On 6 March 2014, the NSW Supreme Court awarded damages in the sum of $3,851,286 to a victim of attempted murder, who suffered physical and mental harm when a fellow Optus trainee tried to throw him off a fourth-floor balcony.

Background

Mr Glen Wright (the plaintiff) and Nathaniel George (George) were undertaking training provided by the first defendant (Optus) for work in an Optus call centre. The plaintiff was employed by IPA Personnel Pty Ltd (IPA), a labour hire company, who were joined to the proceedings by way of a cross claim filed by Optus. The two men were not known to each other prior to commencing the training. The evidence established that George had formed a desire to kill someone and had fixated that desire on the plaintiff.

On the morning of 15 March 2001, George made several attempts to lure the plaintiff to the balcony. Eventually (after George’s strange behaviour became apparent), the plaintiff’s supervisor encouraged the plaintiff to come to the balcony to assist with the issue. George then attempted to throw the plaintiff off the balcony, and in the process inflicted blows to the plaintiff’s head, but was restrained before he was able to complete his attempt on the plaintiff’s life. The plaintiff alleged that he sustained both physical and mental (PTSD) harm as a result of the attack.

The plaintiff’s position

The plaintiff argued that his services were lent by IPA to Optus pursuant to a contract and, while on the training course, he was under the direction, supervision and control of Optus.

The plaintiff claimed damages against Optus for the harm suffered by him as a result of George’s attack, arguing that Optus owed him a duty of care analogous to that owed by an employer to an employee, in accordance with TNT Australia Pty Ltd v Christie [2003] NSWCA 47 (TNT v Christie).

Optus’ position

Optus argued that it did not owe the plaintiff a TNT v Christie employer/employee type duty. It argued that its only relationship was that of occupier and lawful entrant and that the case should be governed by principles enunciated in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 (Modbury Triangle).

Modbury Triangle is authority for the principle that an occupier is not liable for injury to lawful entrants caused by the criminal acts of third parties on an occupier’s land. However, there are exceptions to this principle, including the relationship of employer and employee. Further, there is authority that the exception extends by analogy to the labour hire situation, whereby a duty to protect another arises where the victim of injury is not technically an employee, but is under the control of the person in such a sense that their relationship is akin to the employer/employee relationship.

Failing in their argument as to duty, Optus contended that the evidence did not establish negligence on its part or causation pursuant to section 5D.  In the alternative to these arguments succeeding, Optus claimed contributory negligence from the plaintiff and from IPA under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946(NSW).

Duty of care

Campbell J found that the plaintiff was working for Optus under a contract between it and IPA.  His Honour discussed the TNT v Christie category of cases as extrapolated inBostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 and found that a duty of care between the plaintiff and Optus arose from the degree of control or direction exercised over the plaintiff and others that were on the site.  As a consequence, his Honour rejected Optus’ submission that the duty question was governed by the Modbury principle.  Hence, the case fell into the employer/employee exception to the principle.

The duty of care that arose involved the exercise of reasonable care in creating a system to manage George’s behaviour, in order that no persons performing work on the premises were at a foreseeable and not insignificant risk of George inflicting personal injury (including mental harm) on them.

Breach of duty

The question of whether the risk to the plaintiff was reasonably foreseeable was determined in the affirmative, based on the actions taken by the witnesses that morning that clearly showed their apprehension as to George’s behaviour.

Viewing the risk prospectively, his Honour was not prepared to accept that the Optus’ supervisors were satisfied on reasonable grounds that George posed no risk and as such the risk was deemed to be not insignificant.

Campbell J held that in this case, the normative standards underpinning negligence recognise and apply an employee exception to the Modbury Triangle case principle. These standards inform all aspects of duty, its content, breach and causation. 

The precaution of reasonable care that was required of Optus was stated to have been two-pronged. It included the removal of George from the premises; and also not allowing the plaintiff (or any other person) to be put in close proximity to him. Optus thus breached the duty of care.

Causation

A factual issue presented as to whether, following George’s repeated requests to see him, the plaintiff was ordered to come to the balcony by his supervisor, or whether he came as a volunteer. While the plaintiff was not ordered to the balcony he felt pressured to go as he had been requested to attend the balcony on three occasions and was asked by the trainer to accompany her. It was found that but for the failure of Optus to take reasonable care, the harm suffered to the plaintiff would not have occurred.

Contributory negligence

Optus failed to establish contributory negligence on the part of the plaintiff. Campbell J analysed the level of control and found that Optus was entitled to exercise control and direction over the plaintiff; over the premises on which the work was performed; and over the activities of others on site for the purpose of its own business. In addition, the situation of George’s aberrant conduct was unknown to IPA. Their lack of control over the circumstances led his Honour to conclude that the harm was occasioned under Optus’ control, within the scope of its duty and no other intersecting duty.

Optus was ordered to indemnify IPA for workers compensation payments made to and on behalf of the plaintiff.

Damages

The plaintiff was found to be 75% of the most extreme case for non-economic loss, and the prospects of him ever returning to financially productive work were described as speculative. The plaintiff was awarded damages in the vicinity of $3.8million.

Given the significant liability issues and amount awarded to the plaintiff, there is likely to be an appeal.

Key Lessons

  • The characterisation of the factual circumstances of any matter is crucial as it forms the basis of the duty between the parties.  In this case, the circumstances were found to fall within a labour hire situation and the host employer was unable to escape liability for the criminal act of a third party.   
  • If the court found that the relationship was merely an occupier and lawful entrant then there would have been a different result with Optus being able to rely on theModbury principle.  However, the labour hire relationship meant that Optus owed a duty to the plaintiff analogous to that of an employer and it was unable to rely on the Modbury principle.  
  • The level of control exercised by Optus over the plaintiff was integral to the determination of a duty of care analogous to that of an employer and employee, even where the plaintiff was not directly employed by Optus.