A woman who attempted suicide by driving into a power pole did not have a duty of care to a colleague who suffered a psychiatric injury after attending the scene, an appeal court has ruled.

The crash happened on May 2 2014 about 2.50pm, and the woman’s employer Jobco Employment Services received a phone call about it at 3pm. A supervisor then asked the colleague if she would go with him to the scene and they arrived about 3.30pm.

On the way, an ambulance with lights flashing and sirens sounding passed. They saw a damaged power pole and a vehicle being loaded onto a tow truck, and a police officer expressed the view the driver had crashed intentionally.

The colleague said she felt in “complete shock”, and she later sued her employer and the co-worker for negligence leading to psychiatric injury.

A Victorian County Court “preliminary question” judgment found the driver owed no duty of care to the colleague.

The Supreme Court, on appeal, has upheld the verdict in a majority decision.  

Justices David Beach and Maree Kennedy say there was no evidence to suggest the employer would be notified of a crash, or that a colleague would attend the scene, or that it was reasonably foreseeable they might suffer psychiatric injury on arriving 40 minutes after the incident.

“We do not accept that it is reasonable to require a person to have in contemplation that everyone who might happen to see an ambulance or a damaged pole and car by the roadside might suffer psychiatric injury,” they say.

It might be foreseeable that the colleague would be told about the event, but it is not reasonable to require co-workers, or even friends, to contemplate a risk of psychiatric injury, they find.

The court distinguishes between the relationships of colleagues or friends and that of a close relative who might attend after an incident and suffer mental harm.

The initial hearing was told the co-workers were also friends who had socialised outside work, and the driver had told the colleague she had suffered anxiety and depression in the past and her mother had attempted suicide by driving into a tree. Those factors were not part of the appeal. 

Justice Stephen Kaye’s minority response finds the chosen “preliminary question” procedure did not allow evidence needed and “was wholly inappropriate” to decide the issue, and the initial judgment should be set aside.

The decisions are available here and here.

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