Whether a duty of care owed by host employer for criminal actions of a co-worker causing psychiatric injury to another worker.

In Issue

  • Whether duty of care owed for prevention of psychiatric injury
  • Application of section 32 Civil Liability Act 2002 (NSW)

The Background

The respondent (Mr Wright) was placed in training with the appellant (Optus), his host employer, by his legal employer IPA Personnel Pty Ltd (IPA). Another of the staff in training, Mr George, began behaving in a manner described by some as psychotic or drug affected. Optus personnel, including management, took steps to try to reason with Mr George. Mr George had ascended to the rooftop of the premises and began asking to see Mr Wright. Optus staff assumed the two were friends (they were not). Upon attending the roof, Mr George attempted to throw Mr Wright off the roof before staff intervened. He sustained very significant psychiatric injuries.

Mr Wright alleged that Optus owed the duties of a host employer. Optus contended that it owed duties as an occupier of premises only and could not be held liable for the criminal actions of an entrant. It otherwise denied any breach of duty. Contributory negligence was also in issue, with Optus suggesting Mr Wright was volunteering his assistance.

The Decision at Trial

Mr Wright succeeded against Optus at first instance. It owed the duty of a host employer, being a duty analogous to that of an employer, and had breached that duty. The trial judge found that the psychiatric injury was foreseeable and that a reasonable person in the position of Optus would not have put the respondent in harms way by exposing him to Mr George’s behaviour. The relevant Civil Liability Act 2002 NSW (CLA) provisions were satisfied. The trial judge was not satisfied that IPA had any control over the respondent in the relevant situation in which the injury occurred and it escaped liability. No contributory negligence was found. Mr Wright was awarded $3,922,116.

The Issues on Appeal

Optus appealed, disputing that it owed any duty of care, particularly in relation to the foreseeability requirement of s 32 CLA in respect of mental harm. Optus also appealed the findings of breach and quantum and Mr Wright raised a challenge to uncertain findings of vicarious liability by the trial judge.

The Decision on Appeal

The appeal was allowed (Gleeson JA dissenting). Optus established that it did not owe a duty to prevent the psychiatric injury resulting in the circumstances. Section 32 CLA required a finding that Optus ought to have foreseen that a person of normal fortitude might suffer mental harm in the circumstances if reasonable care was not taken. The trial judge had incorrectly aggregated the knowledge of various Optus employees about Mr George’s conduct to Optus. Whilst Mr George’s conduct was unusual and might have indicated he would self harm, it was not probable that any Optus staff knew or should have known that Mr George would attempt to kill Mr Wright, and that this would result in mental harm. As a result, findings on the other grounds were not required.

Implications for you

The facts of the case are extreme, as criminal conduct may often be extreme or unexpected. The decision reiterates the prospective analysis that must be undertaken in respect of foreseeability, and the close regard that must be had to CLA provisions in respect of foreseeability of mental harm in particular.

Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21