A recent decision of the ACT Supreme Court in Petrovski v Serco Defence Services Pty Ltd and Commonwealth of Australia  ACTSC 242 has awarded damages for mental harm to an employee who witnessed a simulated emergency.
The facts in summary are that a bus driver employee of Serco was awarded approximately $546,000 in damages (for non - economic and economic loss and out of pocket expenses) for mental harm as a result of a breach of duty of care by the defendants. The driver was performing driving duties for the Australian Defence Force (ADF) pursuant to a contract between Serco and the ADF when he witnessed a mass casualty training exercise that was made to look at realistic as possible. The plaintiff claimed that he suffered severe nervous shock as a result of what he saw at the scene and that he developed a recognised psychiatric illness. He claimed that he was not warned of what to expect at the simulated accident scene and was unable to work as a result of mental harm suffered.
The case is quite extraordinary as it concerns the degree of detail given in a warning about simulated emergency training exercises. The plaintiff had some awareness that there was a simulated emergency, but despite this still had a genuine nervous shock reaction, and claims (which the Judge agreed with), that the warning he received should have been more detailed. The case also emphasises the importance of communicating with persons (including suppliers, contractors and customers) who do not speak good English.
Learning’s relevant to WHS:
This decision appears to be relevant from a WHS perspective in that it reminds businesses to review their emergency response and management protocols to ensure that persons who are required to enter or observe a fatal or serious incident scene are thoroughly briefed with adequate and proper detailed warning of what to expect before doing so, having regard to the known circumstances. Businesses should also ensure that persons who witness such incidents receive appropriate counselling and debriefing.