Oram v BHP Mitsui Coal Pty Ltd & Anor

McMeekin J

19 September 2014

This recent decision of McMeekin J provides a detailed and comprehensive discussion of the law regarding negligently inflicted psychiatric injury and the circumstances in which it is appropriate to grant an extension to a limitation period. The Court had reason to consider this issue following the filing of a claim by Colin Oram (the “applicant”) seeking damages from his former employer BHP (the “respondent”) for negligently-inflicted psychiatric injury. This matter traverses a considerable period of time. In 1994 the applicant was a witness to the Moura Mine disasters – he was supposed to have been working on that day, however swapped with a colleague who was subsequently killed in the disaster. Following this, in the period between the disaster and 2011 the applicant developed and was diagnosed with “a Major Depressive Disorder with symptoms seen in Post Traumatic Stress Disorder (“PTSD”)”. [1]. The applicant subsequently filed a claim against BHP for his psychiatric illness, attributing its onset and development to the lack of care provided following the disaster. [2]. This application was (assumed) to have been made outside the limitation period, and thus the applicant filed an application to extend. [3]. It is this application which was before the Court.

Pursuant to s 31 of the Limitation of Actions Act 1974 (“the Act”), the applicant is entitled to an extension if he can satisfy the Court that:

1. a decisive, material fact relating to the action was not within his means of knowledge until twelve months before the limitation period expired;
2. there is evidence to establish the right of action; and
3. it is otherwise just to permit the extension

At issue in this matter was whether the applicant could point to presently-available evidence sufficient to prove his case. [28].

Liability of Employer for Psychiatric Harm

Though a duty to protect against psychiatric injury has previously been recognised, at issue in this case was whether the law, when faced with these specific circumstances, provided a remedy for the psychiatric injury incurred. [46]. The applicant’s case turned on the question of whether the respondent’s liability for the consequences of the explosion extended to psychiatric injury suffered by those who ought to have worked that day and who bore the “guilt” of “knowing that a man died who had taken [their] place”. [47]. See also discussion [48]–[49].

In addressing what an employee must prove to establish the liability of an employer for psychiatric injury, McMeekin J firstly looked to the case law considering the issues of duty of care and the reasonable foreseeability of psychiatric injury. Though finding a number of cases concerning the liability of a party for the negligent-infliction of psychiatric injury, such as the High Court’s decision in Tame v NSW; Annetts v Australian Stations Pty Ltd (“Tame and Annetts”), these decisions were of little assistance to his Honour given that these cases were focused upon the question of the existence of a duty of care, rather than, as in the present case, the foreseeability of the resultant psychiatric injury. [58]–[60]. McMeekin J reasoned that given the existing employer/employee relationship between the applicant and the respondent, that the respondent owed a duty to take reasonable care to eliminate all risks of psychiatric injury was incontestable. Id. Turning then to the general principles regarding foreseeability and applying these to the facts before him, McMeekin J concluded that though in the same circumstances many employees may have been relieved that they did not attend work that day, this was not the only foreseeable response, [66] and the risk that an employee would suffer psychiatric injury in the circumstances was not one which was “far-fetched or fanciful.” [61], [64]–[66]. This conclusion was reached in the absence of any expert testimony, his Honour noting that though it may be relevant, proof of this concept does not require expert evidence and that ultimately the test is “what the lay member of the community may be expected to foresee”. [53]–[56]. His Honour also concluded that arguments relating to the so-called “true cause” of the applicant’s illness or injury, being his personal “make-up” rather than the explosion were no answer to his claim for damages, [67]–[71], and that the decision of the New South Wales Court of Appeal in Rowe v McCartney did not preclude recovery. [72], see [73]–[86].

Prejudice

Given that he considered that the applicant had “at least reasonable prospects of persuading the eventual tribunal of fact that his psychiatric illness was a reasonably foreseeable consequence in the circumstances, his Honour then turned to the issue of whether the applicant had satisfied the Court that “the justice of the case require[d] the exercise of [its] discretion in his . . . favour”. [87], see also Brisbane South Regional Health Authority v Taylor More specifically, whether the applicant’s delay in bringing the claim, was prejudicial to the respondent and made the chances of a fair trial unlikely. [88]–[91]. McMeekin J ultimately concluded that the respondent would suffer specific prejudice as evidence necessary for it to properly defend the claim, specifically the applicant’s medical records, was no longer available. [93]; [94]–[102]. His Honour considered that in these circumstances the risk of the prejudice was sufficiently great that a fair trial was unlikely and, on this basis, denied the application.

Accrual of Cause of Action

In delivering this judgment however, his Honour did note that there was a “potential difficulty” with the present proceedings not dealt with by the parties. This difficulty relates to when the applicant’s cause of action in negligence actually accrued, more specifically when the psychiatric injury he sustained was “beyond what can be regarded as negligible”. [13]; Cartledge v E Joplin & Sons. The evidence was silent upon this point, and given the potential implications that the date of accrual could have on the application, see [17]–[23] the Court delayed making orders to allow the parties to address this issue. [24]–[25].