No liability for PTSD after viewing dead body

By Kate Tilley

The NSW Court of Appeal has overturned a negligence finding against the employers of a cleaner who viewed a dead body in the shopping centre where he worked.

Andrew Hodson was employed by labour hire company Hurex and regularly worked the afternoon shift at the Corrimal Shipping Centre, north of Wollongong, NSW, operated by the host employer, Lederer Group.

On the morning of 26 October 2020, an elderly man walking across the centre’s loading dock was killed when he was run over by a semitrailer.

Mr Hodson’s colleague, Josh Brydon, who worked the morning shift, went to the scene and was severely traumatised.

Lederer employee Sonja Necovski called Mr Hodson and asked him to come to work early because there had been a fatality and Mr Brydon could not continue his shift.

Mr Hodson’s statement of claim alleged he met Ms Necovski at the loading dock and the body, with severe head injuries, was visible on the ground.

After removing Mr Brydon from the scene and arranging for him to be taken home, Mr Hodson alleged he was directed several times to return to the accident scene.

Fatality flashbacks

Mr Hodson sought medical help because he was experiencing anxiety, helplessness and other psychiatric symptoms and having daily flashbacks to the fatality. He stopped work in May 2021 and then saw a psychiatrist, who prescribed medication for symptoms of post-traumatic stress disorder and additional medication to assist with sleep and loss of appetite.

He experienced panic attacks when driving near trucks and was emotional, crying several times a week.

At the District Court trial, Judge William Fitzsimmons found neither Hurex nor Lederer gave Mr Hodson instructions on how to deal with any medical emergency or catastrophic event that might occur while cleaning the shopping centre.

He found both parties owed Mr Hodson a non-delegable duty of care requiring them to take reasonable care to avoid a foreseeable risk of injury.

Hurex argued the injury was caused by Ms Necovski’s negligence in failing to direct Mr Hodson not to go to the accident scene, or by Mr Hodson’s own independent actions.

Judge Fitzsimmons was satisfied Mr Hodson’s post-traumatic stress disorder (PTSD) was caused by Lederer’s negligence, but that did not absolve Hurex of liability.

Emotional fragility

“While the evidence is insufficient to establish that Lederer knew or ought to have known [Mr Hodson] had an underlying disposition to react adversely if he were to witness a traumatic incident, it did demonstrate that [he] was subject to emotional fragility,” he said.

It was “reasonably foreseeable” that “a person of normal fortitude might suffer a recognised psychiatric illness”.

Judge Fitzsimmons apportioned liability at 15% for Hurex and 85% for Lederer. He assessed Mr Hodson’s contributory negligence at 10%.

He awarded damages against Lederer of $597,916 and against Hurex for $472,793.

In the Appeal Court, Justice Julie Ward, with whom Justices Mark Leeming and John Basten agreed, found Lederer did not owe a duty of care to Mr Hodson. She said Ms Necovski, as Lederer’s agent, could not have foreseen that a person with normal fortitude might suffer a psychiatric injury if confronted with the scene of the accident.

“At no stage could Mr Hodson see the body, which was covered at all material times, nor was it clearly established that he could sense a ‘smell’ emanating from the deceased.”

Limited exposure

Justice Ward said although 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. There was no reasonable probability that Mr Hodson’s limited exposure would cause him to suffer psychological injury.

Justice Ward said expert medical evidence on which Judge Fitzsimmons had relied was based, among other things, on an erroneous assumption Mr Hodson had actually seen the deceased’s injuries and an unproven assumption he had been repeatedly exposed to the scene.

The Appeal Court also found it was not reasonably foreseeable by Hurex, which had no control of the centre and was not responsible for giving day-to-day instructions to Mr Hodson, that he might suffer psychiatric injury if not directed by Hurex not to attend a significant incident at work.

“The suggestion that it ought to have been foreseen that a person of normal fortitude, arriving at a scene where there were emergency vehicles, a covered body (indicating an actual death) and a distressed colleague, might suffer a psychiatric injury does not accord with common experience.”

Justice Ward said the evidence did not explore whether the PTSD and associated major depressive adjustment disorder could have been triggered by what Mr Hodson saw in the CCTV footage he viewed a few days later, as opposed to what he actually saw.

She said a difficulty for Mr Hodson’s case was that he “disavowed any reliance” on viewing the CCTV footage. He had failed to establish the foreseeability of the accident triggering a recognised psychiatric illness.

Mere attendance

Ms Necovski had asked Mr Hodson to come to the centre and, while she didn’t specifically tell him not to come to the scene, there was no breach of the duty of care as there was no reasonable probability his “mere attendance” at the dock would cause him to suffer psychological injury.

Although he walked closer to the covered body to talk to Mr Brydon, there was no reasonable probability that if Ms Necovski failed to direct him not to go to Mr Brydon he would suffer a psychological injury. The CCTV footage showed that, when he was with Mr Brydon, Mr Hodson could not have seen the body.

Justice Ward said two medical experts noted that Mr Hodson was uncertain about what he had seen. Others had assumed he had actually observed the horrific injuries the deceased had suffered.

“Common sense suggests that seeing first-hand the blood and gore would be more traumatic than simply seeing a sheet covering what would be assumed to be a deceased body,” Justice Ward said.

Manifestly inconsistent

In additional comments on their decision, Justice Leeming said Mr Hodson’s “limited observations on the day of the accident were manifestly inconsistent with the accounts given to psychiatrists”.

“The fatal flaw in the underlying premises of the medical opinions prevented [Mr Hodson] relying on that evidence to demonstrate a causal connection between his psychological state … and the incident. His claim against both defendants should have failed on that basis.”

Justice Leeming said Ms Necovski was required to deal, among other things, with Mr Brydon’s distress. No other administrative assistance or security staff were available at the time.

She had asked Mr Hodson to support Mr Brydon and remove him from the scene. Mr Hodson arrived about 40 minutes after the accident occurred, after paramedics had put a sheet over the deceased’s body, and while other steps were being taken to shield the public.

“There was no shred of evidence to suggest Ms Necovski … behaved otherwise than entirely reasonably and with due attention to [her] responsibilities. The suggestion that Ms Necovski (and therefore Lederer), let alone Hurex, failed to act appropriately or failed to anticipate the need to take some step which was not taken, defies common sense,” Justice Leeming said.

Lederer Group Pty Ltd v Hodson [2024] NSWCA 303 (18 Dec 24)