Lederer Group Pty Ltd v Hodson [2024] NSWCA 303 (Link to Caselaw)
With thanks to Justine Anderson for drawing attention to this decision. Although the claim arose from events in the course of employment, the decision is of interest for its reference to section 32 of the Civil Liability Act 2002 (NSW) – mental harm duty of care.
In late 2020 there was a fatal accident in an external loading dock at the Corrimal Shopping Centre (Centre) in New South Wales, when an elderly man was run over by a truck. By the time Mr Hodson arrived at the scene, paramedics had already covered the deceased’s body with a white sheet and, when Mr Hodson went over to his colleague there was no direct line of sight to the covered body. However, when Mr Hodson went to leave the area with a colleague, a police officer called them over and at that stage there was a line of sight to the covered body (some metres away). From the CCTV footage it was clear that at no stage when Mr Hodson was at the scene could he have actually seen the deceased’s injuries as the body was covered by the white sheet.
On appeal the court held (Ward P, with Leeming JA and Basten AJA agreeing) that the primary judge had erred in finding that Lederer owed Mr Hodson a duty of care. As to s 32 of the Civil Liability Act, Ms Necovski, being the agent of Lederer who was responsible for overseeing the Centre from an operational and business perspective, could not have foreseen that a person with normal fortitude might suffer a psychiatric injury if confronted with the scene of the accident (i.e., the presence of a body covered by a white sheet, emergency vehicles and a distressed colleague. At no stage could Mr Hodson see the body of the deceased, which was covered at all material times, nor was it clearly established that he could sense a “smell” emanating from the deceased. Nor was Ms Necovski aware of Mr Hodson having the kind of vulnerability identified by Gaudron J in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35.
It was not open on the evidence to find that Mr Hodson had suffered a “sudden shock” in circumstances where he was advised in advance as to the nature of the incident and the distress of his colleague: [171]-[180] (Ward P); [280]-[281] (Leeming JA); [305]-[315] (Basten AJA).
Though the risk of harm was correctly found to be not insignificant, Lederer (through Ms Necovski) did not breach the duty of care owed to Mr Hodson in failing to direct him not to attend the scene of the accident. There was not a reasonable probability that the limited exposure of Mr Hodson to the scene would cause him to suffer psychological injury: [204]-[213] (Ward P); [283] (Leeming JA); [316]-[321] (Basten AJA).
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