In a set of facts reminiscent of an American TV drama, a telecommunications worker has successfully claimed damages in the NSW Supreme Court from his host employer after being assaulted by a co-worker who attempted to murder the plaintiff by luring him to a rooftop and attempting to throw him off. There was no finding of liability on the part of the plaintiff’s legal employer. The damages award made was significant, $3,851,286, for severe psychological injuries described by the trial judge as ‘near-catastrophic’.

Facts

The plaintiff was placed with Optus, his host employer, by his legal employer IPA Personnel Pty Ltd (IPA), for training in a call centre role. The plaintiff was in training with a Mr George, and had been in training for a few days prior. The evidence established that there had been general contact between the two, as co-workers, during the preceding days but no particular relationship had formed, of animosity or otherwise.

On 15 March 2001, Mr George began behaving strangely, with his behaviour described by some of those who observed it as psychotic or severely affected by drugs. He left the training room and some time later was found on the roof.  A number of Optus personnel, including management, took steps to locate and try to reason with Mr George.  Mr George began asking to see the plaintiff, and there was an assumption made by Optus staff that the plaintiff and Mr George were friendly. The plaintiff was initially not keen to see Mr George, but later agreed to go and see Mr George on the roof. There was evidence that Mr George had in fact fixed his mind on killing someone in the days prior, and shortly prior to the incident had fixed on the plaintiff.

Upon attending the roof, in the presence of other Optus workers who were monitoring Mr George’s behaviour, Mr George attempted to throw the plaintiff off the roof and, when he failed, commenced punching the plaintiff, before being subdued.

The plaintiff alleged that Optus owed the duties of a host employer (as per TNT v Christie [2003] NSWCA 47). Optus contended that it owed duties as an occupier of premises only and relied on the principles in respect of liability for the criminal actions of others, set out in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61.  Optus argued that the circumstances did not fall into an exception to the principle that a person does not have a duty to prevent the criminal conduct of others. Causation and contributory negligence were also in issue.

Decision

As against Optus, it was found that a duty of care analogous to that of an employer was owed. The employment relationship is one of the special categories recognised to be an exception to the Modbury principle. There was breach of the duty because the risk of harm to the plaintiff was foreseeable and not insignificant, because of the way in which Mr George had been behaving.  It was found that the reasonable response to that risk was to remove Mr George from the premises and until that was done, no one should have been permitted to approach Mr George.  A key issue highlighted in respect of Modbury exceptions was the extent to which an employer (or host employer) can prevent an employee ‘going in harm’s way’.  Here, there were options available to Optus to address the risk of harm.

As to causation, it was held that the failure of Optus to take precautions of calling the police to remove Mr George, and to in the meantime keep other workers away from Mr George, was causative of the injuries.

In respect of contributory negligence it had been argued that the plaintiff was a volunteer willing to help and/or that he should have been able to perceive the risk which arose from Mr George’s behaviours. This argument was rejected and there was no contributory negligence found.

As to the liability of IPA, the court was not satisfied that it had any control over the plaintiff in the relevant situation in which the injury occurred.  Optus was entitled to exercise all control over the plaintiff and also occupied the premises and controlled the actions of others on the premises. The issues related to Mr George’s conduct were completely unknown to IPA.

Key Points

This decision serves as a reminder that there are exceptions to the general principle that a party is not liable for the criminal conduct of others. The particular facts here initially seem to demonstrate fairly innocent misjudgment by Optus management but highlight that, in the employment context, there must be reasonable steps taken to protect workers in situations of foreseeable harm, even involving criminal activity which could be difficult to predict. The decision also serves as a useful reminder that a legal employer with no knowledge of the circumstances of a particular situation, or control over its employee in the situation, can escape liability.

Elizabeth O'Connor