- Unreported Judgment
 QSC 230
SUPREME COURT OF QUEENSLAND
Oram v BHP Mitsui Coal Pty Ltd & Anor  QSC 230
BHP COAL PTY LTD
Supreme Court of Queensland
19 September 2014
8 September 2014
Unless submissions are received on or before 4pm on 26 September 2014 the orders will be:
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURY MATTERS – GENERALLY - where the applicant wishes to claim for damages for psychiatric injury against the respondents – where the limitation period for the claim has expired – whether a prima facie case shown – whether the respondents would suffer prejudice at trial - whether time should be extended
Limitation of Actions Act 1974 (Qld), s 30, s 31
Blunden v Commonwealth of Australia  ACTSC 123 cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541;  HCA 25 applied
Cartledge v E Jopling & Sons Ltd  AC 758;  1 All ER 341 cited
Chester v Waverly Corporation (1939) 62 CLR 1;  HCA 25 cited
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 cited
Clarkson v Modern Foundries Ltd  1 All ER 33 cited
Coleman v BHP Coal Pty Ltd  QCA 232 cited
Jaensch v Coffey (1984) 155 CLR 549;  HCA 52 cited
Koehler v Cerebos (Aust) Pty Ltd (2002) CLR 44;  HCA 15 cited
Lynn v Bamber  2 KB 72 cited
Martindale v Burrows (1997) 1 Qd R 243;  QSC 113 cited
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383;  HCA 60 cited
Pullen v Gutteridge, Haskins & Davey Pty Ltd  1 VR 27 cited
Purkess v Crittenden (1965) 114 CLR 164;  HCA 34 distinguished
Queensland Corrective Services Commissioner v Gallagher  QCA 426 applied
Rowe v McCartney  2 NSWLR 72 cited
Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 cited
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317;  HCA 35 applied
Stocks v Retirement Benefits Fund Board (2007) ANZ ConvR 254 cited
Watts v Rake (1960) 108 CLR 158;  HCA 58 distinguished
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514;  HCA 55 cited
Williams v Milotin (1957) 97 CLR 465;  HCA 83 cited
Wood v Glaxo Australia Pty Ltd  2 Qd R 431;  QCA 114 cited
Wyong Shire Council v Shirt (1980) 146 CLR 40;  HCA 12 cited
C Newton for the applicant
RJ Douglas QC for the respondents
Hall Payne Lawyers for the applicant
HWL Ebsworth Lawyers for the respondents
- McMeekin J: On 7 August 1994 the third of the Moura Mine disasters, as they have become known, occurred. Eleven men died in an explosion that occurred in the mine. The applicant here, Colin Oram, was supposed to go down the mine that day but did not. Another man took his place and died. Nearly 16 years later Mr Oram was diagnosed as having a psychiatric illness – “a Major Depressive Disorder with symptoms seen in Post Traumatic Stress Disorder”.
- On 12 July 2011 Mr Oram filed a Claim and Statement of Claim seeking damages from his then employer - who was either BHP Mitsui Coal Pty Ltd or BHP Coal Pty Ltd (collectively “BHP”) - for the psychiatric illness. He attributes the onset of the illness to the disaster and its sequelae and to the lack of any appropriate care afterwards.
- This is an application to extend the limitation period. The assumption underlying this application is that he is long out of time - by about 14 years. Section 11 of the Limitation of Actions Act 1974 (Qld) (“the Act”) provides that proceedings involving a claim for damages for personal injury must be brought within three years of the accrual of the cause of action.
- Mr Oram is entitled to an extension of his limitation period if he can satisfy the requirements of s 31 of the Act and if it is otherwise just to permit the extension.
- For the purposes of this application, as opposed to any eventual trial, it is not in issue:
- That Mr Oram has a psychiatric illness;
- That the illness has its genesis in the Moura Mine disaster (as it has become known) of 7 August 1994 when 11 of his workmates died;
- That there is a prima facie case shown that the respondents, or one or other of them, will be liable for the reasonably foreseeable harm caused to its employees by that disaster;
- That the limitation period within which Mr Oram was permitted to commence a proceeding for damages for that illness expired on 7 or 8 August 1997;
- That Mr Oram can demonstrate that a material fact of a decisive character was not within his means of knowledge until he received the report of Dr Ljubisabljevic, a psychiatrist, on a date after 21 July 2010 and so within 12 months of commencing his Claim;
- That the first notice that BHP had of the claim was about 18 years after the disaster;
- That subject to two matters which I am asked to determine Mr Oram would be entitled to an extension of the limitation period. Those two matters are:
- That Mr Oram cannot satisfy the requirements of s 31(2)(b) of the Act in that there is no evidence to establish the right of action;
- That it is not possible to have a fair trial of the proceedings and so the discretion inherent in s 31(2) of the Act should be exercised against him.
The Accrual of the Cause of Action
- There is a potential difficulty with the proceedings not covered by counsels’ arguments and it relates to the accrual of the cause of action. It is one that I cannot decide without the benefit of argument.
- As I mention above the parties argued the case on the basis that the limitation period expired three years after the explosion, or Mr Oram’s attendance at the mine on the day after the explosion. I am not sure that is necessarily right.
- There are two potential causes of action pleaded and they each accrued, potentially, on different dates.
