Howell v State Rail Authority of NSW S6/1997 [1997] HCATrans 311 (3 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S6 of 1997

B e t w e e n -

GEOFFREY CLARENCE HOWELL

Applicant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 1997, AT 10.57 AM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR J.G. STEWART, for the applicant. (instructed by Gibney & Gunson)

MR M.J. NEIL, QC: May it please the Court, I appear with my learned friend, MR P.R. STERNBERG, for the respondent. (instructed by Baldock Stacy & Niven)

BRENNAN CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, this application arises out of a case involving a ghastly occurrence at Table Top, just outside Albury, in early December 1993. The XPT train from Sydney was travelling at 162 kilometres an hour when it struck a woman who committed suicide by lying on the rails in front of it. The body of the victim was dispersed in something like 42 body parts over a distance of 350 metres.

The applicant was the assistant station master at Albury and, in accordance with emergency instructions, he proceeded to the scene. If I could just give your Honours a map which comes from the railway documents and which was reproduced in the appeal book but, unfortunately, not in the application book. The plaintiff, the applicant, came to the Fallon Street crossing, which is on the right of the map. The XPT had come to rest at the point which is marked "XP2005" 1.65 kilometres past the point of impact. The applicant, knowing that there had been a fatality, a single fatality, then walked with police from that point back to the left to the point just above the word "embankment" which was the point at which the woman had been struck. The hatched part to the right is the 350 metres along which body pieces were strewn.

At page 3 of the application book there appears, in the judgment of the learned trial judge, the emergency direction under which the applicant was operating and by which he was bound.

"As soon as possible after an incident has occurred in which an employee or member of the public is injured or fatally injured an employee must be placed in charge of the scene of the incident. This employee must supervise the transfer of any injured persons or removal of the body and if necessary must protect the site."

The learned trial judge found that it was in his obedience to that instruction that the applicant walked with the police from the position where the XPT had stopped back to the point of the initial incident.

As they walked along the line with police torches they threw up body parts, bones, a severed hand. The applicant, within a very short period of time, developed a post-traumatic stress disorder of such severity that a highly qualified Melbourne psychiatrist, Dr Sime, who had special knowledge in the area of post-traumatic stress disorders, said that on a scale of one to ten this man was a ten and said that, in his view, he would never be employable again. The applicant was then, I think, 39 at the time of the accident.

He sued the respondent and essentially made three claims which are set out in our submissions and in the judgment of the Court of Appeal, but the one which failed, and the one which is pursued in this Court, is that it was negligent of the State Rail Authority to put him in the position where he was exposed to scenes of such extreme horror when it was unnecessary that that be done. That it was foreseeable that such exposure would lead to him suffering from the condition which he does, and did, was found by the trial judge, was accepted by the Court of Appeal and, indeed, was not seriously challenged. It could not be seriously challenged because there were trauma debriefing procedures laid down by the State Rail Authority for people who had been exposed to body parts or serious injuries and so it followed that they perceived and that they foresaw that psychological consequences would flow.

The trial judge found for the plaintiff on the basis that the post-trauma counselling, which was provided, was inadequate and late. He found against the plaintiff on the basis of the major claim which had been made which was that, in the circumstances, he ought not to have been exposed as he was. The Court of Appeal upheld the decision of the trial judge on that ground but on the ground upon which the trial judge found for the plaintiff, that is that he would recover a full verdict because of the failure to counsel him properly afterwards, the Court of Appeal ordered a new trial because there was evidence that, even with prompt counselling, he would still have been affected by the post-traumatic stress disorder. So the Court of Appeal ordered a trial to disentangle that part of his condition which was the result of the failure to properly counsel him and that part of his condition which he would have had in any event.

TOOHEY J: But the order of the Court of Appeal was that there be a new trial on the issue of damages.

MR TOOMEY: Yes, your Honour, but with a direction, as I read it, your Honour, to the trial judge on the new trial that there be an assessment of the competing contributions because his Honour had taken the full damages of the plaintiff and awarded them to him. He had not discounted them for the possibility that even had counselling been prompt and proper, that he might still have suffered the post-traumatic stress disorder.

TOOHEY J: What limitations do you say would be or are imposed upon the trial judge, or the judge before whom the assessment of damages will now come, by reason of what was said in the Court of Appeal's judgment?

MR TOOMEY: It is a difficulty, but I think that one limitation which would be imposed would be that it would not be open to the trial judge, paying due deference to the precedential value of the Court of Appeal's judgment, to award full damages. He would have to award less than the full damage suffered by the plaintiff.

