By Stuart Eustice, Partner and Lidia Martinez Chavez, Lawyer

Warning: This article contains descriptions of self-harm. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.

Background

Stelliani Tsiragaki (the Applicant) and Amy Mallet (the Respondent) were work colleagues employed by Jobco employment Inc. On 2 May 2014, the Respondent attempted suicide by driving her vehicle into a power pole. The Applicant did not witness the crash, however, was asked by her supervisor to accompany him to the scene approximately 40 minutes later. By the time they arrived, emergency services had removed the Respondent. The Applicant had observed the damaged car and power pole and was informed by a police officer at the scene the collision was likely intentional.

Preliminary Issue at Trial

The Applicant commenced proceedings against her employer and the Respondent, alleging the Respondent owed her a duty of care to avoid causing psychiatric harm.

The matter proceeded in the County Court before Judge Clayton on a preliminary question agreed between the parties:

Did the [Respondent] owe the [Applicant] a duty of care in the driving of her vehicle to avoid using it to inflict self-harm in the course of a suicide or an attempt at suicide (the event) which may result in psychiatric injury to her work colleagues and, in particular the [Applicant], who may witness the aftermath of the event.

In her ruling, Clayton J concluded that no such duty of care existed. Her Honour considered whether the case could fall within established categories where courts have recognised duties for psychiatric injury, such as close familial relationships, proximity to traumatic events, or rescuers. The Court found the Respondent did not fall within any of these categories. She had not witnessed the incident, arrived approximately 40 minutes later, and the scene was not objectively traumatic.

Her Honour emphasised that reasonable foreseeability of psychiatric injury alone is insufficient; something more, such as proximity, a close relationship, or direct involvement, is required. Her Honour reasoned that imposing such a duty would potentially expose individuals to liability to an indeterminate class of persons.

Accordingly, the claim was dismissed.

Decision on Appeal

The Applicant appealed on the grounds the trial judge erred in finding that no duty of care was owed.

Drawing on Tame v New South Wales[1] and Wicks v State Rail Authority (NSW)[2], the Court reiterated that reasonable foreseeability is a necessary but not sufficient condition for the recognition of a duty of care. The Court also referred to Jaensch v Coffey,[3] where a duty was found in favour of a police officer’s spouse who saw her husband in hospital, and Mount Isa Mines v Pusey,[4] involving coworkers who directly witnessed horrific injuries. In applying these principals, the Applicant had arrived long after the event, was not exposed to injury or trauma, and had no special personal relationship with the Respondent beyond their relationship as coworkers.

Significantly, the Court also rejected the notion that coworker status alone can ground a duty of care. Although Homsi v Homsi [5] was raised, where a mother sued her son for negligently causing psychiatric harm, the Court found that familial relationships, were essential to the duty in that case. To recognise a duty to coworkers witnessing the aftermath of a self-inflicted injury would, the Court warned, risk imposing liability to a vague and indeterminate class of people, contrary to the principles articulated in King v Philcox.[6]

Ultimately, the appeal was dismissed.

 

[1] (2002) 211 CLR 317.

[2] (2010) 241 CLR 60.

[3] (1984) 155 CLR.

[4] (1970) 125 CLR 383.

[5] (2016) 51 VR 694.

[6] (2015) 255 CLR.