Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors. (No 5)

[2019] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation:

Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors. (No 5) [2019] NSWSC 507

Hearing dates:

18; 19; 20; 21; 22; 25; 26; 27; 28; 29 September 2017; 12; 13 December 2017; Written submissions 15 February 2018.

Date of orders:

13 May 2019

Decision date:

13 May 2019

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1. I enter a verdict and judgment for the first defendant.
2. I enter a verdict and judgment for the second defendant.
3. I enter a verdict and judgment for the third defendant.
4. I dismiss all cross-claims.
5. I reserve the question of costs.
6. I direct each party to provide written submissions to my Associate in respect of costs by Friday 24 May 2019, such submissions not to exceed 3 pages in length in each case.

Catchwords:

TORTS – Negligence – Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Claim for damages for psychiatric injury against the occupier of the premises, the provider of security services and the plaintiff’s employer – Evidence of training undertaken by the plaintiff – Clear instructions as to what to do in the event of an intruder coming on to the premises – Where those instructions directed the plaintiff not to pursue any intruder but to call the police – Where plaintiff understood those instructions and acted completely contrary to them

 

TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Extent to which occupier, service provider and plaintiff’s employer should be held liable for the criminal acts of a third party

 

TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Where plaintiff suffered Post Traumatic Stress Disorder – Liability for mental harm – Whether first and/or second defendant 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 were not taken – No duty of care owed by first or second defendant

 

TORTS – Negligence - Where plaintiff was employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Whether obvious risk – Whether inherent risk

  TORTS – Negligence - Where plaintiff employed as a security guard at commercial premises – Where plaintiff pursued an intruder on the premises – Where plaintiff then encountered the intruder who threatened him with death – Whether plaintiff’s employer breached non-delegable duty to provide a safe system of work – Where plaintiff was trained in procedures to be adopted in the event of an intruder coming on to the premises – Where the plaintiff had been instructed to call the police if an intruder came on to the premises – Where the plaintiff was instructed not to intervene – Where those instructions were ignored by the plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW)
Occupational Health and Safety Act 2000 (NSW)

Cases Cited:

Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Carey v Lake Macquarie City Council [2007] NSWCA 4
Chomentowski v Red Garter Restaurant Limited (1970) 92 WN (NSW) 1070
Clarke v Coleambally Ski Club Inc. [2004] NSWCA 376
Coco-Cola Amatil (NSW) Pty Limited v Pareezer & Ors [2006] NSWCA 45
Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14
Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54
Karatjas v Deakin University (2012) 35 VR 355; [2012] VSCA 53.
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Modbury Triangle Shopping Centre Pty Limited v Anzil & Ors (2000) 205 CLR 254; [2000] HCA 61
Nominal Defendant v Buck Cooper [2017] NSWCA 280; (2017) 82 MVR 254
Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998) HCA 3
Smith v Leurs (1945) 70 CLR 256; [1945] HCA 27
Smith v Littlewoods Organisation Limited [1987] AC 241
Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16; [1986] HCA 1
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wicks v State Rail Authority of NSW (2010) 241 CLR 60; [2010] HCA 22

Texts Cited:

Annotated Civil Liability Act 2002 (NSW) (3rd Edition) (Villa)

Category:

Principal judgment

Parties:

Gengiz Capar – Plaintiff

 

SPG Investments Pty Limited t/a Lidcombe Power Centre – First defendant / First cross-claimant / First cross-defendant to second cross-claim

 

Business Protection Group Pty Limited – Second defendant / First cross-defendant to first cross-claim / Second cross-claimant

 

The Workers Compensation Nominal Insurer – Third defendant / Second cross-defendant to first cross-claim / Second cross-defendant to second cross-claim

  R.W. O’Brien and Associates Pty Ltd – Third cross-defendant to first cross-claim

Representation:

Counsel:
D R Campbell SC and J J Ryan – Plaintiff
D D Feller SC – First defendant
R Cheney SC – Second defendant
S A Flett – Third defendant
N Polin SC – Third cross-defendant

  Solicitors:
Premier Compensation Lawyers – Plaintiff
Vardanega Roberts – First defendant
Clyde & Co – Second defendant
Sparke Helmore – Third defendant
Wotton Kearney – Third cross-defendant

File Number(s):

2013/78535

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 9 February 2010, Gengiz Capar (“the plaintiff”) was carrying out duties as a security guard at the Lidcombe Power Centre located at 92 Parramatta Road, Lidcombe (“the premises”). An alarm sounded and upon making enquiries, the plaintiff observed that a trolley had smashed through the doors of one of the shops located in the premises (“the February incident”). He called his supervisor, who told him to call the police. He did so, and from the plaintiff’s point of view, nothing further came of the February incident.

2. On the evening of 17 March 2010, the plaintiff was again on duty at the premises, performing a shift that commenced at 10:00pm and ended at 6:00am the following day. Whilst he was in the security control room (“the control room”) having a meal, he looked at a CCTV monitor and saw a person (“the intruder”) outside the premises. The intruder then ran towards one end of the premises, before disappearing out of the range of the nearest CCTV camera.

3. The plaintiff decided to leave the control room to investigate the intruder’s presence. He made his way to level one of the premises. Having reached that level, he waited for a short time before the intruder appeared in front of him, in possession of an axe. The plaintiff then identified himself as a security guard, in response to which the intruder said to him:

“I’m going to kill you.”

4. The plaintiff immediately ran back to the control room and locked himself inside before calling the police. The police attended and the intruder was later apprehended. I will refer to the circumstances surrounding the intruder’s presence on the premises as “the subject incident”.

5. It is the plaintiff’s case that the subject incident occurred as a consequence of the negligence of the three defendants. He asserts that as a result, he has suffered chronic Post Traumatic Stress Disorder and associated Depression. He also asserts that he continues to suffer ongoing psychological sequelae, and that he has been rendered permanently unfit for any form of employment. He does not allege that he suffered any physical injury. Each of the defendants has denied liability and a number of cross-claims have been filed.

THE PARTIES

6. As previously noted, the plaintiff was, at the time of the subject incident, working as a security guard at the premises. He has sued three defendants.

7. The first defendant, SPG Investments Pty Limited trading as Lidcombe Power Centre (“SPG”) was the owner of the premises at the time of the subject incident. SPG has filed cross-claims against Business Protection Group Pty Limited (“BPG”), the Worker’s Compensation Nominal Insurer (“the Nominal Insurer”) and R W O’Brien and Associates Pty Limited (“ROB”).

8. BPG, the second defendant, provided security services for SPG at the premises. BPG has filed cross-claims against SPG and the Nominal Insurer.

9. Dynamite Security Protection Services Pty Limited (“Dynamite”) was the plaintiff’s employer at the time of the subject incident. It is now deregistered and its interests are represented by the third defendant, the Nominal Insurer.

AN OVERVIEW OF THE PLAINTIFF’S CASE ON LIABLITY

The plaintiff’s case against SPG

10. The plaintiff asserts that SPG was the owner and occupier, and had the care, control and management of, the premises. He asserts that in or about September 2008, SPG and BPG entered into a contract, pursuant to which BPG agreed to provide SPG with security and related services at the premises.

