In Capar v SPG Investments Pty Ltd (t/a Lidcombe Power Centre) (No 5) [2019] NSWSC 507, the New South Wales Supreme Court reinforced the principle that, except in unusual circumstances, occupiers and employers will not be liable for injuries to security guards where the injury is caused by criminals.

Capar is a welcome decision for retailers, that often delegate security operations to contractors.

Facts

SPG Investments operated a shopping centre and engaged Business Protection Group to provide security. Business Protection subcontracted security to Dynamite Security Protection Services, who employed the plaintiff as a security guard.

On 17 March 2010, the plaintiff observed an intruder on a CCTV monitor. He left the control room to investigate, and found the intruder wielding an axe. The intruder said to the plaintiff, ‘I’m going to kill you’. The plaintiff responded by locking himself in the control room and calling the police.

The plaintiff alleged that he suffered chronic PTSD and depression, as well as other ongoing psychological sequelae, as a result of the incident

Decision

Numerous manuals were entered into evidence. The manuals covered day-to-day operations and responses to specific incidents, such as dealing with armed persons and robberies. The plaintiff was found to be familiar with them.

The Court held that the plaintiff had completely abandoned the instructions within the manuals, which stated that he should have avoided the intruder, immediately alerted police and awaited their arrival. The Court therefore found that the plaintiff was solely responsible for placing himself in a position of vulnerability and danger.

The Court found that neither SPG nor BPG could have reasonably foreseen that an intruder might threaten the plaintiff in the manner in which he did. As a consequence, and consistent with the law’s notorious reluctance to require people to assume others will act criminally, Dynamite and BPG did not owe the plaintiff a duty of care.

In considering the scope of any of any duty that may have been owed by SPG, who were further removed from security operations, the Court reiterated that it would be contrary to authority and principle to extend an occupier’s duty to cover unlawful acts of third parties.

Even if Dynamite had owed a duty, the Court found it was not breached by any party because reasonable training had been provided to the plaintiff for the very situation he encountered.

Lessons for occupiers and employers

Capar is a common-sense decision, which highlights that occupiers will only be liable for matters over which they have control. Unless they have knowledge of likely criminal activity, an occupier will not be liable for the criminal acts of entrants. Further, there is no reason why an occupier cannot wholly delegate an activity such as security to a third party.