reasonably foreseeable that she might suffer psychiatric injury by turning up 40 minutes after the accident occurred. In considering this question, it is important to return to the physical aspects of the accident. They were, sadly, relatively straightforward and consisted of the respondent's attempted suicide 'by driving her motor vehicle in to a power pole'. We have also assumed for the purposes of considering this issue (in the applicant's favour), that the psychiatric injury was causally related to the ambulance, or the 'damaged' pole and car.
6. Where a driver attempts to drive into a pole it may be reasonably foreseeable that those in the immediate vicinity could be affected by such a distressing event. However, there is nothing inherent in the nature of such an event which suggests that the impact would be likely to continue to be distressing to a person who came upon the scene after the victim had already been taken away. This makes it readily distinguishable from other cases where it was foreseeable that a victim might continue to be seen by a plaintiff (eg, Pusey and Wicks). For example, in Wicks, one might readily envisage that the 'sights' a policeman might see and 'sounds' they might hear at the aftermath of a massive rail derailment might be highly distressing.
7. Thus, we do not accept that it is reasonable to require a person to have in contemplation that everyone who might happen to see an ambulance or a damaged pole and car by the roadside might suffer psychiatric injury. Such a duty could potentially extend to an indeterminate number of people, including anyone who happened to drive past the scene of an accident hours, or even days, after the accident occurred.
8. Insofar as the agreed facts indicate that the conversation with the policeman was the cause of the applicant's injury, the applicant would need to vary the preliminary question determined by the judge. The duty might therefore be refined so that it is framed by reference to those who might witness the aftermath of the event 'and be told about the event'. However, even allowing for some reformulation of the duty this does not assist the applicant. Although it might be reasonably foreseeable that, as a work colleague and friend, the applicant might be told about the event (at the 'aftermath', or otherwise) it is not reasonable to require work colleagues, or even friends, to have in their contemplation a risk of psychiatric injury that eventuates in this way.
9. The case might again be different if the applicant had adduced evidence as to the content and quality of the relationship between the parties. Thus, the case of Annetts involved the transmission of advice of the young man's death without any proximity to the scene.

However, there are two obvious important features of Annetts. First, Annetts involved a close relationship between parents and child; secondly, there was evidence about the particulars of conversations between the parents and the defendant. Such evidence was sufficient so as to enable Gummow and Kirby JJ to find that the defendant had in fact 'assumed responsibility' for the victim. By way of contrast, we do not consider that the class of 'work colleagues', or even 'friends' is comparable to that of a close family relationship. As we have already observed, the applicant also chose not to rely upon, or adduce, any cogent evidence as to the content, or nature, of her relationship with the respondent.

1. In such circumstances, we do not consider that the respondent ought to have reasonably contemplated the risk of psychiatric injury to her work colleagues, or the applicant 'in particular', who may witness the aftermath and be told about the event.
2. In coming to these conclusions, we reiterate that this case was run as a trial on the basis of exhaustive, agreed facts where counsel accepted that the judge was bound to come to a decision as to whether or not there was a duty of care.
3. In these somewhat unusual circumstances, we consider that the judge was correct to find that the applicant had simply not established the existence of the alleged duty of care.

1. While we would grant leave to appeal, the appeal should be dismissed.

1. I have had the advantage of reading in draft the judgment of Beach and Kennedy JJA. However, for the reasons that follow, I have come to the conclusion that leave to appeal should be granted, and that the appeal should be allowed in part.
2. I have reached that conclusion because I consider that the procedure adopted by the parties, under r 47.04 of the County Court Civil Procedure Rules 2018, was wholly inappropriate to determine the issue of whether the respondent owed the applicant a duty of care in the circumstances. Based on the exiguous content of the statement of agreed facts, it could not be concluded that the respondent did, or did not, owe to the applicant the duty of care pleaded in the amended statement of claim.
3. The duty of care is pleaded in the following terms:

3A. At all material times the Second Defendant was employed by the First Defendant.

