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

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Glenn Wright, claimed damages for psychological injury as a result of an attempt by a co-worker, Nathaniel George, to murder him by attempting to throw him from the roof of the premises of the respondent (Optus) at Gordon. He sued Optus as occupier of the premises at which the attempted murder occurred and the entity responsible for his presence at those premises.

Both Mr Wright and Mr George were attending a training course at Optus premises, for call centre operators. The course was conducted by an Optus employee, Natalie Hedges, on the ground floor. Mr Wright and Mr George were unknown to each other before the training course commenced on 12 March 2001. Shortly prior to 15 March 2001, Mr George formed the desire to kill someone, and on the previous night, randomly settled on Mr Wright as his intended victim.

At about 9:30 am on 15 March 2001, Mr George, having left the training course on the ground floor, was found in an unauthorised place on the roof balcony on the fourth floor of the Optus premises. Ms Hedges reported the incident to her superior, Trevor Williams. Together with Paul Dee he went to the roof balcony and observed Mr George to be unresponsive, appearing to be in a trance-like state, and repeatedly asking for “Glenn” while pacing up and down the roof balcony near the waist-high railing.

Mr Wright reluctantly complied with a request from Mr Williams communicated via Ms Hedges to provide his assistance and left the ground floor to attend the roof balcony. Mr Williams asked Mr Wright whether he had supplied drugs to Mr George, to which Mr Wright answered, “no”. Mr Williams then left the balcony in order to report to senior management who instructed him to make arrangements for Mr George to be removed from the premises by the labour-hire company which had supplied his services.

While he was gone, Mr Wright approached Mr George while Mr Dee and Ms Hedges observed from about 15 metres away. After encouraging Mr Wright to go close to the balcony railing, Mr George attempted to lift Mr Wright off his feet and throw him from the balcony, while also punching and hitting him. Mr Dee intervened and restrained Mr George, allowing Mr Wright to escape.

As a result of the incident, Mr Wright suffered a blow to the head, occasioning no compensable loss. He later developed chronic severe post-traumatic stress disorder.

The primary judge found that the relationship between Optus and Mr Wright was analogous to that of employer and employee, even though Mr Wright and Mr George were both employed by labour hire companies that had supplied their services to Optus. The primary judge also found that Optus’ duty of care to Mr Wright extended to taking reasonable care to protect him from the criminal acts of others in the workplace. In relation to the requirement in s 32 of the Civil Liability Act 2002 (NSW) that the prospect of a person of normal fortitude suffering pure mental harm must be reasonably foreseeable, the primary judge found that it was reasonably foreseeable that Mr George may assault Mr Wright when he was brought to him and that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken. The primary judge identified the risk of harm as the risk that Mr George might inflict personal injury on Mr Wright, including mental harm, in the circumstances actually known to Optus employees, in particular Mr Williams and Ms Hedges, before Mr Wright was asked to attend the level four balcony. 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 aberrant behaviour. Judgment was ultimately entered in favour of Mr Wright for $3,922,116.09.

Issues on appeal

The issues on appeal were as follows:

(i)   Whether Optus owed any relevant duty of care to Mr Wright not to cause him mental harm;

(ii)   In particular, whether the foreseeability requirement in s 32 of the Civil Liability Act 2002 (NSW) was satisfied – that Optus ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken;

(iii)   Whether Optus breached any duty that it owed to Mr Wright;

(iv)   Whether the reasonable response to the risk of harm to Mr Wright was to remove Mr George from the premises and not to allow other workers to approach him before his removal;

(v)   Whether Optus was vicariously liable for the conduct of Mr Williams or Ms Hedges;

(vi)   Whether the primary judge erred in his assessment of damages under five heads: non-economic loss, future care, future medical treatment, future economic loss, and fund management.

Held per Basten JA (Hoeben JA agreeing); Gleeson JA dissenting

In respect of (i) and (ii)

1.   The primary judge impermissibly aggregated the knowledge of various employees of Optus and then attributed that knowledge to the corporate employer for the purpose of demonstrating negligence on the part of Optus: at [52].

2.   Optus did not owe a duty of care directly to Mr Wright with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act: at [67]

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 considered.

3.   Absent an express finding by the primary judge (and there was none) that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen 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: at [69].

4.   It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff: at [96].

In respect of (iii) – (vi)

5.   In light of the findings on issues (i) and (ii), the other issues on appeal did not need to be considered.

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