- According to his Claim Mr Oram seeks damages “for negligence, breach of contract and/or breach of statutory duty”. In his Statement of Claim Mr Oram pleads that “the explosion and deaths of the miners resulted from the negligence” of BHP. There is no reliance there on any breach of contract. He pleads in the alternative that in breach of the contract of employment BHP failed to provide him with “any or any adequate counselling or psychological support, treatment or intervention” and that caused the psychological injury.
- It is well accepted that the cause of action in negligence is not complete until damage is suffered, damage is said to be “the gist of the action”: Williams v Milotin. The same rule applies in a claim for damages for breach of statutory duty – the claim is brought on the case and is not a sum recoverable “by virtue of an enactment” so as to come within s 10(1)(d) of the Act: Clarkson v Modern Foundries Ltd. That is not so in contract where the cause of action accrues on breach, not the suffering of damage: Gibbs v Guild; Lynn v Bamber.
- So it follows that for the breach of contract case Mr Oram’s cause of action was complete whenever it is shown that effective “counselling or psychological support, treatment or intervention” should have been provided – presumably long ago, but perhaps not. There is no evidence on the issue, as will be seen a point fatal to any right to an extension of the limitation period.
- However, contrary to what seems to be the assumption underlying the application, the limitation period for the negligence case does not necessarily run from the date of the explosion.
- Where the complaint is that personal injury has been suffered then the requirement that the plaintiff actually suffer damage in consequence of the breach of the duty of care is satisfied, and the cause of action accrues, when the injury sustained is “beyond what can be regarded as negligible”: Cartledge v E Jopling & Sons Ltd; Martindale v Burrows.
- Identifying when that condition is satisfied for a psychiatric injury case is not straight forward. While there are references to potential symptoms dating back to at least shortly after the explosion, I have no direct evidence on the point. However I would be surprised if Mr Oram was suffering a recognised psychiatric illness on the day of, or the day after, the explosion. I point out that it has been long accepted that the level of injury for “nervous shock” had to be more than “distress, alarm, fear, anxiety, annoyance or despondency without any recognised psychiatric illness”: Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd.
- The evidence is silent on the point as to when Mr Oram first suffered a “recognised psychiatric illness.” Given that Mr Oram maintained full employment, married and raised a family over the next 16 years it seems unlikely that he had a psychiatric illness over all of that time. That he suffered such an illness prior to its diagnosis by Dr Ljubisabljevic is plain. I note that in Blunden v Commonwealth of Australia Refshauge J rejected an argument that the cause of action in a case such as this only accrued upon diagnosis, a decision with which I respectfully agree.
- The point is, or may be, of more than academic interest.
- First, if the illness was only suffered after 12 July 2008 – and so within three years of Mr Oram issuing his Statement of Claim - then he is in time and does not need an extension of the limitation period for his action in negligence.
- Secondly, even if Mr Oram is out of time, the arguments about prejudice might be very different if the case is only, say, five years old rather than 20 years old.
- Thirdly, the onus of proof may be of importance. The onus of proving that proceedings have been commenced after the expiry of the limitation period rests with a defendant who has specifically to plead it: see Pullen v Gutteridge, Haskins & Davey Pty Ltd; Sorrenti v Crown Corning Ltd. While there is some conflict in the authorities, courts in this country have continued to follow the decision in Pullen v Gutteridge, Haskins & Davey Pty Ltd, Cigna Insurance Asia Pacific Ltd v Packer, and Stocks v Retirement Benefits Fund Board.
- When it is that Mr Oram’s feelings of guilt and his introspective brooding on the death of his work mates – if that be the cause of his illness – became more than despondency or the like and a recognisable illness is not disclosed by the evidence.
- The parties might well be agreed that whenever it was that the illness was in place it was long ago and these points are largely irrelevant for present purposes. If so that was not said expressly. I appreciate that Mr Oram asserts that he has been drinking heavily for many years and I gather that he may wish to assert that his excessive consumption of alcohol is a symptom of his psychiatric illness. He asserts “being wise in retrospect” that he “probably was depressed” at a time apparently relatively close to the accident. He also may wish to assert that his marriage breakdown is a casualty of his illness, but that is a relatively recent event - his affidavit asserts that “after having the children and over time” the relationships with his wife and children deteriorated, with separation occurring in about mid 2010. I gather that BHP might want to argue that far from being a symptom of the psychiatric illness the drinking and separation may be a cause.
- As will be seen there are gaps in the available evidence. One issue may be whether those gaps are a problem for the plaintiff in overcoming arguments on prejudice where he bears the onus, or are a problem for BHP in establishing that the proceedings are out of time, and if so by how much, where arguably it bears the onus.
- I note that the High Court has deprecated the practise of attempting to determine limitation questions in interlocutory proceedings: Wardley Australia Ltd v Western Australia.
- For present purposes I will deal with the issues raised by counsel’s arguments but leave the making of orders to a later time to give the parties a chance to consider their respective positions.
- As will be seen I have reached the conclusion that the requirements of the Act have been met but that in the exercise of my discretion the application for extension should be refused.
The Requirements of the Act
- Given the limited nature of the matters in dispute it is not necessary to detail all of the relevant provisions of the Act. The material fact of a decisive character relied on is the expert opinion obtained in mid 2010 that Mr Oram had a psychiatric condition and that its cause was linked to the Moura Mine disaster.
