June 2022


Court rejects PTSD claim

by Resolve Editor Kate Tilley

A building site traffic controller has failed in a bid to find the site’s head contractor liable for post-traumatic stress disorder she allegedly sustained after seeing two men badly burnt in an onsite incident.

The NSW Supreme Court had rejected Evangellia Sdrolias’s claim to have suffered psychiatric harm (PTSD) after witnessing an incident on 30 October 2013 at Eastern Creek when a labourer working in a pit nearby cut a live high-voltage electrical cable with a hand-held reciprocating saw, causing an electrical explosion.

Ms Sdrolias heard the explosion and saw its aftermath, as the two men in the pit were badly burnt.

Ms Sdrolias initially took an action against head contractor Power Distribution Services Pty Ltd, and the subcontractor engaged to perform the cable works, Superior Civil Pty Ltd.

Ben Forster, the labourer who cut the underground conduit to determine whether it was carrying live cables, which it was, was employed by Superior Civil, which went into liquidation and was replaced as second defendant by its insurer, Allianz Insurance Australia Ltd.

The primary judge, Justice Des Fagan, rejected Ms Sdrolias’s claim.

Appeal decision

The appeal, before Justices Lucy McCallum, Robert Macfarlan and Anthony Meagher, concerned only Justice Fagan’s ruling in favour of Superior Civil.

Justice McCallum, with whom Justices Macfarlan and Meagher agreed, said Justice Fagan had accepted Mr Forster failed to exercise reasonable care, was acting within the scope of his employment, and had adopted “a negligent and unauthorised mode of work that was authorised by his employer”. However, Ms Sdrolias lost the case on the issue of causation of damage.

Justice Fagan found her evidence on what she saw after the incident lacked credibility. Her evidence varied on how close she was to the pit, what injuries she had seen on both men, and the contents of their conversation she alleged to have overhead just before the incident. “Her inconsistency … arises from her endeavouring to advance her case. It contributes to my lack of confidence in her reliability as a witness, generally,” Justice Fagan said.

Ms Sdrolias apparently took the men to a tap to put water on their burns, assisted in calling the ambulance by explaining the location it needed to come to, and remained onsite until inspectors turned up to start an investigation. She returned to work the next day and did not complain to her employer of any consequences of the incident.

Justice Fagan said he did not accept the histories Ms Sdrolias gave to various medical practitioners, so there was insufficient evidence to show she met the criteria required for a PTSD diagnosis.

Witness not persuasive

Justice McCallum said: “A judge is not obliged to accept evidence only because it is unchallenged. The tribunal of fact must reach a state of actual persuasion before a finding of fact can be made.”

She said Justice Fagan could have been “less exacting” about discrepancies
in estimating distances on different occasions, saying “it is not uncommon for witnesses to give varying or inaccurate estimates of distance”.

However, Justice McCallum could not conclude Justice Fagan was “obliged to be persuaded (to the extent of erring in not being persuaded) by a witness he did not find persuasive”.

Justice McCallum accepted Justice Fagan’s finding that, although six doctors diagnosing PTSD between February 2014 and 2019, if Ms Sdrolias suffered from PTSD, the causes were more likely “interpersonal conflicts at work exacerbated by financial and family stressors at home”.

Justice Fagan said: “She had not complained of ‘intrusive recollections’ or ‘recurrent nightmares’ at any time following the incident up until her presentation to [a doctor] in mid-February 2014. At that time her inability to cope with her employment was, in reality, attributable to quite different causes.”

Justice McCallum said: “The fundamental problem with the whole appeal is that it was open to [Justice Fagan] to make the subordinate findings and to reach the ultimate conclusion he did … [considering] his damning assessment of Ms Sdrolias’s credibility.”

She said due deference was to be paid to the trial judge having seen and heard the evidence unfold. “The impugned findings are not demonstrated to be wrong by incontrovertible facts or uncontested testimony, or glaringly improbable or contrary to compelling inferences.”

Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20 judgement 24/2/22

Sdrolias v Power Distribution Services Pty Ltd [2021] NSWSC 321, judgement 1/4/21

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