3B. At all material times the Second Defendant knew that the Plaintiff had suffered psychiatric injury previously, had been prescribed antidepressant medication, and that the Plaintiff's mother had attempted suicide using a motor vehicle.

3C. At all material times the Second Defendant owed the Plaintiff a duty of care it being reasonably foreseeable to the Second Defendant that in the event that she attempted suicide using a motor vehicle supplied by the First Defendant and in the course of her employment, that the Plaintiff would be instructed and/or requested to attend the accident scene.

PARTICULARS

The Second Defendant knew from numerous conversations which she had had with the Plaintiff after the Plaintiff commenced employment with the First Defendant on 4 December 2012 that the Plaintiff had previously suffered from psychiatric injury and had been prescribed antidepressant medication and further that the Plaintiff's mother had attempted suicide using a motor vehicle.

3D. The Second Defendant knew or ought to have known that in the event she survived her attempted suicide, that once she identified her employer emergency personnel would likely contact her employer and that the Plaintiff or some other representative or representatives of the First Defendant would attend the scene of the motor vehicle accident.

3E. On 2 May 2014 the Second Defendant whilst in the course of her employment with the First Defendant did attempt suicide by driving a motor vehicle of the First Defendant into a power pole ("the accident").

3F. In the circumstances referred to in paragraphs 3A to 3E hereof, the Second Defendant owed the Plaintiff a duty of care to prevent the Plaintiff from suffering psychiatric injury at the risk of which was reasonably foreseeable to her.

1. The duty of care is thus pleaded to be based on the combined effect of two interrelated factors. First, it is pleaded as arising from the conversations, which the applicant had had with the respondent, concerning her own mental health, and concerning her own mother's attempted suicide using a motor vehicle. Secondly, it is based on the proposition that the respondent knew, or ought to have foreseen, that if she survived her attempted suicide, her employer might be contacted, and that the plaintiff or some other representative of the employer might attend the scene of the accident.
2. In the course of oral argument before the primary judge (but not on the application for leave to appeal), counsel for the applicant relied on those two factors as each constituting separate and discrete bases for the foundation of a duty of care. However, it is the combination of those two factors that is relied on in the pleading to allege that, in the circumstances, the respondent owed the applicant a duty of care to prevent her suffering psychiatric injury, the risk of which was reasonably foreseeable to the respondent.
3. If the matter were to proceed to trial, it might be expected that the applicant (and possibly other witnesses) would give evidence concerning a number of facts that would be centrally relevant to each of the two factors on which the pleaded duty of care is based. For example, it might be anticipated that the evidence would cover the following considerations, namely:

(1) The nature and severity of the applicant's pre-existing psychiatric condition, including the treatment that she had been undergoing, and the prescribed medication that she was taking for the condition.

(2) The nature of the applicant's mother's psychiatric condition, and, in particular, the circumstances in which the applicant's mother had attempted to commit suicide using a motor vehicle.

(3) The content of conversations between the applicant and the respondent in which the applicant had explained to the respondent: the nature and extent of her own psychiatric condition; the requirement that she not work on Fridays for 'self-care purposes'; her vulnerability to further psychiatric injury; her mother's attempted suicide; and the effect that that attempt had on the applicant.

(4) The nature of the relationship, which the applicant had with the respondent, and which is described (in the summary of agreed facts) as one of 'work colleagues and friends'. The evidence would concern the closeness of that relationship, and the degree to which they confided in each other about their concerns and circumstances.

(5) The circumstances of the employment of the applicant and the respondent. It is noteworthy that the employer (the first defendant) was contacted ten minutes after the respondent had attempted suicide. The applicant was then asked by her supervisor to attend the accident scene with him. In those circumstances, the applicant might adduce evidence concerning the structure of the workplace, with a view to demonstrating that it was at least reasonably foreseeable that, if the respondent did attempt to commit suicide, the applicant might be asked to attend the accident scene, as she did.