- That established, s 31(2)(b) of the Act is relevant. It provides:
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
- In order to satisfy the test in s 31(2)(b) of the Act an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his or her case.
- If the requirements of the Act are met a discretion to extend time is enlivened. Normally that discretion would be exercised in favour of the applicant unless there was relevant prejudice to the respondents.
Mr Oram’s case against BHP
- Mr Oram pleads in his Statement of Claim that the explosion and the subsequent deaths were caused by the negligence or breach of statutory duty of the respondents, a fact not in issue for present purposes.
- With respect to causation of his injury Mr Oram pleads the fact of the explosion at the mine; the death of his work mates and friends whom he knew well; the duties that he performed after the explosion which I detail below; and that “as a result [he] developed a psychiatric injury diagnosed as a Major Depressive Disorder with symptoms seen in Post Traumatic Stress Disorder.”
- He pleads in addition and in the alternative that the employer caused the psychiatric injury by a breach of the employment contract or by its negligence in that he was not provided with “adequate counselling or psychological support, treatment or intervention with respect to the distress the Plaintiff experienced” as a consequence of the events already referred to.
- BHP submits that it is incumbent on Mr Oram then to demonstrate the existence of evidence:
- that there was a reasonably foreseeable risk, in the circumstances pleaded, that in the absence of the exercise of reasonable care by the employer in the conduct of the mine he may suffer a recognisable psychiatric injury; and
- that the provision of counselling or psychological support, treatment or intervention would have prevented the psychological injury;
- Further, even if that can be shown, BHP argues that there is both specific and general prejudice arising from the long delay such that it is not possible to have a fair trial.
- The onus on both issues lies on the applicant.
The Aetiology of the Illness
- Mr Oram is now aged 41 years, born 20 November 1972. He started work as an underground miner at Moura in 1991, aged about 18. He was aged only 21 at the time of the disaster. An explosion occurred due to the heating of accumulated methane gas.
- Mr Oram was not at work on the day of the disaster. He had been rostered on duty but because of excessive alcohol consumption the day before he decided that he was not fit to go underground. A work mate took his place and died.
- Mr Oram knew the 11 men killed in the disaster. He knew the families of 10 of those men.
- This is not a “nervous shock” case in the sense that Mr Oram does not plead that he witnessed any horrifying scenes associated with the deaths or with the disaster more generally. To an extent he did observe its aftermath. Mr Oram pleads that he was required to work on the day after the disaster, helping in the search for the then missing men. His task was to be on “portal watch” near to the explosion site for four or five hours looking out for survivors, of which there were none. As well he closed off access roads and kept unauthorised people from entering the site. One can readily understand his anxiety and eventual grief when it was learnt that none of his work mates survived. A second explosion occurred on 9 August 1994. Again Mr Oram was not personally involved but his concern for the missing miners was exacerbated.
- Mr Oram had difficulties in the weeks, months and years following the disaster in attending to his work. He says that he became “reclusive” and commenced to drink more. Nonetheless he worked relatively normally for many years at the mine, but as a wash plant operator. He eventually married in 2002 and had children, born 5 December 2004 and 11 May 2006.
- It appears that the birth of his children triggered or exacerbated feelings of guilt that Mr Oram had at having survived when other children had lost their fathers in the disaster. He drank more, tended to stay away from home more, and hid from his wife his feelings, which he poorly understood. He had uncertified absences from his employment from time to time but no complaint was made about this by his employer until November 2013.
- In 2010 Mr Oram was admitted to a clinic at New Farm for treatment of his excessive alcohol consumption. Eventually a diagnosis was made that he had a psychiatric illness. By then he and his wife had separated and I gather from the submissions made that separation is now considered permanent.
- Dr Ljubisabljevic saw Mr Oram in 2010 at the New Farm clinic and wrote a report dated 13 July 2010 in which he offered the following diagnosis:
“Mr Oram is suffering from a complex psychiatric condition with elements of depression/anxiety that are complicated by alcohol abuse.
He initially fulfilled the diagnostic criteria for major depressive disorder and alcohol abuse. He also had some symptoms seen in the post traumatic stress disorder, such as flashbacks and nightmares, increased arousal, avoidance of thinking and talking about events from the past.”
- Mr Oram lost his position with the Moura Mine in late 2013. The identity of the employer has changed over the years but Mr Oram maintained his employment there with whoever controlled the mine. He believes that he lost his employment because of issues with his uncertified absences which in turn were brought about by his psychiatric condition. He has managed to get work with a labour hire company and now works on a construction site driving various plant equipment. For present purposes it can be accepted that Mr Oram has suffered a significant loss of income and earning capacity sufficient to justify a damages claim.
The Liability of an Employer for Psychiatric Harm
- An employer is not liable for all and every injury suffered by an employee which can be shown to have been caused in some way by engagement in the employment duties. Koehler v Cerebos (Aust) Pty Ltd is a graphic example of that proposition.