TOOHEY J: Can you take us to the passage in the Court of Appeal's judgment, Mr Toomey, from which you draw that conclusion?

MR TOOMEY: Yes, your Honour. At page 56 at line 31:

The appellant submits that his Honour erred in that, having found negligence in the provision of post-trauma counselling, he assessed damages as though that negligence had caused the disorder itself.

There is no doubt in my mind that the evidence concerning the effect of negligent post-trauma counselling and de-briefing enabled his Honour to conclude that the respondent's disorder was much more severe than it would have been if reasonably careful treatment had been provided. On the other hand it was not open, in my opinion, to his Honour to conclude that that negligence caused the condition of which the respondent suffered. I have already quoted a passage from the evidence of Dr Sime which, I think, makes that clear. At another stage in his evidence Dr Sime said:

"I would have regarded this particular case as so severe that it could well have gone on despite the treatment. I would say I think though that with the type of treatment I am talking about we could have modified it, and I am fairly sure about that. The work cases are very good ones which we tackle and there was good recovery."

The limited effect of the negligent post-trauma counselling was so well established by the evidence that Mr Toomey did not attempt to suggest that it was open to his Honour to assess the damages upon the basis that the treatment caused, or materially contributed to the onset of the condition. Rather he sought to meet the difficulty by urging the other heads of negligence upon the court.

And then his Honour goes on to consider whether his Honour did assess damages on the basis that the trauma counselling delay was wholly responsible and he arrived at the conclusion that it was. Then he said, at 47:

In these circumstances the assessment of damages cannot stand.

The court then went on to order, among other thing, order (4):

A new trial on the issue of damages -

We say that the necessary inference from what preceded is that - on the basis that a full assessment of damages would be in error.

BRENNAN CJ: Yes, although the failure to give post-traumatic counselling has to be evaluated in the context of a person who had not had pre-traumatic counselling.

MR TOOMEY: That was another of our points, your Honour.

BRENNAN CJ: I can imagine it will be in the future.

MR TOOMEY: Yes, your Honour. Well, it was in this case, your Honour. The evidence, I have to say, was not terribly strong but there was evidence which was accepted by his Honour that pre-trauma counselling can protect against post-traumatic stress disorder. The particular passage is reproduced in our submissions at application book 73, your Honours. Your Honours will see at line 19 the learned trial judge said on this point, that is the failure to provide pre-trauma training:

I would on this point be disposed to accept the views of Miss Morrow, rather than those of Dr Bryant or Dr Sime, which I reject.

We then reproduce what Miss Morrow said:

In relation to your third question namely whether it was reasonable to provide pre-trauma counselling in order to prepare the plaintiff for possible incidents at work, I agree that the provision of pre-trauma training can be a significant factor in ameliorating the development of PTSD. However, difficulties would be encountered in providing such training to personnel such as Mr Howell given the overall probability of their experience incidents of such a particularly traumatic nature. Consequently while it is probable that such training can ameliorate symptoms it is perhaps not reasonable to expect the provision of such training given the probability of such events occurring. Given the low probability of such incidents occurring the question arises as to when it would be reasonable for this training to be provided and consequently how useful it would be given the potential time lag between training and incident.

Well, our answer to that is that his Honour accepted that and he accepted accordingly, or should have accepted and should have incorporated it in his reasoning, that the pre-trauma training could have helped to ameliorate the condition of the plaintiff, which is pitiable.

TOOHEY J: That opinion really bears upon the cause of action, does it not, or perhaps a particular of negligence?

MR TOOMEY: Yes, your Honour.

TOOHEY J: Does it conclude the matter as to damages, as to how damages are to be assessed? I just have difficulty in seeing how these matters can be segregated.

MR TOOMEY: We also argued, your Honours, that in fact the matter ought to be approached by the Court of Appeal on the basis that you had a man exposed to a particularly horrific circumstance, not only exposed to it but required by his work instructions to expose himself to it, in circumstances where ther e was no pre-trauma counselling which would have ameliorated any possible result and where the post-trauma counselling was delayed. We said that the whole three matters ought be taken into account as being a basis for a full verdict for the plaintiff. That argument is not dealt with by the Court of Appeal. If I may say so, we advanced that argument because we saw, with respect, the very difficulty that your Honour Justice Toohey sees, that at least the pre- and post-trauma counselling - it is very difficult to separate one from the other.