1. The bare summary of agreed facts does not (and could not) descend to the kind of detail, which it might be expected would be elicited in evidence if this case were to proceed to trial, and which would inform the question as to whether, as pleaded, the respondent owed the applicant a duty to take reasonable care not to occasion her psychiatric injury, by attempting to commit suicide by driving her vehicle into a power pole. The only facts, which are of any relevance at all, relating to that critical question, are contained in paragraphs 2 to 4 of the summary of agreed facts. Indeed, it is noteworthy that, on the hearing of this application, counsel for the applicant took the position that the facts, contained in paragraph 3, are irrelevant to the question of the existence of a duty of care.
2. The paucity of the factual basis, on which the preliminary question was to be determined, is also evident from the terms in which the preliminary question was framed, namely:

Did the second defendant (the respondent) owe the plaintiff (the applicant) a duty of care in the driving of her vehicle to avoid using it to inflict self-harm in the course of an attempted suicide (the event) which may result in psychiatric injury to her work colleagues and in particular the plaintiff who may witness the aftermath of the event.

1. That question appears to assume two relevant factual propositions, namely: first, that it was foreseeable that the respondent's attempted suicide 'may result' in psychiatric injury to her work colleagues; and, secondly, it was foreseeable that the applicant herself 'may witness the aftermath' of that event. Those underlying assumptions, in the preliminary question, further illustrate the extent to which the r 47.04 procedure was inappropriate in the present case.
2. The authorities have made it clear that caution must be exercised in seeking to determine preliminary questions of fact, or mixed fact and law, based on assumed facts, and in the absence of appropriate evidence on which to determine such questions. As the High Court explained in Bass v Permanent Trustee Company Ltd,[90] the failure, on a preliminary determination, to identify the relevant facts, or the means by which they are to be ascertained, may result in procedures that do not conform with appropriate judicial process.[91]
3. The need for such caution was particularly relevant in the present case. The procedure, adopted in this case, under r 47.04, has the effect that, in view of the negative answer by the primary judge to the preliminary question, the respondent is entitled to an order, under r 47.05, dismissing the proceeding against her.
4. Beach and Kennedy JJA have analysed the authorities relating to the question whether, in a particular case, a defendant had a duty of care to prevent occasioning psychiatric injury to a plaintiff. It is quite evident from those decisions that that question is inherently an issue of both fact and law, which is determined by reference to the specific facts and circumstances of the particular case. The question cannot, ordinarily, validly admit of a positive or negative answer by reference to a bare statement of facts, particularly one which is as sparse as the summary of agreed facts in the present case. A proper consideration of that question must necessarily depend on the kind of evidence to which I have already referred, and a detailed analysis, based on that evidence, of the principles that have been discussed in the decided cases.
5. On such a consideration, the starting point is that there is authority for the proposition that, in a case in which a plaintiff claims damages for psychiatric injury arising from the death of another person in an accident, the duty of care owed to the plaintiff is not negated simply because the defendant is the deceased person himself or herself.[92]
6. The second point, arising from the authorities, is that the circumstance that the plaintiff suffered psychiatric injury by being informed of the death, or serious injury to, another person, occasioned by the negligence of the defendant, may, in an appropriate case, be a sufficient basis for a claim for damages against the defendant for such psychiatric injury.
7. In that respect, the cases have dealt, in some detail, with the question of the existence of a duty of care to prevent psychiatric injury in circumstances in which the plaintiff neither witnessed the happening of the incident, nor its immediate aftermath. In such a case, the courts have focussed on the evidence concerning the nature and closeness of the relationship between the person, who was injured or who lost his or her life in the incident, and the person claiming damages for psychiatric injury as a consequence of the incident. Those factual issues are central to the determination of the question of the existence of a duty of care in the particular case.[93] In particular, the courts have based their decisions on the evidence concerning the relationship between the plaintiff and the injured party, and on evidence which is relevant to determining whether, in the circumstances of the case, it was foreseeable that injury to that party might occasion psychiatric injury to a person in such a relationship.
8. In a case in which the defendant, himself or herself, is the injured person, the question whether the defendant is thereby liable for psychiatric injury sustained by the plaintiff, arising from the circumstances in which the defendant was injured, would thus depend, among other matters, on the evidence concerning the nature of the relationship between the plaintiff and the defendant, and, in particular, the knowledge, by the defendant, of any particular psychological vulnerability of the plaintiff.
9. In the present case, it is therefore clear that the question, whether the matters pleaded in paragraphs 3A to 3E are sufficient to found the duty of care pleaded in paragraph 3F of the amended statement of claim, must depend upon the particular evidence adduced relating to the relationship between the applicant and the respondent, and the knowledge, which the respondent had, of matters pertaining to the applicant's psychiatric condition, her psychiatric vulnerability, and, in particular, the attempt by her mother to commit suicide using a motor vehicle. The answer to the question, whether the duty of care existed in the circumstances of this case, is essentially dependent on the content of the evidence adduced on those critical points. The procedure, provided by r 47.04 of the Rules, was entirely inappropriate to address those issues.
10. It must be accepted that that procedure was adopted with the agreement of the applicant's legal representatives. Ordinarily, in a trial, a litigant is bound by the procedural decisions made by his or her legal practitioners. However, notwithstanding the importance of that proposition, the circumstance remains that the procedure, which the applicant's legal practitioners agreed to, was not only inappropriate. It was a procedure which necessarily precluded the applicant from adducing evidence that was necessary to support the basic elements of her case against the respondent, and, in particular, that was fundamental to a determination of the issue whether the respondent owed her a duty of care.
11. In the circumstances of the case as set out in the bare summary of agreed facts, and in the absence of proper evidence to inform the question as to the existence of the duty of care, it necessarily follows that the appropriate answer to that preliminary question is that it could not be concluded that the second defendant owed the plaintiff a duty of care in the circumstances; nor could it be concluded that the second defendant did not owe the plaintiff a duty of care.
12. For those reasons, the application for leave to appeal should be granted and the appeal allowed. It should be ordered that the order of the primary judge, dismissing the applicant's proceedings against the respondent, be set aside.