- Ms Koehler failed at the threshold – she did not establish that there was a foreseeable risk of psychiatric injury to her in the events found. There the cause of the psychiatric injury was an excessive workload. Ms Koehler claimed damages for the consequences of being required to carry out the very duties that she had agreed, by her contract of employment, to carry out. However the problem that faced Ms Koehler does not arise here. No aspect of the content of the duty of care here appears to me to require any particular examination. Here Mr Oram seeks to make his employer liable for the consequences of an event (an explosion in a mine) that occurred because the employer was negligent in failing to provide a reasonably safe workplace. The question is whether the law provides a remedy in the circumstances prevailing here for psychiatric injury.
- The plaintiff’s case on liability descends to two propositions. First, that the employer’s liability for the consequences of the explosion extends to psychiatric injury to employees who subsequently learned of the deaths of the co-workers, who ought in the normal course have worked that day, who therefore bore the “guilt”, to use Mr Oram’s word, of knowing that a man died who had taken his place, and, if it be relevant, who attended work the following day and assisted as directed around the mine. Notably Mr Oram was unrelated to those who died, was not present at the mine when the explosion occurred, and did not witness any event that might be considered “shocking”.
- Secondly, that the employer was under an obligation to provide the plaintiff with “counselling or psychological support, treatment or intervention” after the event.
- As to that second point, it is not said that Mr Oram’s superiors in BHP’s employment were aware of any particular fact that would have alerted them to the need for the provision of such treatment. It is not irrelevant that that need went unrecognised by Mr Oram for 16 years. BHP argues that a necessary step in the chain of proof is evidence that a reasonable employer would have realised the need for the provision of such treatment and further that the provision of such treatment would, not could, have avoided the injury. That is plainly right: see Queensland Corrective Services Commissioner v Gallagher. Mr Oram did not point to the existence of evidence to establish either that an employer ought to have foreseen that someone in the plaintiff’s position needed such treatment or that it would, on the balance of probabilities, be efficacious. He cannot then succeed on this ground.
- Mr Oram’s case turns then on the first point. Two submissions are made by BHP. The first is that while it was readily foreseeable that those at work might be injured by the employer’s failure to provide a safe place of work, it was not foreseeable that an employee not at work would be injured, or would be injured in this way ie suffer a psychiatric illness. The second is that in truth what Mr Oram claims damages for is a psychiatric injury consequent not upon a breach of duty by the employer but upon his own antecedent conduct namely, not attending work on the day of the incident, and his neurotic reaction to his consequent survival - “survivor guilt” - and that is not compensable, citing Rowe v McCartney.
- BHP’s arguments raise the fundamental issue of what it is that an employee must prove to establish liability in the employer for psychiatric injury. They also raise the issue of when it is that these questions must be addressed.
- I mention that latter point as the time for judgement has not yet arrived. If Mr Oram has an arguable case in an area of law which is not necessarily settled – and the law relating to an employer’s liability to pay compensation for psychiatric illness suffered by its employees is not - then I would be slow to prevent his claim proceeding on fine arguments as to what is or is not foreseeable and what is the true cause of his illness or injury. As Fryberg J observed in Coleman v BHP Coal Pty Ltd in relation to a s 31 application: “It is not appropriate to examine the issues of law or fact which might arise with a fine toothcomb on this sort of application.”
- To take the first issue. The question of foreseeability of injury depends on the concept of reasonableness and, as Gleeson CJ remarked in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd, albeit in a discussion of the existence of a duty of care, it “defies rigorous categorisation of its elements”. Proof of such a concept does not necessarily require expert evidence, or, indeed, necessarily evidence at all. Gummow and Kirby JJ said of this issue:
“Nonetheless, questions of reasonable foreseeability are not purely factual. Expert evidence about the foreseeability of psychiatric harm is not decisive. Such evidence cannot usurp the judgment that is required of the decision-maker.”
- McHugh J made the same point:
“It is for the tribunal of fact - be it judge or jury - to determine whether the defendant ought to have reasonably foreseen that his or her conduct might cause a person of normal fortitude to suffer psychiatric injury. It is not a matter for expert evidence.”
- So did Hayne J:
“Although expert psychiatric evidence may be relevant to the inquiry about how a reasonable or ordinary person might react, it is important to recognise that the test requires reference ultimately to what the lay member of the community may be expected to foresee.”
- So the absence of any expert support for the foreseeability of the injury is neither here not there at this stage.
- In discussing the question of to whom the duty might be owed Evatt J concluded in Chester v Waverly Corporation that the duty of care to guard against psychiatric injury extended to “those who will be brought to the scene …in the course of a search to discover and rescue or aid any person who is feared on reasonable grounds to have been injured.” That precisely fits Mr Oram’s situation. Given Evatt J’s formulation it is difficult to argue that the fact that Mr Oram was not on duty at the time is, of necessity, a disqualifying factor on the foreseeability ground
- BHP argues that his attendance at work the following day was irrelevant to the formulation of the illness because it was not that exposure to the event that played any causative role. But that issue is yet to be elucidated – there is simply no discussion of it by the experts who have treated Mr Oram. It is mentioned as part of the history by Dr Ljubisabljevic and perhaps was seen by him as pertinent. Mr Oram’s self analysis of what he sees are the factors behind his illness cannot be determinative of the question – if his views suited his case rather than BHP’s then BHP would, or at least could, argue they are but the starting point – see Queensland Corrective Services Commission v Gallagher.