11. The plaintiff pleads that SPG owed him a duty of care on several bases. In particular, he asserts that:

1. as the owner and occupier of the premises, SPG was responsible for their care, control and management, and owed a duty to exercise reasonable care for the safety of persons who were lawfully on the premises;

2. bearing in mind the purpose for which, and the circumstances in which, he was on the premises at the time, SPG owed him a more generalised duty of care arising from its position as the occupier, in relation to any risk of injury to which he might have been exposed whilst on the premises; and

3. upon the occurrence of the February incident, such duty of care as he was owed by SPG extended (if it did not already do so) to a duty to take reasonable care to protect any security guard who was in attendance at the premises when they were closed, from a risk of injury following upon the unlawful entry onto the premises by any person, where such entry was gained by means of a known gap which existed at one end of the premises.

The plaintiff’s case against BPG

12. As against BPG, the plaintiff asserts that:

1. by reason of its contractual arrangement with SPG, BPG was also an occupier of the premises, and owed a duty to exercise reasonable care for the safety of persons who were lawfully on the premises;

2. having engaged Dynamite to discharge its contractual obligations to SPG, BPG owed the plaintiff a duty of care which was analogous to that owed by an employer to an employee, including a duty to exercise reasonable care in the provision of a safe place of work, a safe system of work, and safe plant and equipment; and

3. upon the occurrence of the February incident, such duty of care as he was owed by BPG extended (if it did not already do so) to a duty to take reasonable care to protect any security guard who was in attendance at the premises when they were closed, from a risk of injury following upon the unlawful entry onto the premises by any person, where such entry was gained by means of a known gap which existed at one end of the premises.

The plaintiff’s case against the Nominal Insurer

13. As against the Nominal Insurer, the plaintiff asserts that:

1. Dynamite employed him as security guard from at least 2009 up to and including 18 March 2010;

2. Dynamite, along with BPG, directed him to attend at the premises and undertake security services there;

3. Dynamite, as his employer, owed him a non-delegable duty to exercise reasonable care for his safety as an employee, including a duty to provide a safe place of work, a safe system of work, and safe plant and equipment; and

4. upon February incident occurring, the duty of care owed by Dynamite extended (if it did not already do so) to a duty to take reasonable care to protect any security guard who was in attendance at the premises when they were closed, from a risk of injury following upon the unlawful entry onto the premises by any person, where such entry was gained by means of a known gap which existed at one end of the premises.

SPG’s case

14. SPG admits ownership of the premises but does not admit that it had responsibility for their care, control and management. SPG asserts that ROB was responsible for such care, control and management pursuant to an agreement under which ROB acted as SPG’s Asset Manager, and that as a consequence, ROB had a duty to take reasonable care in performing that function.

15. SPG concedes that it owed a duty of care to the plaintiff arising from the relationship of occupier and entrant. However, it does not accept that the scope of its duty was as wide as the plaintiff asserts. SPG asserts (inter alia) that it discharged any duty of care that it owed the plaintiff by engaging a competent contractor, namely BPG, to provide security services at the premises. In that respect, SPG accepts that it entered into an agreement with BPG for the provision of those services.

16. SPG also relies, by way of defence, upon various provisions of the Civil Liability Act 2002 (NSW) (“the CLA”).

BPG’s case

17. BPG accepts that it undertook to provide security services at the premises, for which it was remunerated by SPG. However, it does not accept that it owed the plaintiff any duty of care, however that duty might be characterised. BPG further asserts that if, contrary to that position, it is found that it did owe a duty of care to the plaintiff, it discharged that duty, by delegation, through its engagement of Dynamite.

18. BPG also relies upon various provisions of the CLA in defence of the plaintiff’s claim.

The Nominal Insurer’s case

19. The Nominal Insurer asserts that Dynamite did not breach any duty of care it may have owed the plaintiff, because even though such a duty may have been non-delegable, it did not render Dynamite strictly liable for injury to the plaintiff in the absence of a breach of duty by SPG or BPG.

20. Further, the Nominal Insurer asserts that the plaintiff was provided with a system of work which was designed to prevent the very harm that came to him, that it taught the plaintiff that system, and that it ensured that the plaintiff understood it. The Nominal Insurer asserts that in breach of that system of work, the plaintiff confronted an unauthorised intruder, identified himself, and directly exposed himself to the risk of injury that actually occurred. In the alternative, the Nominal Insurer asserts that if a conclusion is reached that Dynamite’s duty to the plaintiff was breached, BPG had effective control of the plaintiff at all relevant times, and that any liability on the part of Dynamite should be reduced accordingly.

ROB’S case

21. No claim is brought against ROB by the plaintiff, BPG or the Nominal Insurer. ROB is joined a party to the proceedings by way of a cross-claim brought by SPG. ROB admits that it received instructions from SPG to provide asset management services, but denies any breach of duty. In view of the conclusions I have reached regarding the position of SPG, it is not necessary for me to further consider ROB’s position.

THE PROVISION OF SECURITY SERVICES AT THE PREMISES

22. A document entitled “Services Agreement" [1] (“the agreement”) between BPG and SPG forms part of the evidence before me. SPG’s address is nominated in the agreement as being care of ROB. The agreement relates to the provision of security services at the premises. The second page of the agreement includes the words “Proposal July 2009”.2 BPG is referred to as the “provider”, and SPG as the “customer”. Clause 7 of the agreement provides that BPG would supply “security services” to SPG, for which SPG was required to pay BPG specific rates of remuneration. The agreement is expressed to commence on 1 July 2009, [2] and to conclude on 30 June 2012. [3] It therefore covers the date of the subject incident.

    1. Exh D1/1 commencing at p.447.

    2. Exh D1/1, p.449.

    3. Exh D1/1, p.459.

23. The copy of the agreement which is in evidence before me is not signed. There is no other evidence which establishes that the agreement, or any other document in a similar form, was ever executed between SPG and BPG.

24. There is, however, other evidence which indicates that BPG provided security services at the premises pursuant to some form of agreement with SPG. That evidence includes a document entitled “Work Order 5068 Approval for Works” [4] (“the Work Order”) which is dated 3 December 2007 and addressed to BPG. It is under the hand of Gary Hodge with a contact email address at ROB. The document is marked for the attention of Gerald James [5] and is in the following terms:

    4. Exh A, p.448.

    5. As discussed further below at [35], Mr James was the Managing Director of BPG.

Dear Gerald

We provide written confirmation for you to proceed with the following work:

Description:      Please proceed with Security Patrols at Auburn Power Centre. Service period ongoing. Any queries please phone the Center (sic) Manager   – Gary Hodge on 02 9648 345.

At:                     92 Parramatta Road

                        Lidcombe 2141 NSW

Contact:             Gary Hodge

                         ROB

                         9690 9422

Agreed Cost:      $13,041.60.

Property ID:      SPG 09/09/5310

Please invoice to SPG Investments Pty Limited C/- Spotlight Management Services Pty Limited, 75 Cecil Street, South Melbourne, 3205. Please ensure that the remittance advice is attached to the invoice.

If you have any queries please contact the undersigned.