[1] Her Honour published a slightly revised version of her reasons on 10 April 2024 which made no material changes to her earlier reasons: Tsiragakis v JobCo Employment Services (Ruling) [2024] VCC 407 ('Reasons').

[2] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 358 [53] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); [1999] HCA 9 ('Bass').

[4] In oral submissions, counsel used the term 'co-worker', while the term 'work colleague' was used in both the preliminary question and the applicant's written submissions. We take the two terms to be interchangeable for the purposes of this appeal.

[5] See in particular Civil Procedure Act 2010, s 7.

[9] (1970) 125 CLR 383; [1970] HCA 60 ('Pusey').

[10] [2019] QSC 7 ('Caffrey').

[11] (2000) 50 NSWLR 261; [2000] NSWCA 346 ('Lucre').

[12] [1997] SASC 6768; (1997) 70 SASR 240.

[13] (2002) 211 CLR 317; [2002] HCA 35 ('Tame').

[14] (2003) 214 CLR 269; [2003] HCA 33 ('Gifford').

[15] (1984) 155 CLR 549; [1984] HCA 52 ('Jaensch').

[16] (2015) 255 CLR 304; [2015] HCA 19 ('King').

[17] (2016) 51 VR 694; [2016] VSC 354 ('Homsi').

[19] In so doing she was referring to the 'neighbourhood test' formulated by Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580: 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.'

[21] Reasons, [64]-[66]. Although senior counsel made this concession before the judge, junior counsel appeared to resile from this in reply, consistent with his submissions before this Court.

[26] Reasons, [76]-[77], citing CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, 418 [68] (Hayne J); [2009] HCA 47.

[29] We pause to interpolate that, for the reasons we have explained already, the applicant would still fail if this was the case given she carried the onus of proof on the trial of this proceeding, as we explain further below.

[31] (2005) 222 CLR 44; [2005] HCA 15 ('Koehler').

[32] (2010) 241 CLR 60; [2010] HCA 22 ('Wicks').

[33] [1925] 1 KB 141, 157-8 (Atkin LJ).