- However what needs to be borne in mind is that the issue of foreseeability here is not relevant to the question of whether a duty of care was owed to Mr Oram by BHP – it plainly was. He was their employee. His relationship with the deceased men came about because he and they were BHP’s employees. His guilt, if that is the mechanism by which the illness has developed, is directly the product of him being BHP’s employee. Most of the cases in this area are directed to that issue of to whom the duty might be owed. That is not in issue here. As McHugh J pointed out in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd:
“The relationship of employee and employer, for example, requires the employer to take reasonable care to avoid injury to the employee. The duty is governed by the same rules and has the same content, irrespective of the kind of injury or damage that can reasonably be foreseen. … the employer's duty of care arises from an implied term of the contract as well as from the general law of negligence. The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to protect against psychiatric injury. It simply implies a general duty to take reasonable care for the safety of the employee …. Similarly under the general law, the duty of the employer is to take reasonable care for the safety of the employee in all the circumstances of the case. It is a duty to take reasonable care to eliminate all risks of injury that can be reasonably foreseen and avoided - whether they are risks to the employee's psyche, person or property. The general law, like the law of contract, does not impose two duties on the employer - one to avoid physical injury and one to avoid nervous shock to the employee. ‘The ruling principle’, said Lord Keith of Avonholm, ‘is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle.’”
- While McHugh J’s reasoning in Tame and Annetts did not command the assent of the majority in those cases this is an unexceptional statement of basic principle governing employer/employee relations. BHP then was under that “duty to take reasonable care to eliminate all risks of injury that can be reasonably foreseen and avoided - whether they are risks to the employee’s psyche, person or property”.
- The test of foreseeability that applies is that given by Mason J in Wyong Shire Council v Shirt – the risk in question, and against which the employer must guard, must be one that is not “far fetched or fanciful”.
- It could hardly be argued, and it was not, that the deaths of a substantial number of the workmen on shift, should an explosion occur, were not entirely foreseeable. Nor was it argued that for present purposes there was not sufficient shown to establish the necessary causal connection between development of the mental illness and the explosion. The evidence, at least for present purposes, is clear enough: for example Dr Flanagan, a psychiatrist who was treating Mr Oram, opined in a letter to his treating general practitioner, Dr Belonogoff, that “he has a story of post traumatic symptoms with in particular, survivor guilt, which dates from the third Moura mine tragedy.” Similarly Mr Michael John, a psychologist, spoke of “apparent complex PTSD subsequent to 1994 Moura Mine disaster”.
- The proposition advanced by BHP therefore becomes that, as employer, it was under no duty to have taken steps to have prevented the explosion because it could dismiss as “far fetched or fanciful” the prospect that a fellow workmate of those who died, one who knew them well, and who, in the normal course of events, should too have died, might suffer a “recognisable psychiatric illness” or injury. The argument is that it would be unreasonable to expect that of an employer.
- It is not my judgment that Mr Oram seeks or is entitled to on that issue but the judgment of the eventual trial judge. No doubt there would be cases where it would be hopeless to contend that any employer could reasonably foresee the harm that occurred and I could comfortably find that the requirements of s 31(2)(b) of the Act are not satisfied. But that is not this case.
- It is true, as was submitted, that many employees might well have been relieved at not having gone to work that day and thus having survived the disaster. But it is putting the proposition too high to say that was the only foreseeable response.
- I do not have any difficulty in concluding that the eventual trial judge could decide that the risk of a surviving co-employee developing a psychiatric injury was foreseeable to the employer in the sense of not being “far fetched or fanciful”. The test has often been said to be an “undemanding one”. Even if it be thought that expert evidence is relevant on the issue, and accepting that it may be that the eventual expert evidence led might affect that judgment adversely to Mr Oram, there is simply no direct evidence on the point at this stage. What indirect evidence there is goes the other way - the psychiatrists and psychologists who have seen Mr Oram express no doubt or surprise about the causal relationship. But in my view Mr Oram has at least reasonable prospects of persuading the eventual tribunal of fact that psychiatric injury to a surviving employee, particularly one who was designated to work with those who died, was a foreseeable outcome in the relevant sense from exposure to such a disaster as occurred and the loss of 11 workmates.
- As to the second point argued - the true cause of Mr Oram’s illness or injury – the point seems to me to suffer from the same problem as was identified with a similar argument in Mount Isa Mines Ltd v Pusey. There it was put that “the respondent's mental condition manifesting itself some weeks after the incident was [not] causally related to the effect on the respondent of his view of, or contact with, [the injured worker]. It was said that whatever that effect was, it was but transient and itself not compensable. The ultimate disturbance of the respondent's mental condition on this submission was due to his own subsequent, and as it were, autogenous brooding on the ‘incident’. There was no physical or ostensible injury, so it was said, sustained at the time of the incident and none subsequently caused by it.”
- Barwick CJ dismissed that argument in these terms:
“It seems to me that the appellant's submission amounts in reality to no more than saying that the particular make-up of the respondent contributed to the resulting mental disturbance and that such an experience as he had had would not have caused a person of a different disposition to have become similarly disturbed. But that is clearly no answer to the respondent's claim for damages.”
- There are at least two factual distinctions between Pusey and this case, but they do not affect the analysis.
- First, in Pusey the injured and subsequently deceased workers were unknown to the plaintiff. In that sense Mr Oram’s case is stronger.