25. The evidence before me also includes a Tax Invoice (“the Tax Invoice”) dated 1 April 2010 issued by BPG to SPG. [6] Under the heading “description” the following appears in the Tax Invoice:

Work Order 5068 Period 01.03.10 – 31.03.10 24/7 Security Services at Lidcombe Power Centre 744 normal hours at $29.80.

$22,171.20.

6. Exh D1/1 at p.509.

26. The Work Order is therefore expressly referred to in the Tax Invoice. The period to which the Tax Invoice relates encompasses the date of the subject incident.

27. On the basis of this evidence, I am satisfied that at the time of the subject incident there was an agreement in place between SPG and BPG, pursuant to which BPG undertook to, and did, provide SPG with security services at the premises. Beyond that, I am unable to make any findings as to any remaining terms and conditions of that agreement.

28. I am also satisfied that BPG engaged Dynamite to provide the security services at the premises. [7]

    7. Exh D2/2.

THE PREMISES

29. The premises were located on the southern side of Parramatta Road, Lidcombe and extended over two levels. [8] At the ground level there were entry gates which provided access during business hours, [9] along with a concourse or plaza area at the street front. Within the premises, there were escalators located between two restaurants. [10] The control room was located on the ground level near the escalators [11] . There were a number of shops and showrooms on the ground level. There were also two separate sets of fire stairs leading to level one, one of which was located towards the eastern end of the premises, and the other towards the western end.

    8. Exh D2/1.

    9. T143.15 and following.

    10. Exh D2/1; Exh D1/3.

    11. Exh D2/1, photographs 6-10 of Exh D1/2; T82.9-T82.40; T235.16.

30. Over each of the fire stairs was a roller shutter. [12] Each roller shutter was positioned in a way which left a gap near the fire stairs, through which it was possible to gain entry to the premises even when they were otherwise closed and secured, and even when each shutter was fully pulled down, and in place. [13]

    12. Exh D2/1.

    13. Exh D1/2, photographs 8 and 9.

29. On level one of the premises there were other shops and showrooms. In particular, there were two adjoining shops at the far eastern end of level one which were occupied by a business known as “Spotlight”. [14] Along the side of level one facing Parramatta Road there was a pedestrian concourse [15] which could be accessed via the fire stairs, as well as by the escalators.

    14. Exh D2/1.

    15. Exh D1/3.

30. Both levels of the premises could also be accessed from a car park located on each of those levels. Access was gained via automatic sliding doors [16] which malfunctioned intermittently. [17]

    16. T128.36-T129.5.

    17. T129.7-T129.9.

THE PLAINTIFF’S EMPLOYMENT AS A SECURITY GUARD

33. In the first of his evidentiary statements [18] the plaintiff set out his employment history in the security industry in the period leading up to the subject incident: [19]

9.   After I came out of my depression in 1998 I did training work as a Security Guard for various companies. This was a lot of day work guarding gates and doors.

10.   In 2000 I worked for Chubb Security as a Transit Security Officer during the Olympic Games.

11.   From 2007 to 2009 I worked for SNP Security at Sydney Airport, screening passengers and baggage.

12.   Since 2009 I have worked for Dynamite Security, P.O. Box 566, The Boulevard, Punchbowl NSW 2196, Ph: 0401 873 267, predominately at Lidcombe Power Centre.

18. Exh. A p. 340.

19. Commencing at para 9.

34. Later in this judgment[20] when dealing with damages, I have addressed the circumstances surrounding the death of the plaintiff’s mother which led to the depression to which the plaintiff referred in his statement. At this point, it is sufficient to note that the plaintiff agreed in cross-examination that by 2000 he had sufficiently recovered from the circumstances stemming from his mother’s death to be able to undertake training with a view to obtaining his security licence. He explained [21] that he wanted to “better” himself and obtain employment, and felt that he was able to do so. He said that even though he was suffering from flashbacks “here and there”, he had “worked through everything”. He undertook a security course, at the completion of which he was awarded certificates 1A, 1B and 1C which entitled him to perform guard, patrol and crowd control duties. [22]

    20. Commencing at [256].

    21. Commencing at T43.9.

    22. T41.5-T41.27.

THE PLAINTIFF’S EMPLOYMENT WITH DYNAMITE

35. The plaintiff commenced working with Dynamite in 2009, having found the position by looking in the newspaper. [23] At his initial interview, his duties were explained as including “locking up gates, checking things and just general duties (and) patrolling”. [24] He was told [25] that he would be required to undergo a period of training and was introduced to a number of people, including Bill Morris [26] who was the Operations Manager for BPG. Gerald James was Managing Director of BPG. [27]

    23. T67.6.

    24. T67.35.

    25. Commencing at T67.37.

    26. T67.41-T68.8.

    27. Exh D1/1 p. 275.

36. The plaintiff explained that his initial interview with Mr Morris took between 10 and 15 minutes, following which he participated in a number of training modules [28] which involved familiarising himself with the premises and learning things such as the location of the control room, the positioning of the security cameras, the operation of the CCTV console, and the procedure for locking the premises. [29] He also recalled being asked to complete a number of forms and sign them. [30]

    28. T68.25-26; Exh. D1/1 p, 409-435.

    29. Commencing at T70.29.

    30. T68.25-30.

37. The plaintiff’s evidence was that he understood Mr Morris to be an employee of “Dynamite and BPG”. He said that he (the plaintiff) wore a uniform bearing the BPG logo. [31]

    31. T68.8.

38. I am satisfied that Mr Morris, in his capacity as the Operations Manager for BPG, was at least partly responsible for the plaintiff’s training. Quite apart from the evidence of the plaintiff to which I have referred, the name of Mr Morris appears (along with that of the plaintiff) on one of the manuals to which I have referred below. [32]

    32. See [43] below.

39. There is no dispute that the plaintiff was employed by Dynamite at the time of the subject incident. However, there is evidence that BPG had some input into devising the plaintiff’s system of work. On 16 February 2009 Mr James forwarded an email to Mr Abdul Morris of Dynamite (not to be confused with Mr Morris, the Operations Manager of SPG) [33] in (inter alia) the following terms:

    33. Exh. D2/2 at p. 9-10.

*Standard Duties

Lidcombe Power Centre

Basement – Patrol of all car park bays & common areas

Ground – Patrol all common areas

Building levels – Patrol of all levels

Building levels – Check corridor lights above and car park entries

Building levels – Check garbage chute room & bins

Reporting – Broken items, lights requiring replacement, incidents, breaches

Mail collection area

Review all incidents via CCTV

Visit stores just to be visual only

Attend to retail store issue .. air con, heating, etc etc.

Lock up and open procedures

Carry site phone at all times

Carry centre keys at all times (GMK)

Do not engage in any confrontation with people (retail stores will handle this and the centre manager). Security are to observe and review and protect the customers. All issues must be reported to your office for action & response (Dynamite Security).

Report all incidents or issues to centre manager. Incident reports must be acted on immediately to ensure the Risk is controlled.

All reports to be sent to:

Gerald email or fax

Morris Email or fax

Gary Hodge (centre manager) email or place hard copy on desk/Gary will advise the course of action to be taken on all issues.

A hard copy for filing

I will adjust any procedure once authorised by the client.

Please ensure the SOP, work Health & Safety Risk management Plan forms (sic) into your security officers induction and training. It’s important that they understand how important it is to ensure safety and following procedures.

