Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors [2009] NSWCA 94

Mackinnon v BlueScope Steel (AIS) Pty Ltd & Ors [2009] NSWCA 94

The trial judge erred by applying the wrong foreseeability test (requiring probability and 'normal fortitude'), failing to give due weight to the caretaking protocol, failing to address the significance of screening email warnings, and not engaging in the requisite intellectual analysis for expert medical evidence and causation. Substantial evidence indicated foreseeable risk of psychiatric injury, and the trial process and reasoning regarding breach and causation were inadequate, requiring a new trial.

Parties
Appellant/first Cross Respondent: Dr Angus Mackinnon by his tutor Nantia Mackinnon; First Respondent/cross Appellant: BlueScope Steel (AIS) Pty Ltd; Second Cross Respondent: Dalmau & Associates Pty Limited; Third Cross Respondent: Draft One Communications Pty Limited; Fourth Cross Respondent: McKenzie & Associates Pty Limited
Jurisdiction
Australia
Judgment Date
08 May 2009
Procedural Posture
Tort/appeal / Appeal From Supreme Court (common Law Division) to Court of Appeal; Retrial Ordered
Outcome
Appeal allowed; cross-appeal allowed in part; new trial ordered; further orders as per paragraph [148].
Legal Topics
Negligence, Psychiatric Injury, Foreseeability, Employment Relationship, Breach of Duty, Causation, Costs, Choice of Law
Torts Employment Law Negligence Psychiatric Injury Foreseeability Employment Relationship Breach of Duty Causation +2 more

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Parties

Dr Angus Mackinnon by his tutor Nantia Mackinnon

Appellant/first Cross Respondent

BlueScope Steel (AIS) Pty Ltd

First Respondent/cross Appellant

Dalmau & Associates Pty Limited

Second Cross Respondent

Draft One Communications Pty Limited

Third Cross Respondent

McKenzie & Associates Pty Limited

Fourth Cross Respondent

Procedural Posture

Tort/appeal / Appeal From Supreme Court (common Law Division) to Court of Appeal; Retrial Ordered

Legal Issues

  1. 1 Was the development of psychiatric condition reasonably foreseeable?
  2. 2 What is the correct test of foreseeability for psychiatric injury?
  3. 3 Was there a breach of duty by the employer?

Ratio Decidendi

The trial judge erred by applying the wrong foreseeability test (requiring probability and 'normal fortitude'), failing to give due weight to the caretaking protocol, failing to address the significance of screening email warnings, and not engaging in the requisite intellectual analysis for expert medical evidence and causation. Substantial evidence indicated foreseeable risk of psychiatric injury, and the trial process and reasoning regarding breach and causation were inadequate, requiring a new trial.

Court Disposition

Appeal allowed; cross-appeal allowed in part; new trial ordered; further orders as per paragraph [148].

Orders

  • Appeal allowed.
  • Cross-appeal allowed in part.