- And secondly, the claimant had observed the horrific injuries suffered by the burn victims who subsequently died and indeed personally assisted one of them. Mr Oram did not personally observe his deceased workmates – their bodies were never recovered. But the need to establish “shock”, in the sense of personally observing the horrifying event that is the claimed trigger of the psychiatric illness, if it ever was, is no longer a necessary pre-requisite for establishing breach: see Tame at  per Gleeson CJ, at  per Gaudron J, at  per Gummow and Kirby JJ.
- There remains the submission that the decision in Rowe v McCartney, relied on by BHP, precludes recovery. I do not accept that the decision does have that effect here. One difficulty is why a finding on the facts in one case determines another. Another is whether the decision is authoritative at all.
- The case concerned a psychiatric injury sustained by a passenger in a vehicle who blamed herself for the catastrophic injuries suffered by the driver of a car, she having given up the wheel to him before an accident, an accident caused by the negligent driving of the injured friend, the defendant at trial.
- The decision was by majority, Moffitt P and Samuels JA agreeing, with Glass JA dissenting from the result.
- Two quite different reasons were advanced by the majority for denying the plaintiff a remedy. Moffitt P held that while a duty of care was, of course, owed by the driver to the passenger, the fact that the plaintiff was a passenger was entirely irrelevant. Her injury and her claim for damages would have been precisely the same, it was said, had she “lent the car to the defendant and gone on a holiday”.
- I interpose here that, for me, the foreseeability of psychiatric injury is much more evident in the actual circumstances of the case than in the hypothesis postulated by the President. The coincidence of time, space and precise relationship are very different in the two hypotheses. Putting that to one side, the proposition seems to have been that, in effect, the plaintiff sought to extend the liability of the driver for his negligent driving to all those who might blame themselves for his injuries, no matter how irrational the link.
- Moffitt P said:
“The damage in the present case was quite different from that which is ordinarily found to flow from negligence in relation to a vehicle or equipment capable of inflicting physical damage. The damage to the plaintiff would not have occurred but for the impact, which in turn would not have occurred but for the defendant's negligence. However its only connection with the impact has no rational basis. The sole connection was made illogically and contrary to that which one would expect from a reasonable mind. The damage fell into the class where its sole connection with the negligent act was irrational reasoning in relation to, but external to, the negligent act. It fell into the same class as that of a mother who sues an insurance company through the agency of her son as defendant where the son negligently injured himself upon a motor bike, a gift from his mother, and where she suffers psychiatric injury due to her neurotic blaming of herself for her son's injury, or that of the mother who sues a motorist who negligently injures her child on the way to school, the mother suffering a psychiatric injury, not from nervous shock, but by self-blame for allowing her child to go to school. These classes of psychiatric injury are not, in my view, foreseeable. The tenuous connection between these types of psychiatric damage, which are directly connected with the plaintiff's own conduct and the plaintiff's abnormal reaction to it, places such damage into a class where such damage is not foreseeable.”
- That reasoning is not applicable here, or at least it is not yet evidently applicable. First, the connection between the guilt felt and the employment relationship on which the duty here depends cannot be doubted. Secondly, there is no evidence here that the connection between Mr Oram’s illness and the breach of duty is an irrational one. Had Mr Oram taken his workmate’s place he would have died. That he did not, meant that he survived. There is nothing irrational about those conclusions and I struggle to see why a consequent feeling of guilt is irrational. For someone to feel guilt at the devastating consequences of a decision, no matter how innocently taken, seems to me to be entirely human.
- But a more fundamental point was that identified by Glass JA. The decision of the High Court in Chapman v Hearse denies that “responsibility depends upon the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.” For present purposes Mr Oram now suffers from “a Major Depressive Disorder with symptoms seen in Post Traumatic Stress Disorder”, plainly a recognisable psychiatric injury. His sense of guilt might be its cause. But as Glass JA pointed out in his dissent in Rowe what is really being argued is that the plaintiff’s particular mental make up contributed to the resulting illness. Perhaps not all people would have felt that guilt and perhaps not all, or not many, would have developed a psychiatric illness. But if the “normal fortitude” test is no longer a hurdle to be overcome by the plaintiff to establish his or her suit, as the reasoning in Tame requires, but rather one more factor to be weighed up with all others, then Glass JA’s analysis is now the orthodoxy.
- I note that in Tame Gleeson CJ expressly left open the question of vulnerability of an individual which may make it unreasonable to require a person to have in contemplation the kind, “or perhaps the degree” of injury suffered. I note that was in the context of the existence of a duty of care, not in relation to the question of breach or remoteness, but nonetheless, it seems to me that is not yet shown here - the question is a trial issue, not one for preliminary determination.
- There is one final point. BHP’s argument focused on foreseeability of the harm suffered and the analysis of Samuels JA in Rowe. What is of interest is the distinction between the approach of Glass JA and Samuels JA to the issue. They arrived at opposite conclusions and they did so because of the level of generality at which they each posed the relevant question.
- Glass JA asked: “whether the suffering of a mental disturbance of some kind by a passenger was foreseeable by a defendant as a possible consequence of his lack of care in the handling of a vehicle.” He thought that such a disturbance was “well within the ambit of reasonable foresight”.