Regards,

Gerald James

Managing Director

Business Protection Group.

40. Later the same day, Mr Morris replied in the following terms:

Good morning,

I have read the security procedures and will advise bill (sic) to implement to the security officers. I will ensure the paperwork is on file on site and (sic) my office. Bill will have the security officer’s (sic) sign and acknowledge.

I have also received the Work Health & Safety/Risk Management Plan. I have given this to bill (sic) to fill out and he will and I will ensure that these documents are party of Dynamite Security officers induction and understanding your recommendation and process.

Bill will be your direct contact for Dynamite Security as he will be on site for immediate response (sic) all other issues will come to me.

Thank you,

Dynamite Group Solutions

Morris

General Manager

41. In devising these aspects of the plaintiff’s system of work, BPG exercised some control over the plaintiff. That control included directing the plaintiff as to certain aspects of how he was to carry out his duties, and the procedure he was to follow if any incident arose.

THE MANUALS

42. There were a number of manuals issued in relation to the premises which incorporated (inter alia) instructions to be followed by security personnel in relation to both the day to day operation of the premises, as well as in relation to specific incidents. Those manuals, and the plaintiff’s understanding of some of the instructions contained in them, are significant.

The Operations Manual

43. One of the manuals to which the plaintiff had access was entitled “Lidcombe Power Centre, 92 Parramatta Road, Lidcombe (NSW) Site Operations Manual” (“the Operations Manual”). Whilst there are two copies of the Operations Manual in evidence, [34] the contact list on one of them bears the name of the plaintiff as well as that of Bill Morris. [35] I infer in those circumstances that it was this version to which the plaintiff was given access when he commenced employment. I am fortified in that view by the plaintiff’s evidence [36] that the contact list in that document bears the name of a number of other persons who were his fellow workers. That is usefully contrasted with another version of the Operations Manual which is in evidence [37] , the names on which do not include that of the plaintiff. [38] It is evident from its title page [39] that the Operations Manual was issued by BPG.

    34. Exh. D1/1, p 218A; Exh D1/1, p 272.

    35. Exh D1/1, p.221.

    36. Commencing at T115.28.

    37. Commencing at Exh. D1/1 p.272.

    38. Exh D1/1, p.275.

    39. Exh D1/1, p 273.

44. Clause 35 of the Operations Manual was in the following terms:

35. Armed Person/s

If security personnel see, find, notice any person armed with any weapon or item which you believe may be used to cause harm call the police immediately.

Take a note of the person’s height, weight, clothing, age, vehicle registration, direction when leaving and weapons or item description.

Call and wait for the police to arrive. Pass on all information to Police.

Contact the site supervisor, Centre Management and BPG Management. Security personnel will need to complete an incident report (my emphasis in each case).

45. The plaintiff generally agreed [40] that this was one of the provisions of the Operations Manual with which he had familiarised himself, and said that he had “probably” read it and understood it. [41] On the basis of that evidence, as well as that which follows, I am satisfied that he was familiar with clause 35, that he had read it, and that he understood it.

    40. At T117.3.

    41. T117.8 – T117.9.

46. The plaintiff was cross-examined about the contents of clause 35: [42]

    42. Commencing at T117.11.

Q. If you can just look at it a bit more closely, it was dealing with armed persons?

A. Yes.

Q. And it said that, "If security personnel see, find or notice any person armed with any weapon, or item which you believe may be used and can cause harm, call the police immediately."

A. Mm-hmm.

Q. That was pretty clear, wasn't it?

A. Yeah.

Q. You understood why it was necessary to call the police immediately if you saw somebody who was armed or had something that could be used to cause harm?

A. Mm-hmm.

Q. And that was because not doing so could cause you to come into the way of harm?

A. Correct.

Q. Then a little bit further on, "Call and wait for the police to arrive"?

A. Yeah, I can see that.

Q. Yes. And you understood that meant that you call the police and then did nothing until the police arrived, didn't you?

A. Virtually, yeah.

Q. And that was, again, for your own personal safety?

A. Mm hmm.

Q. Because you weren’t armed?

A. No.

Q. You weren’t trained to tackle anybody who was armed?

A. No.

Q. And it wasn’t a very smart thing to do to tackle somebody who’s armed--

A. Of course.

47. Bearing in mind the finding that I have reached regarding the plaintiff’s familiarity with the terms of this provision, [43] and having regard to his evidence, I am satisfied that the plaintiff clearly understood that in the event that he saw somebody on the premises who was armed, or who was in possession of something that could be used to cause harm, he was to call the police and do nothing else until they arrived. I am also satisfied he understood that part of the underlying rationale for the instructions contained in clause 35 was to ensure his own personal safety, in circumstances where he was not armed, and was not trained in how to deal with anybody who might be armed.

    43. At [45] above.

48. Clause 41 of the Operations Manual was in the following terms: [44]

    44. Exh D1/1 p.331.

41. Tenant Break-ins

When finding a tenants (sic) premise has been broken into or forced entry has been identified, security personnel are to do as follows:

• Do not enter premises (offenders still may be on site)

• Back off and retreat to a safe distance to where you can still see the premise (sic) clearly

• Call for back (sic) (either other guard or Victoria Police)

• Contact the after-hours (sic) for the premises.

• Wait for the police to arrive

• Enter premises with Police

• Check for any damage and/or stolen items.

• Inform after-hours, centre management, Site supervisor and BPG management.

• Stay on site till after-hours and provide assistance.

• Security personnel will be required to enter this in daily log and complete an incident report (my emphasis in each case).

49. The plaintiff agreed, and I am satisfied, that he was familiar with the instructions contained in this provision. [45] He was cross-examined about those instructions as follows: [46]

    45. T118.9-10.

    46. Commencing at T118.12.

Q. And a break in means that somebody breaks into the premises. Correct?

A. Mm hmm.

Q. And you understood that a person could break into premises without actually breaking anything?

A. What do you mean by that?

Q. If somebody illegally entered the premises, that was regarded as a break in, wasn’t it?

A. Yeah, if they broke the window or door to go in to steal something, yeah, of course.

Q. All right. And you understood that in the event of a break in, the site operations manual required you not to enter the premises? Item the first bullet point?

A. Well, if you’re referring to the first break and enter before--

Q. No, Mr Capar, I’m referring to what’s on this document.

…

Q. You see the first bullet point said, “Do not enter premises. Offenders still may be inside.”

A. Well, yeah, of course.

Q. And that was just plain common sense, wasn’t it?

A. Well, virtually, yeah.

Q. And it said “Back off and retreat to a safe distance where you can still see the premises clearly”.

A. Well, yeah.

Q. That meant don’t go anywhere near the offender. Correct?

A. Well, of course not.

Q. “Call for back”. That meant - you understood that meant call for back up?

A. Well, call for police, of course, yes.

…

Q. It said “Wait for the police to arrive”.

A. Mm hmm.

Q. And check - “enter the premises with police”. So you understood that--

A. Well, yeah, I have to give them a statement while I go up there, of course.

Q. That's right. So you understood that your own safety was paramount and you weren’t to do anything unless the police were there.

