An applicant has failed to establish that her work colleague owed a non-delegable duty by driving her vehicle to inflict self-harm in the course of a suicide or an attempted suicide to avoid psychiatric injury to her work colleagues who may witness the aftermath of the event.
In issue
- In this recent decision of the Victorian Supreme Court, the court was asked whether Judge Clayton of the County Court erred in determining that the respondent did not owe the applicant a duty of care in the driving of her vehicle to avoid using it to inflict self-harm (the event) to avoid psychiatric injury to work colleagues who may witness the aftermath of the event.
The background
At first instance, the parties had mutually agreed to a separate trial to determine a preliminary question regarding the issue of duty of care. The parties agreed to the following facts before Judge Clayton:
The 38 year old applicant commenced employment with JobCo Employment Inc (JobCo) on 4 December 2012 as a Personal Helper and Mentor Service (PHAMS).
In 2013, the respondent commenced working in the same team as the applicant and they became work colleagues and friends. The respondent and the applicant socialised on occasion outside work hours – including attending the applicant's 'hen night'.
In about September 2013, the applicant informed the respondent she had suffered from anxiety and depression in the past and been prescribed medication for those conditions. The applicant also informed the respondent that the applicant's mother had a long-term psychiatric condition and had in the past attempted suicide using a motor vehicle by driving into a tree.
In the period of approximately 6-8 weeks prior to 2 May 2014 the applicant was taking Fridays off work for self-care purposes.
On 2 May 2014, at approximately 2:50pm, the respondent attempted suicide by driving her motor vehicle into a power pole at the intersection of Atunga Court and Canterbury Road, Heathmont (the intersection).
At approximately 3:00pm on 2 May 2014, JobCo received a phone call informing them that the respondent had been involved in a transport accident. The applicant's supervisor, Kevin Binding, asked the applicant if she would attend the accident scene with him. The applicant agreed to her supervisor's request and Mr Binding then drove with the applicant to the intersection.
As the applicant and Mr Binding were travelling to the intersection, the applicant observed an ambulance travelling in the opposite direction with the lights and sirens operating.
The applicant and Mr Binding arrived at the intersection at approximately 3:30pm. The respondent's vehicle was being loaded on the back of a tow truck. The applicant observed the vehicle was damaged. The applicant also observed a power pole was also damaged. Mr Binding and the applicant approached a police officer. A conversation took place between Mr Binding, the applicant, and the police officer during which the police officer expressed the view that the respondent intentionally drove her car into the power pole. The applicant said she felt as if she was in complete shock and the event contributed to her developing a psychiatric condition and/or aggravation of an underlying psychiatric condition.
The decision at trial
At first instance, Judge Clayton found that the respondent did not owe a duty of care to the applicant. Judge Clayton referred to the relevant case law and noted the duty in question must encompass a duty to avoid psychiatric harm to a person who did not perceive the event but rather witnessed some of the aftermath of the event. Judge Clayton distinguished the present case from authorities in which the applicant was near a particularly traumatic aspect of an accident or its aftermath, or where there is a close family relationship between the parties.
Judge Clayton determined that in the present case the respondent did not owe the applicant a duty of care as a friend or colleague on the basis that such a duty is novel, vague and could include an indeterminate number of people. Judge Clayton was also of the view that a friend or colleague was in the category of a bystander and this did not give rise to a duty.
Judge Clayton also determined that the respondent's knowledge of the applicant's vulnerability would create a duty to a particular person rather than a category of persons.
Judge Clayton further determined that it was not reasonably foreseeable that work colleagues would witness the aftermath of an accident as it was not likely that an employer would be notified of an accident, that an employer would attend the scene and that a work colleague would attend the scene with the employer.
The decision on appeal
Counsel for the applicant submitted that a duty of care was owed to the applicant on the basis that:
- the applicant was in the 'immediate vicinity or aftermath' of the accident,
- the applicant was owed a duty by reason of being a 'mere bystander' and the duty of care would extend to everyone who drove past the accident, and
- the respondent owed a duty of care to the applicant by reason that of her status as a co-worker.
The applicant abandoned her claim that a duty was owed on the basis of the respondent's prior knowledge of the applicant's vulnerabilities.
The Court of Appeal ultimately determined that although it would grant leave to appeal, the appeal would be dismissed on the basis that the applicant had not established the existence of an alleged duty of care.
The Court of Appeal found that even if it was foreseeable that the applicant would attend the scene of the accident, there was no evidence to show that it would have been reasonably foreseeable that the applicant would have suffered a psychiatric injury. The Court of Appeal was of the view that anyone in the vicinity of an accident where a driver attempts to drive into a pole would be distressed, but there was nothing to suggest that it would be distressing to someone who witnessed the scene after the victim had been taken away as was the case in present circumstances. If a court was to accept the present facts, it could potentially extend the duty to an indeterminate amount of people such as anyone who drove past the scene of the accident for even days after the accident.
The Court of Appeal also addressed the relationship between the parties and determined the evidence at trial had not shown a close relationship such that the respondent ought to have reasonably contemplated the risk of a psychiatric injury to the applicant. The Court of Appeal noted that if the applicant had added evidence to the content and quality of the relationship, the case may have been different.
Leave to appeal was granted but the appeal from the primary judge's decision was dismissed.
Implications for you
No duty of care is owed by someone in the course of a suicide or an attempt at suicide (the event) to a work colleague who may witness the accident aftermath unless particular circumstances can be shown to exist. The applicant failed in this case because she called no evidence in support of her argument that it was reasonably foreseeable that she would attend the accident scene and witness the aftermath. There was no evidence about the nature of the applicant's relationship with and connection to the respondent.
This decision is a useful reminder that an injured claimant must establish the existence of a duty of care in order to succeed. An applicant's status (e.g. a bystander, work colleague) alone is not enough to establish a duty of care to prevent harm.
Tsiragakis v Mallet [2025] VSCA 134
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