- Samuels JA did not disagree with that last point but considered that as a matter of policy the question that needed to be considered was more confined. He asked not whether “a mental disturbance of some kind by a passenger was foreseeable” but whether Ms Rowe’s “feeling of guilt was harm of a kind which was foreseeable” and held it was not. Samuels JA’s reasoning was plainly directed to the facts of the case in hand and no more: “…I take the view that in this case, it is necessary and legitimate to penetrate the categories more closely…The harm suffered was in my view of an entirely different kind from that to which the defendant ought reasonably to have regard as a likely consequence of his negligence.”
- As mentioned above Gleeson CJ left that issue open in Tame. Gummow and Kirby JJ in Tame put the proposition precisely in the terms that Glass JA did.
- No case was cited in which any court has held that such a policy decision is appropriate in the proper allocation of responsibilities for the consequences of an employer’s negligence or breach of contract. As a matter of policy I cannot see why an employer should avoid liability for a psychiatric injury caused to one of its employees when by its negligence the employer has caused the death of 11 of his work mates. I am, of course, not free to impose my own views on what the policy of the law might be but must “act in company [with other Courts] and not alone” as Windeyer J pointed out in Pusey. But in the absence of any authority and given the preliminary stage at which I am assessing matters I am not persuaded that I should prevent the claim proceeding on this ground.
- In my view Mr Oram has satisfied the requirements of s 31(2)(b).
- The relevant principles were explained in Brisbane South Regional Health Authority v Taylor. Each member of the Court was of the view that having satisfied the two conditions laid down in s 31(2) of the Act there was no presumptive right to an order. The applicant still bore the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour. The test that needed to be satisfied was expressed in slightly different terms in the judgments.
- Toohey and Gummow JJ said: “The real question is whether the delay has made the chances of a fair trial unlikely.”
- Dawson J said: “I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”
- Kirby J pointed out, after recitation of authority, that “once the preconditions are made out, the positive burden on the applicant would not be one of any great severity. But if, weighing the countervailing evidence, the judge is uncertain or unconvinced that the provision of an extension would be just, it should be refused.”
- McHugh J, with whom Dawson J agreed, said:
“The object of the discretion, to use the words of Dixon CJ in a similar context, ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.’ In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”
- Effectively BHP argues two things. First, there is specific prejudice shown in that medical records are no longer available and it is not shown that any witness has any relevant recollection of the plaintiff over the last 20 years. Secondly, there is general presumptive prejudice given the long lapse of time since the onset of the condition.
- The issues that may be agitated at trial are of course broader than those relevant here. BHP limited its arguments on specific prejudice to the issue of causation of, and perhaps the extent of, the accepted psychiatric illness. It submitted that to properly defend the case it would require access to Mr Oram’s medical records going back to a time preceding the mine explosion. It is common ground that those records prior to 2010 are not available, or at least that the plaintiff, who bears the onus, cannot show that they are available.
- As well BHP lead evidence from Dr Nothling, an experienced psychiatrist, that the determination of “an accurate diagnosis of the causation and extent of the psychiatric injury is an extremely difficult exercise” at the best of times but particularly in the absence of medical records and evidence of the recollections of those who knew the plaintiff over the intervening years from 1994.
- On presumptive prejudice BHP relied on its lack of knowledge of any claim for nearly 18 years, and referred to the well known passage in McHugh J’s judgment in Taylor:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
- Mr Oram rarely attended any medical practitioners over the years. His Medicare records are available and they demonstrate that much. So are hospital records from Moura where he has lived continuously since 1994 and indeed most of his life. But the Medicare records do make plain that there were occasional visits, principally to a Dr Belongoff, and the doctor’s records of what transpired at those visits cannot be produced. Dr Belongoff remains in practise now in Rockhampton and his surgery has been contacted, but he apparently cannot produce records prior to 2010. No statement as to his personal recollections is proffered.
- Mr Newton, who appeared for Mr Oram, argued that it was still possible that records may become available with further searches and witnesses may be able to be produced who “might” assist, but that tends to emphasise the problem.
- No witness statements are produced by the plaintiff at all let alone going to any relevant issue. The solicitors for BHP have sought such statements but none are produced. Presumably witnesses do exist who have known Mr Oram all his life – given that he has lived principally in the one place, and that a small country town, it would be surprising if there were not many such witnesses. But it is unknown what they can say about any relevant issue.
- Similarly Mr Oram’s wife has not co-operated with a statement. She, it might be expected, would have good knowledge of relevant matters at least since their marriage in 2002 and perhaps since they met. While her non co-operation may be explicable that does not assist Mr Oram and his discharge of the onus on him.
- Psychiatrists when taxed with questions from lawyers concerning the cause of illnesses within their specialty usually advise that the cause of any such illness is “multifactorial.” And I suspect that most psychiatrists would fairly readily accept that a disaster of the proportions that occurred here, with the death of 11 work mates, associated with the guilt feelings described by Mr Oram, would be a probable cause of a subsequent psychiatric illness. But BHP is legitimately entitled to attack that casual link.