…

Q. You understood that the gist of this was to say that you weren’t to go anywhere near somebody who had entered the premises illegally and that you’re only to approach that person once the police were there.

A. Well, yeah, if he was still there or if he took off, yeah.

50. Based on this evidence, the plaintiff clearly understood that it was dangerous to go to any part of the premises where an intruder might be present. He also understood the related necessity to keep a safe distance away from any intruder. He also understood the express instruction in clause 41 that in the event that an intruder came on to the premises he was to “back off”, retreat to a safe distance, call the police and wait for them to arrive. I am further satisfied, given his evidence, that the plaintiff was aware that these instructions were put in place with a view to ensuring his safety, and that he knew that acting contrary to such instructions would have the potential to jeopardise that safety.

The Work Health and Safety Management Plan

51. Another document to which the plaintiff had access was the “Work Health and Safety Management Plan” (“the Management Plan”) which was also issued by BPG. [47] The plaintiff agreed that this was “probably” a document which was at the premises, and with which had familiarised himself. [48] I am satisfied that the plaintiff was familiar with its contents.

    47. Exh D1/1 at p.179.

    48. T120.12 – T120.14.

52. The plaintiff agreed that the work that he performed as a security officer at the premises included doing patrols. [49] Under the heading “Mobile Patrols – Venue Protection – Alert Installation”, the Management Plan identified a number of hazards which could possibly arise at the premises. One such hazard, referred to in clause 10, was that of assault. In that context, a number of instructions relevant to dealing with intruders and offenders were set out in the following terms: [50]

• Consider own personal safety first

• Always call for assistance/back up/instruction from control room

• Do not resist or cause conflict

• Follow hold up procedure

• At all times adhere to Firearms legislation

• Follow procedure for patrol officers (my emphasis in each case)

49. T120.16 – T120.18.

50. Exh D1/1 p.192.

53. A separate section of the Management Plan was headed “Venue Protection”. It identified other possible hazards, and contained instructions as to the procedures to be implemented in relation to them with a view to maintaining safety. Clause 10 in that section was identical to the terms of clause 10 set out at [52] above.

54. The plaintiff was cross-examined about the instructions contained in these parts of the Management Plan: [51]

Q. Did you understand that, again, to be telling you that your own personal safety was paramount?

A. Well, that's correct, yeah.

Q. And that you should call for assistance and backup, and not take any action, on your account, to confront an intruder or an offender?

A. Well, if you're talking about that night, the alarm went off, and I had to go check

Q. Mr Capar, I'm asking you about what you understood this document to be requiring you to do …

A. Yeah, I understand the, yeah, call for help, the police, the supervisor. Yeah, I get what you're saying.

51. Commencing at T120.40.

55. I am satisfied that the plaintiff clearly understood that at all times, but particularly in the event of an intruder coming on to the premises:

1. his own safety was the paramount consideration;

2. upon becoming aware of the presence of an intruder he was required to call for assistance; and

3. he was not to act in a way which jeopardised his own safety.

56. Importantly, he understood all of this to be the case in circumstances where it was obvious that an intruder could be a dangerous criminal.

Standing Operating Procedures

57. A further document issued by BPG was entitled “Standing Operating Procedures” (“the Operating Procedures”). [52] The plaintiff agreed that this was “probably” a document which had been made available to him and with which he had familiarised himself, but said that he could not “recall everything”. [53] I am satisfied that the document had been made available to him, and that he was familiar with its contents.

    52. Exh D1/1 at p.349.

    53. T121.17 – T121.19.

58. Clause S11 of the Operating Procedures was in the following terms: [54]

S11 Leaving your post

Officers are not to leave their posts unless properly relieved, or upon instructions or permissions of a superior, or client, or to assist another officer, or to assist an injured person, or in the case of fire or other similar emergency or extenuating circumstances or when requiring a toilet break. When leaving a post under such circumstances, the officer should endeavour to notify control or another officer, or take any other precautions necessary for the protection of their posts during their absence such as lock gates etc. if needed.

Similarly patrol officers are not permitted to leave their allotted rounds unless specifically instructed by management. Pursuits of offenders is (sic) a matter for the Police (my emphasis in each case).

54. Exh D1/1 p.356.

59. In respect of this instruction the plaintiff was asked: [55]

Q. Now, if you go to page 356, there was an item S11 which had the heading Leaving of Post. Do you see that?

A. Yeah, I can.

Q. All right, and that said that “Officers are not to leave their posts unless properly relieved or upon instructions or permission of a superior or client or to assist another officer or assist an injured person,” et cetera. Do you see that?

A. Yeah. So what are you trying to say? I can’t leave my post?

…

Q. The question is that you understood that when you were at your post, carrying out a particular aspect of your work, you weren’t allowed to leave that post unless you followed the procedure. Correct?

A. Nah, it’s incorrect.

55. T122.21 – T122.24.

60. On the evidence before me, the plaintiff was the only security guard on duty at the time of the subject incident. As I have noted [56] it had been explained to him when he commenced working at the premises that his responsibilities included locking them up. Discharging that particular responsibility obviously necessitated his absence from the control room.

    56. At [35] above.

60. If one regards the control room as the plaintiff’s “post” for the purposes of clause S11, it would have been difficult, if not impossible, for any person in his position to comply with the instructions contained in that clause, given that he was the only person on duty on the evening of the subject incident, and was therefore responsible for tasks which necessarily required him to leave the control room. There is, therefore, a degree of incongruity between the instruction contained in clause S11, and the reality of the duties and responsibilities of the plaintiff’s position. That said, for the reasons I have already set out, the plaintiff knew that pursuing intruders was a matter for the police and not the security staff, and that he should not leave the control room for the purpose of doing so.

61. Under the heading “Robbery Procedure”, the Operating Procedures contained the following instructions: [57]

In order to provide the most effective protection for staff, clients and the property, an officer should be prepared to take prompt and appropriate action in the case of a robbery.

The Officer should not attempt to interface with the offenders or make any attempt to apprehend or chase the offenders unless the immediate events unfold that gives the officer, in their opinion, no other reasonable choice. The Officer, providing they can do so without any risk to themselves or other persons, should raise the alarm by the most expedient means available. This may mean using your two-way radio or leaving the immediate area to access a telephone in order to contact the police on the emergency 000 number.

The officer should then observe the situation and mentally note all the relevant details and descriptions appropriate to the offenders and the means of transport etc. Officers are to record all details in the incident report or official statement at the earliest possible convenience.

Even if the officer is armed, response should be exactly the same. The officer is not use their firearm to prevent the robbery. The officer may only use the firearm for his or her own protection or to protect the lives of others. Even then, firearms should only be used when the lives of innocent people are not in danger.

The officer must be aware and remember that the primary function of a Security Officer is Prevention not Apprehension. They must Observe and Report, first and foremost, and intervene only if given no other choice (my emphasis in each case).

57. Exh D1/1 p.363.

63. These instructions were drawn to the plaintiff’s attention in cross-examination: [58]

Q. And you understood that very clearly to be saying that under no circumstances were you to intervene or interfere or approach an offender and that your job wasn't to apprehend or do anything of that sort but simply to notify the police.

