Glenn Wright claimed that he suffered pure mental harm when a co-worker, Nathanial George, attempted to throw him off a building occupied by Optus on 15 March 2001. At the time of the incident, the co-workers were employed by a labour-hire company and attending a training course conducted by Optus.

Mr Wright sued Optus in the Supreme Court of NSW and was successful, with the trial judge finding that Optus owed him a duty of care in respect of pure mental harm under the NSW Civil Liability Act 2002. The trial judge identified the risk of harm as the risk that Mr George might inflict personal injury on Mr Wright, including mental harm, in circumstances actually known to Optus’ employees. His Honour found that that risk was not insignificant and that a reasonable person in Optus’ position would not have put Mr Wright in harm’s way by exposing him to Mr George’s behaviour. Judgment was entered in favour of Mr Wright for approximately $4 million.

The Court of Appeal overturned the judgment of the trial judge and found that Optus did not owe Mr Wright a duty not to cause mental harm in accordance with section 32 of the Act. In doing so, the Court of Appeal held that the primary judge had incorrectly aggregated the knowledge of various Optus staff members and incorrectly attributed that knowledge to Optus. Furthermore, because there was no finding by the trial judge that it was foreseeable that an assault of the kind inflicted on Mr Wright might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm.

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

This decision is a useful reminder that the test for establishing a duty of care for pure mental harm is different to the general duty of care. This case also highlights the importance of properly understanding and applying the tests for determining whether a duty of care arises in respect of pure mental harm.