- A further difficulty for Mr Oram is that one issue of particular significance to a defendant in the shoes of BHP here is whether the various potential causes, eg family breakup, excessive drinking, prior disposition, now unknown and unrecognised work or other events, can be sufficiently disentangled to show that the plaintiff was very likely to have suffered from the condition complained of irrespective of the negligence of the defendant: cf. Watts v Rake; Purkess v Crittenden. That analysis involves a legitimate forensic attack on the assessment of proper damages. It cannot occur here in the absence of reasonably thorough evidence of Mr Oram’s medical history and reasonably cogent evidence of his character and behaviour over the years. And there would still reman the difficulty of not knowing what has been forgotten.
- In my view BHP has shown both specific and presumptive prejudice. The prospect of prejudice is sufficiently great that I cannot be satisfied that a fair trial can be held.
- It follows that Mr Oram has not discharged the burden on him even if it be of “no great severity” as Kirby J maintained.
- I will hear from counsel as to the appropriate orders in the light of these reasons and on costs. I am presently minded to the leave the primary proceedings on foot to allow Mr Oram to pursue the issue of the expiration of the limitation period if he so wishes. I will give the parties seven days in which to make submissions and, unless submissions are received to the contrary, order as follows:
- the application is dismissed;
- the applicant to pay the respondents costs of the application.
 See paragraph 4(c) of the Statement of Claim and paragraph 4(a) of the Defence
 Despite the agreement I address this subject below
 Paragraph 9 of the Statement of Claim filed 12 July 2011
 Ibid Paragraph 10
 (1957) 97 CLR 465 at 474
  1 All ER 33
 (1881) 8 QBD 296, at 302 per Field J
  2 KB 72 at 74 per McCardie J
 While the explosion would presumably, on Mr Oram’s case, involve a breach of the employment contract he does not plead that. So I take the later occurrence of the failure to provide care as the breach relied on.
  AC 758 at 771
 (1997) 1 Qd R 243 at 246 per Derrington J
 (2002) 211 CLR 317 at p 329 per Gleeson CJ.
  ACTSC 123
 Section 11 of the Act
  1 VR 27
 (1986) 7 NSWLR 77
 (2000) 23 WAR 159
 (2007) ANZ ConvR 254 at 274-5;  –  per Underwood CJ.
 Paragraph 9 of his affidavit filed 21 August 2014
 Ibid Paragraph 14
 Ibid Paragraph 18
 (1992) 175 CLR 514 at 533.
 Wood v Glaxo Australia Pty Ltd  2 Qd R 431 at pp 434-435 per Macrossan CJ
 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; at 555 per McHugh J
 The breach of statutory duty case is opposed on the pleadings on the ground that the statute in question did not apply to a mine site but the point is not presently relevant
 At 
 Paragraph 8 of the Statement of Claim filed 12 July 2011
 Ibid Paragraph 10
 See p342 of the annexures to Ms Stanley’s affidavit filed 12 August 2014
 (2005) 222 CLR 44
  QCA 426 at  –  per de Jersey CJ (Pincus JA (at -) and White J agreeing)
  2 NSWLR 72
 For example see the comment of Brennan J in Jaensch v Coffey (1984) 155 CLR 549 at 571: “…the categories of claimants [who suffer pure psychiatric injury] are not closed”
  QCA 232
 Ibid at 
 (2002) 211 CLR 317
 Ibid at 337
 Ibid at 386 – and see also at 396
 Ibid at 358 – citations of authority omitted.
 Ibid at 411
 (1939) 62 CLR 1
 Ibid at 44
 See p339 of the annexures to Ms Stanley’s affidavit filed 12 August 2014
  QCA 426 at  per de Jersey CJ
 (2002) 211 CLR 317
 Ibid at 365 – citation of authority omitted
 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–48 per Mason J
 At p41 of the annexures to Ms Stanley’s affidavit. See also the letter to Grant & Simpson dated 30 August 2011 at p33 of the annexures to Ms Stanley’s affidavit
 At p 331 of the annexures to Ms Stanley’s affidavit
 Described as a “necessary condition” by Gleeson CJ in Tame at ; and see Gaudron J at ; Gummow and Kirby JJ at p 382  to the same effect
 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44, and so described, for example, by McHugh J in Tame (2002) 211 CLR 317 at p 352  and p 353 , albeit a description that Gleeson CJ described as “tendentious” in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 331
 Mr Newton, who appeared for Mr Oram, objected that BHP was taking too narrow a view of the cause of his illness. I merely note that Mr Oram’s focus in the history provided to various psychiatrists, psychologists and social workers seemed to be on intense feelings of guilt at not having perished with his colleagues.
 (1970) 125 CLR 383
 Ibid at 388.
 Ibid at 390
  2 NSWLR 72
 Ibid at 76
 (1961) 106 CLR 112
 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 see Gleeson CJ at ; Gaudron J at -; Gummow and Kirby JJ at  and ; McHugh J at  and Callinan J at  contra - and confirmed in Koehler v Cerebos (Aust) Pty Ltd (2005) 222 CLR 44 at  as forming no part of the law in employer/employee cases.
 Ibid at 332
 Rowe v McCartney  2 NSWLR 72 at 79E
 Ibid at 89D
 Ibid at 90B
 Ibid at 90B-C – emphasis added
 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 at 386
 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 396
 (1996) 186 CLR 541
 Ibid at 550
 Ibid at 568
 Ibid at 554
 Ibid at 551
 (1960) 108 CLR 158
 (1965) 114 CLR 164
No Litigation History