A. Well, yeah, of course.

58. Commencing at T123.23.

64. The plaintiff’s admitted understanding of that particular instruction was unequivocal. He knew that if he became aware of the presence of an intruder on the premises, he had a responsibility to call the police. He specifically understood that under no circumstances was he to attempt to intervene by interfering with, or approaching, the intruder. He knew that attempting such intervention was not part of his job.

65. Under the heading “Offenders on Premises” the Operating Procedures instructed as follows: [59]

If offenders are discovered on a client’s premises, immediately contact, notify the police. Do not attempt to capture the offenders on their own unless circumstances allow you no other choice of action. Whilst waiting for the police to attend leave the premises normally and observe from a remote position. Assist the police as directed when they arrive but don’t be a hindrance.

If you see an offender on a non-client premises, do not enter the premises but contact office or the Operations Manager immediately for notification to the police, and if possible remain and observe from a remote position. Record all activity in the security logbook in case a statement is required at a later time (my emphasis in each case).

59. Exh D1/1 p.366.

66. The plaintiff agreed [60] that this was another provision with which he had familiarised himself, and I am satisfied that this is so. He was cross-examined about it as follows: [61]

    60. T124.4.

    61. Commencing at T124.26.

Q. The question was this, that you understood very clearly that you were being told in no uncertain language that you were not to go anywhere near an offender on the premises and that the very first thing that you had to do was to call the police and wait for the police, didn't you?

A. I know what you're saying, but in relation to that I had to get - leave my post and see what was actually happening--

…

Q. Mr Capar, you'll get a chance to talk about the incident a little bit later. But at the moment I'm just directing your attention to your understanding of the instructions that you had as to how you were to conduct yourself. You understand what I'm putting to you?

A. Yeah, obviously.

Q. And you understood that in the clearest of language you've been told that if there was an offender on the premises you were to keep clear of the offender unless circumstances allowed you no other choice of action. You understood--

A. Well, that's correct.

Q. So, if you had a choice of action, the choice you were required to make was to stay away from the offender and call the police and stay out of the way until the police came. You understood that, didn't you?

A. Well, I don’t believe so but--

Q. You didn't - do you say--

A. I can't--

Q. Just a moment. Do you say you didn't--

…

Q. I'd like you to just focus on what I'm asking you, which is the understanding you had of the instruction you received from your employer, as to how you were to conduct yourself. I'm not asking you about what might have happened later, but simply what you understood your requirements to be. Do you understand that?

A. Well, yeah.

Q. And you understood, that in no uncertain terms, the instruction was that if there was an offender on the premises, unless you had no other choice of action, you were to stay clear of the offender, and call the police, and wait until the police arrived. Correct?

A. Yeah.

Q. Now, the next paragraph in that section said, also, "If you see an offender on a non-client premises, do not enter the premises, but contact the head office, or the operations manager immediately, for a notification to the police, and if possible, remain and observe from a remote position." You see that?

A. Whereabouts is it

Q. This is the second paragraph in that section headed Offenders on Premises.

A. Okay. Yeah, well, I was observing. That's why I went up to the top, to see what the problem was.

Q. Mr Capar, you understood the instruction to be that if there was an offender on the premises

A. Mm-hmm.

Q. You had to stay right away, you had to be remote. You understood that, didn't you?

A. Well, if there was the problem, of course I had to investigate it.

Q. Mr Capar, I realise that you want to keep talking about the incident, but you'll get a chance not too far in the future. I'm just asking you about your understanding of the instructions you had.

A. Yeah, observe from the cameras. I get what you're saying. That's what I did.

67. Contrary to the plaintiff’s assertions, he did not have to leave his post to investigate anything. He was aware of the presence of the intruder because he saw him on the CCTV footage from within the safe confines of the control room. He also knew, as a result of his familiarity with the instructions contained in the various manuals to which I have referred, that if he became aware of an intruder on the premises he was to keep clear, call the police, and wait for them to arrive. All of that could have been done from within the control room.

68. Under the heading “Monitored Alarm Client” [62] the Operating Procedures contained the following further instructions:

    62. Exh D1/1 p.367-368.

When directed by control to attend the premises of a monitored alarm client that has gone into alarm makes certain that control has notified the police, where such notification is appropriate, (multi-sector etc).

If you hold keys to the premises, follow this procedure:

1)   Thoroughly check the exterior of the premises for any signs of entry. If there are any signs of illegal entry DO NOT ENTER and call the police.

2)   Enter with extreme caution.

3)   Check alarm panel to determine what sector is in alarm.

4)   Switch off the system and thoroughly investigate the entire complex.

5)   Advise the relevant monitoring company of the full and precise details of your investigation, be it the result of a genuine or false alarm.

6)   Leave an alarm docket on the panel or designated place, advising the client on the date, time and sector(s) you attended.

7)   Reset the alarm and check with the relevant monitoring company for a full seal, then the premises.

8)   If unable to obtain a seal, advise relevant monitoring company accordingly and follow their instructions.

When following up any alarm situation you must be satisfied in your own mind and to the best of your ability that –

1)    The entire complex was thoroughly investigated and nothing was found to be disturbed.

2)   The alarm call was either a genuine or false alarm.

3)   All information was recorded by the relevant monitoring company for advice to the after-hours contact.

Remember, before leaving any client’s premises, reset the alarm and check that the relevant monitoring company that a full seal has been obtained. If you are uncertain of the internal layout of the alarm system for any clients for whom you hold keys, check with relevant monitoring company.

Also, the handling of police in Alarm situations is important. Usually they will follow your lead due to the assumption that you know more about the premises than they do, but occasionally they will want to be in control, if so, let them, it’s their error. You must be confident when dealing with police or else you will not earn their respect (my emphasis).

69. The plaintiff was cross-examined further: [63]

    63. Commencing at T126.38.

Q. Mr Capar, so when you embarked on your work at the Lidcombe Power Centre, you understood very clearly that your role was that of an observer?

A. Yeah, observed the cameras, and things like that, yes.

Q. And if you saw that somebody was on the premises, your role was to notify the police immediately?

A. Or look on the cameras, and see what they're actually doing, and then, I suppose, see what's going on, yeah, then notify police and the supervisor.

Q. Mr Capar, if you saw, on the cameras, that somebody had illegally entered the premises

A. Mm-hmm.

Q. You knew what they were doing, you knew that they were up to no good, didn't you?

A. Well, yeah, obviously.

Q. So there would be no reason why you wouldn't notify the police immediately, upon seeing that someone had entered the premises illegally, would there?

A. Well, I had to go observe and see what

Q. Mr Capar, please answer my question.

A. They did.

…

Q. The question was this: if you saw on your camera that someone had illegally entered the premises, you wouldn't need to investigate what they were doing because you knew straight away that they shouldn't be in the premises, didn't you?

A. Well, I - yeah.

Q. That's correct, isn't it?

A. Well, the way you're saying it's not really. I observe

Q. Mr Capar

A. In case they - - -

…

WITNESS: - - - case they took off and there was a false alarm. Yeah, then rang the police and supervisor.

HIS HONOUR

Q. But Mr Capar, what's being put to you is this: that when you realised somebody was on the premises after hours, you must have realised that they were up to no good. Do you agree with that?