[34] Homsi [2016] VSC 354; (2016) 51 VR 694, 708 [61] (J Forrest J); [2016] VSC 354.

[35] See DPP v Gargasoulas [2019] VSC 87.

[36] Pusey [1970] HCA 60; (1970) 125 CLR 383, 402; [1970] HCA 60.

[37] Counsel appeared to be relying on Caffrey [2019] QSC 7, [149] (Flanagan J).

[38] Citing Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 267 [25] (Mason P); [2000] NSWCA 346.

[39] Citing Jaensch [1984] HCA 52; (1984) 155 CLR 549, 570 (Brennan J); [1984] HCA 52; Tame [2002] HCA 35; (2002) 211 CLR 317, 335-6 [29] (Gleeson CJ); [2002] HCA 35; King [2015] HCA 19; (2015) 255 CLR 304, 336-7 [79]-[80] (Nettle J); [2015] HCA 19.

[40] Citing Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 371 [22] (French CJ and Gummow J); [2011] HCA 11.

[41] Citing a number of authorities including King [2015] HCA 19; (2015) 255 CLR 304, 336-7 [80] (Nettle J); [2015] HCA 19.

[42] Citing Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 267 [25], [27] (Mason P); [2000] NSWCA 346.

[43] Reported with Tame (2002) 211 CLR 317; [2002] HCA 35 ('Annetts').

[44] Ibid 332-3 [16], 335-6 [29] (Gleeson CJ), 343-4 [60]-[62] (Gaudron J), 385 [201] (Gummow and Kirby JJ).

[45] Ibid 385 [201] (citations omitted). See also Gaudron J's comments: at 343-4 [61]-[62], [66].

[46] Ibid 330 [8]-[9], 331 [12] (citations omitted).

[47] Section 30(2) of the Civil Liability Act 2002 (NSW) provides:

The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

(b) the plaintiff is a close member of the family of the victim.

[48] Wicks [2010] HCA 22; (2010) 241 CLR 60, 71 [25] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 22 (citations omitted).

[49] King [2015] HCA 19; (2015) 255 CLR 304, 322 [28]; [2015] HCA 19.

[51] Ibid, citing Annetts (2002) 211 CLR 317; [2002] HCA 35; Jaensch (1984) 155 CLR 549; [1984] HCA 52; Gifford (2003) 214 CLR 269; [2003] HCA 33; Pusey (1970) 125 CLR 383; [1970] HCA 60.

[52] King [2015] HCA 19; (2015) 255 CLR 304, 342 [103]; [2015] HCA 19.

[53] Ibid 336-7 [79]-[80] (citations omitted).

[54] Tame [2002] HCA 35; (2002) 211 CLR 317, 337 [35]; [2002] HCA 35.

[55] Homsi [2016] VSC 354; (2016) 51 VR 694, 708 [61] (J Forrest J); [2016] VSC 354 (emphasis added).

[57] Ibid 706 [50]. Cf McHugh J's comment in Tame that this distinction is not one recognised by Australian common law: Tame [2002] HCA 35; (2002) 211 CLR 317, 350 [93]; [2002] HCA 35.

[58] Homsi [2016] VSC 354; (2016) 51 VR 694, 701-6 [33]-[49] (J Forrest J); [2016] VSC 354.

[59] Jaensch [1984] HCA 52; (1984) 155 CLR 549, 569-70; [1984] HCA 52.

[62] Homsi [2016] VSC 354; (2016) 51 VR 694, 703 [41] (J Forrest J); [2016] VSC 354 (emphasis added). See also his Honour's discussion at [47].

[63] Tame [2002] HCA 35; (2002) 211 CLR 317, 394 [225]; [2002] HCA 35.

[64] Jaensch [1984] HCA 52; (1984) 155 CLR 549, 567; [1984] HCA 52.

[66] Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 266 [17]; [2000] NSWCA 346.

[68] [1991] UKHL 5; [1992] 1 AC 310.

[69] Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 267 [27]; [2000] NSWCA 346.

[70] Macquarie Dictionary (9th ed, 2023) 'bystander'.