Can I just turn to our first argument, your Honours. The argument that it was unnecessary and negligent of the respondent to expose the plaintiff to the danger of the post-traumatic stress disorder in the first place. The argument was set out by Mr Justice Clarke who gave the judgment of the Court, which was concurred in by the other two judges, and on this point he starts at page 52 line 20:

The respondent has contended that his Honour was wrong to reject his claim that the employer should have laid down a procedure that would have enabled him to go to the scene, protect the railway and yet be kept clear of the body parts and the upsetting visions along the railway line. In his written submission the argument is put forward that, where the locus could have been secured without the necessity of the respondent or anyone other than trained personnel, such as ambulance and police, attending the scene it was negligent to require untrained and unprepared staff to involve themselves in horrific scenes such as those witnessed by the respondent. The same argument was developed orally during the hearing although I did not apprehend that the respondent's counsel, Mr Toomey QC, contended that the appellant was negligent to send someone to the scene itself. As I understood the argument it really had two limbs. The first was that there should be a standing procedure which enabled railway personnel to attend at the scene of an accident in circumstances which protected them from the disturbing sights which might be there while at the same time allowing them to carry out duties in the protection of the appellant's interests. The second limb was that in the particular circumstances of this case there was negligence in allowing the respondent to move along the line where the body parts were strewn. His Honour rejected that submission having regard to:

"... the plaintiff's background and his employment position ... the magnitude of the risk and to the competing obligations -

et cetera. Then his Honour sets out the emergency instructions. Then his Honour went on to say:

There can be no doubt that in the operation of a railway system there will from time to time be fatalities. It is common knowledge that persons commit suicide by jumping in front of trains and there are, on occasion, accidents at level crossings. The appellant is no doubt obliged, when such an incident has occurred, to take steps to investigate the incident and to protect its interests and its property. Such action would, as it seems to me, require that the appellant send personnel to the scene of the accident. In some incidents it is conceivable that those personnel could carry out their functions without seeing dismembered bodies, in others they may not be able to do that. Although I would accept that it was foreseeable that if an employee was exposed to the sight of a dismembered body that employee might suffer from Post Traumatic Stress Disorder, in the absence of evidence demonstrating the nature of a general instruction which could have been given to employees throughout the State to lessen the risk to employees attending the scene of a fatal accident of suffering from that disorder I am unable to say that what was done in this instance in the way of written instructions has been demonstrated to fail the test -

Now, may we say, your Honours, that we say that his Honour erred there in requiring a general instruction because what any employee is entitled to from his employer is an instruction which will cover his case. May I also say that we argued in the Court of Appeal that, indeed, it would be simple to draft a general instruction and if I may hand up to your Honours what we suggest would be a general instruction which would cover the case.

You see, the poison, we say, your Honours, in the direction as reproduced at page 3 line 15 is that "an employee must be placed in charge of the scene.....and must supervise the transfer of any injured persons or removal of the body".

BRENNAN CJ: What is the special leave point, Mr Toomey?

MR TOOMEY: Your Honour, I thought your Honour might ask me that.

BRENNAN CJ: I should have done so some time ago.

MR TOOMEY: I hoped your Honour had forgotten. Your Honour, we would say that the statement of Mr Justice Clarke, that in the absence of a general instruction, is an error of very considerable importance. The SRA is the largest employer in the State. If it can be said that no employee is entitled, where there is a situation of danger, to have an instruction which protects him unless there can be a general instruction, that is a very considerable compromise on the rights of employees as declared by this Court.

Your Honours, can I say very shortly - I see the red light - if I can have 10 seconds. The alternatives, we say, are obvious. This is one of those cases where common sense suggests - without the necessity for expert evidence, all of which in any event was in the knowledge and control of the respondent - that it was not necessary that an untrained, unprepared man had to be exposed to these body parts. There could be no prospect of damage to railway property because the XPT was on the lines 1.6 kilometres away. It had not been derailed. There could have been no damage. May it please your Honours.

BRENNAN CJ: We need not trouble you, Mr Neil.

This distressing case turns solely on issues of fact which might bear upon the assessment of damages. The Court of Appeal has ordered that there be a new trial on the issue of damages and special leave is sought to establish the factual bases on which damages should be assessed and thereby to increase the assessment made by the trial judge and to avoid the possibility of their reduction on the new trial. However, these are questions simply of fact and raise no legal issue of general importance which warrants the grant of special leave. For that reason special leave will be refused.

MR NEIL: I ask for costs.

BRENNAN CJ: Do you have anything to say about that, Mr Toomey?

MR TOOMEY: No, your Honour.

BRENNAN CJ: It will be refused with costs.

AT 11.20 AM THE MATTER WAS CONCLUDED