A. Yeah, I agree with that. Yes.

FELLER

Q. And if you saw that somebody was carrying a weapon, for example, you'd really know that they're up to no good, wouldn't you?

A. Yeah, if I monitor it on the camera, yeah.

Q. Or even if you suspected that they were carrying some type of a concealed weapon, then you'd really think they're up to no good?

A. Well, how can I tell if they've got something concealed?

Q. Well, because they shouldn't be on the premises in the first place, should they?

A. Well, yeah. After hours, that's correct.

Q. And if you saw somebody on the premises illegally after hours, then you would know that they had either forced entry into the premises or somehow gained entry in a way which wasn't authorised?

A. That's incorrect 'cause there was bowling all night so there was people walking around. Sometimes the electric slide doors were no good so people would walk in. I'd go tell 'em what's happening and they go, "Oh, we want to go to the bowling and things like that." So the centre wasn't up to scratch.

70. In summary, and in light of the evidence I have set out, I am satisfied that at the time of the subject incident the plaintiff knew and understood (inter alia) that:

1. it was dangerous to go to any part of the premises where an intruder might be present;

2. there was a consequent necessity to keep a safe distance away;

3. there was an express instruction in clause 41 of Operations Manual that in the event that an intruder came onto the premises who was armed, or who appeared to be in possession of something that could cause harm, he was to “back off”, call the police, and wait for them to arrive;

4. in the event that an intruder did come on to the premises, his (i.e. the plaintiff’s) own safety was the paramount consideration, and he was not to act in a way which jeopardised that safety;

5. pursuing intruders was the responsibility of police, not security staff; and

6. the underlying rationale of all of these matters was, at least in part, the preservation of his own safety.

THE FEBRUARY INCIDENT

71. On 9 February 2010 the plaintiff was on duty at the premises when he heard an alarm sound. He initially thought that it might be a false alarm but when it continued to sound he decided to investigate it. When he did so, he found that a trolley had smashed through the doors of the Spotlight store on level one of the premises. He went inside the store but could not find anyone there. He then called his supervisor who told him to call the police and report the matter, which he did. [64]

    64. Exh A, p 340 commencing at para.19; T182.9-T182.36; T183.3.

72. Along with his supervisor, the plaintiff then reviewed the CCTV footage which had been taken at the time of the alarm sounding. [65] He initially said in his evidence that the footage showed “two persons entering the complex over a gap above a roller shutter”. [66] When cross-examined [67] he conceded that the footage did not show anybody entering the premises in that way, but simply showed two people moving in and about the area where a roller shutter was located. That said, the overwhelming inference is that two people gained entry to the premises at the time of the February incident through a gap near the roller shutter over one of the sets of fire stairs, although I am not able to say which set. I am satisfied that neither of the persons who gained entry on that occasion was the intruder who gained access to the premises at the time of the subject incident. [68]

    65. Exh A, p 341, para. 20.

    66. Exh A, p 341, para. 20.

    67. Commencing at T183.3.

    68. T184.35-T184.37.

EVENTS FOLLOWING THE FEBRUARY INCIDENT

73. At 8:21am on 10 February 2010 a person described as “Janet” forwarded an email to a number of persons regarding the February incident. Her email originated from what was described as “045 Lidcombe Manager. [69] At the foot of her email were the words:

Spotlight Lidcombe

Lidcombe Power Centre, 92 Parramatta Road Lidcombe 2141.

69. Exh D1/1 p. 482.

74. Her email was in the following terms: [70]

Morning, please be advised, our store got broken into last night.

I will send photos through to you tomorrow. However, they used our trolleys to smash our front door in.

We have organised the door to be replaced hopefully before end of trade, can’t see any stock taken.

If you have any further inquiries please don’t hesitate to call.

70. Exh D1/1 p.483.

75. Janet has not been otherwise identified. However, given what appears at the foot of her email, and given her reference to “our store” being the subject of a break-in, I infer that she worked for Spotlight at its store which was located at the premises.

76. Included in those persons to whom Janet’s email was sent was Georgia Hall. Ms Hall responded at 8:29am: [71]

Hi Janet, please ensure as previously discussed, you contact the police and supply them with the CCTV footage from the Centre. Also, please request an Event No from them you can use to follow up on any outstanding issues, arrests etc.

Also, before you open, would you please request DTL’s and team members to walk the floor and check for any missing merchandise, emergency exit doors wedged, blu-tac/chewing gum open, fire extinguishers, footprints on counters and also look up and check the ceiling areas, especially near the cash office in lay-by. It may be an idea to check your alarm/back of house panels to ensure they aren’t damaged and the POS drawers to check for same.

Please advise the status of all this or any further damage. Also, please let us know when you have contacted the police and made the report after checking the store. Thanks Janet.

If I can assist any further just give me a call.

71. Exh D1/1 p.481-482.

77. The email from Ms Hall included the following electronic signature:

Georgia Hall

Risk Management

Spotlight Pty Limited

Level 6, 111 Cecil Street South Melbourne 3205

78. I infer from those circumstances that Ms Hall was also an employee of Spotlight.

79. At 9:47am Janet sent a further email to Ms Hall [72] in the following terms:

Hi Georgia,

Based on the cctv footage from Centre Management it was a male and lady and did get stock out of the store. The police came out last night and are coming in today for the cctv footage.

Thanks

Janet

72. Exh D1/1 p. 480-481.

80. At 11:58am on the same day Richard Stanwix of BPG forwarded an email to “Marc Thompson (Property)” and Gerald James headed “Lidcombe break-in” [73] which was in the following terms:

The break in occurred via entry “over” an (sic) roller shutter. They allegedly used the trolley to break the glass which activated the alarm. The control room called the guard who was at 10 Pin City and the John Street Gates. Guard attended but in the few minutes and on route they threw the items over the balcony and absconded.

The site security will have all the reporting paperwork and Centre Manager/Asset Managers have been advised by centre security.

I have reviewed the closing and patrolling procedures performed by the security officers and all is fine. The issue will be with the gap on top of the roller door which you will need to asses (sic) and make arrangements.

73. Exh D1/1 p.479.

81. There is an issue as to whether SPG became aware of the February incident at or around the time that it occurred, and thus became aware of the gap near the roller shutter through which the intruders gained access on that occasion. Senior Counsel for SPG submitted that the communications set out above centred upon the fact that the Spotlight premises has been broken into, and that there was no evidence as to the nature of any relationship between Spotlight and SPG, and thus no evidence that SPG was made aware of the gap.

82. Senior counsel for the plaintiff submitted that I would be satisfied of the relevant connection between SPG and Spotlight, and satisfied that SPG had become aware of the February incident, and aware of the gap through which entry was gained on that occasion.

83. Although there is evidence that some employees of SPG became aware of the gap at or around the time of the subject incident, [74] there is no direct evidence that any person within SPG was informed of the February incident around the time that it occurred. More specifically, there is no direct evidence that any person within SPG was informed of the existence of the gap over the fire stairs at each end of the ground level of the premises at the time of the February incident. In that regard, it is significant that out of all of the correspondence which I have set out above, the only reference to entry having been gained through the gap at the time of the February incident was contained in the email of Mr Stanwix. [75] Mr Stanwix was an employee of BPG, not SPG. [76] His email was sent to two persons. The first, Mr James, was the Managing Director of BPG. The second, Mr Thompson, appears to have been an employee of ROB. As far as Janet is concerned, she appears to have been employed by Spotlight, as was Ms Hall. Spotlight obviously had a store at the premises, but there is no evidence of any other association between Spotlight and SPG.