[71] See also Pusey [1970] HCA 60; (1970) 125 CLR 383, 404 (Windeyer J); [1970] HCA 60.

[72] Jaensch [1984] HCA 52; (1984) 155 CLR 549, 570 (Brennan J); [1984] HCA 52.

[73] See Caffrey [2019] QSC 7, [101]-[102], affd AAI Ltd v Caffrey [2019] QCA 293; (2019) 3 QR 88, 96-7 [31] (Sofronoff P, Philippides JA agreeing at 97 [34], McMurdo JA agreeing at 97 [35]); [2019] QCA 293 ('AAI').

[74] Jaensch [1984] HCA 52; (1984) 155 CLR 549, 608; [1984] HCA 52.

[77] See Gifford (2003) 214 CLR 269, 290-1 [52] (Gummow and Kirby JJ); [2003] HCA 33.

[78] See, eg, Caffrey [2019] QSC 7, affd AAI (2019) 3 QR 88; [2019] QCA 293; Wicks (2010) 241 CLR 60; [2010] HCA 22; Pusey (1970) 125 CLR 383; [1970] HCA 60.

[79] Jaensch [1984] HCA 52; (1984) 155 CLR 549, 569 (Brennan J); [1984] HCA 52.

[80] Quoted in Pusey [1970] HCA 60; (1970) 125 CLR 383, 393; [1970] HCA 60.

[81] Ibid 389 (Barwick CJ), 391 (McTiernan J), 393 (Menzies J), 404-5 (Windeyer J), 411 (Walsh J).

[83] Wicks [2010] HCA 22; (2010) 241 CLR 60, 73 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 22 (citations omitted).

[84] Jaensch (1984) 155 CLR 549; [1984] HCA 52; King (2015) 255 CLR 304; [2015] HCA 19.

[85] Annetts (2002) 211 CLR 317; [2002] HCA 35.

[86] King [2015] HCA 19; (2015) 255 CLR 304, 337 [81]; [2015] HCA 19.

[88] Consistent with the way the matter was approached by both parties, the standard for appellate view is the 'correctness standard': see Moore v The King [2024] HCA 30; (2024) 98 ALJR 1119, 1124 [14]-[15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, 869 [28] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.

[89] Wicks [2010] HCA 22; (2010) 241 CLR 60, 73 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 22.

[90] (1999) 198 CLR 334; [1999] HCA 9.

[91] Ibid 358 [53] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); see also Jacobson & Ors v Ross [1995] VicRp 24; [1995] 1 VR 337, 341 (Brooking J); Attia v British Gas PLC [1987] EWCA Civ 8; [1988] 1 QB 304, 313 (Dillon LJ), 321 (Bingham LJ); Lonrho PLC v Fayed [1992] 1 AC 448, 470 (Lord Bridge); Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority & Anor [1995] FCA 1188; (1995) 129 ALR 401, 416-417 (Spender, Einfeld and Tamberlin JJ).

[92] FAI General Insurance Co Ltd v Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 263 [10], 265 [16] (Mason P, Meagher JA agreeing at [35] and Giles JA agreeing at [36]); see also AAI Ltd v Caffrey [2019] QCA 293; (2019) 3 QR 88, 95 [25]-[26] (Sofronoff P, Philippides JA agreeing at [34] and McMurdo JA agreeing at [35]); [2019] QCA 293.

[93] See, for example, Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 555 (Gibbs CJ), 563, 566, 572, 578 (Brennan J), 579, 584-6 (Deane J), 613 (Dawson J); [1984] HCA 52; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 275-277 [5]-[12] (Gleeson CJ), 281 [23], 288-9 [46]-[49] (McHugh J), 300 [85]-[89] (Gummow and Kirby JJ), 304 [98], 305 [103] (Hayne J); [2003] HCA 33; King v Philcox [2015] HCA 19; (2015) 255 CLR 304, 332 [29] (French CJ, Kiefel and Gageler JJ); 336-339 [79]-[89] (Nettle J); [2015] HCA 19.