    74. See for example an email from Alison Hall on 17 March 2018 at Exh D1/1 p. 508.

    75. At [80] above.

    76. See for example Exh D2/2 at p. 11.

A. I'm not quite sure what you're asking me. If you're asking me if a patient or a client is consistently untruthful or malingering, yes, the answer would be I agree with you. On the other hand, self-serving behaviour and mistakes of timing and mistakes of place and mistakes of all sorts of things can reasonably honestly occur in the course of a history, and then it would not apply.

274. Commencing at T364.9.

296. Dr Lewin, who examined the plaintiff on behalf of SPG, expressed conclusions which were diametrically opposed to those of Dr Phillips. In his report of 5 December 2013 Dr Lewin expressed the following conclusion: [275]

Mr Capar described a single episode where he was threatened with an axe. He recalled that he was told “I am going to kill you”. The offender came as close as 10 metres. The offender did not strike Mr Capar and the matter was very quickly resolved.

I considered the question of whether these events satisfied the first diagnostic criteria with regard (sic) Post Traumatic Stress Disorder. Based on those facts, it is reasonable to conclude that he could have felt fearful or terrified.

Mr Capar currently describes a range of reactive symptoms of depression and anxiety. Those symptoms occur against the background of a far more severe problem of substance use. He described almost daily use of marijuana in relatively large quantity (sic). Those quantities are certainly sufficient to give rise to a pattern of chronic intoxication with marijuana. Mr Capar described the onset of substance use prior to the events of March 2010.

In my opinion, the primary diagnosis is a physical diagnosis. Mr Capar is dependent upon marijuana. This explains many of his symptoms, including his vague presentation, his undue suspiciousness and dysphoric disturbance of mood. Similar comments could be made with regard to the ongoing pattern of abuse of alcohol.

Based upon the history reported by Mr Capar, I found evidence of dependence upon marijuana, abuse of alcohol, chronic Post Traumatic Stress Disorder and a Depressive Reaction.

…

If the diagnosis of Post Traumatic Stress Disorder is accepted, it is possible that the condition arises as the consequence of a death of a parent, for the reasons given above. I think it far less likely that this condition arose as the consequence of the events described in March 2010. However, I concede that such a causal hypothesis is possible (if unlikely) based upon a marked degree of premorbid vulnerability…Without the premorbid vulnerability, I think it most unlikely indeed that there is any causal relationship.

275. Exh D1/1 p. 119 – 120.

297. In cross-examination Dr Lewin said that the evidence suggested that, at the very least, the subject incident led to a worsening of something that was already there or in other words, an exacerbation. [276] He agreed that the alternative hypothesis was that posited by Dr Phillips, namely that it was a “fresh trigger super imposed upon a pre-existing vulnerability. [277]

     276. T471.23 – T471.25.

     277. T471.33 – T471.37.

298. Dr Lewin was taken to the evidence of the plaintiff’s former partner Melissa Smith. Ms Smith had no recollection of the plaintiff becoming very depressed in late 2003 or early 2004, nor did she have any recollection of him seeing doctors around that time, yet this was at a time when their relationship had started. [278] Whilst she was familiar with Dr Summers [279] the plaintiff had not told her that he was seeing Dr Summers and she did not know, one way or the other, whether the plaintiff was seeing any medical practitioner and obtaining treatment for depression in 2004. [280] Ms Smith maintained [281] that in 2005 the plaintiff appeared “just normal”. [282] In terms of the plaintiff’s use of marijuana, Ms Smith that they had “tried it” [283] but that neither she nor the plaintiff were using it “like for a regular thing, day in and day out”. [284]

     278. T303.34 – T303.46.

     279. T306.29.

     280. T306.31 – T306.50.

     281. T310.39 – T310.42.

     282. T310.39 – T310.42.

     283. T311.46.

     284. T312.2.

299. Dr Lewin accepted that if Ms Smith’s account was an accurate, it would be entirely inconsistent with the plaintiff suffering from any form of depressive illness prior to the subject incident. [285] The difficulty is that in light of the medical evidence to which I have referred, particularly some of the clinical notes, Ms Smith’s account is not an accurate one. In my view, little weight can be attached to it.

     285. T450.11 – T450.14.

300. In my view, the opinions of Dr Lewin should be accepted. There is a clear difficulty accepting the opinion of Dr Phillips in the light of the history that he was given.

301. I accept that the subject incident, involving as it did a threat of death, would have been a traumatic event from the plaintiff’s point of view. As Dr Lewin opined it is reasonable to conclude that the incident could have left the plaintiff feeling fearful or terrified. I accept that there was a degree of chronic post–traumatic stress disorder suffered by the plaintiff following the subject incident. However, that disorder must be viewed against the background of the plaintiff’s medical and other history which I have outlined and which included circumstances surrounding the death of his mother and his consistent use of marijuana.

302. In my view, the appropriate assessment in terms of non-economic loss is that the plaintiff’s injuries constitute 25% of a most extreme case. [286]

ECONOMIC LOSS

286. CLA s16.

The plaintiff’s work history

303. In the first of his evidentiary statements [287] the plaintiff gave the following work history: [288]

10.   In 2000 I worked for Chubb Security as a Transit Security Officer    during the Olympic Games.

11.   From 2007 to 2009 I worked for SNP Security at Sydney Airport,    screening passengers and baggage.

12.   Since 2009 I work for Dynamite Security, PO Box 566, The Boulevard,    Punchbowl, NSW 2196, predominately at Lidcombe Power Centre.

287. Commencing at Exh. A p.339.

288. Commencing at para.10.

304. The plaintiff was cross-examined about the positions that he had previously held as a security officer: [289]

     289. Commencing at T43.24.

Q. Now, would it also be correct to say that none of those jobs that you had were satisfactory as far as you were concerned?

A. Some of them were just temporary, like, a day or two here and there or the boss wanted to see how I worked and get reports back to see if he'd give me more shifts and things like that, but yeah, most of them were - yeah.

Q. Well, is it in the nature of security work that it tends to be casual and dependent on what shifts you can get?

A. Yeah, casual, but then they want to see your abilities and how you work and that, then they give you part-time or full-time or more days.

Q. Now, was your first security job with Chubb as a transit officer on trains during the Olympic year?

A. That's correct.

Q. And that was a casual position, was it not?

A. Yeah, casual, part-time - I was getting three to four days a week, or something like that, yeah, or extra shifts.

Q. Did you want to work full-time at that stage or were you content to work part-time?

A. I didn't care what they gave me, as long as I was working, whether it was part-time or full-time, but yeah, I did want more work, yeah.

Q. So you felt that you were mentally able to do the work?

A. Correct, yes.

Q. And this job lasted for about eight months, correct?

A. That's right.

Q. And it ended with your being sacked?

A. Yeah, due to their negligence.

Q. Yes - well, wasn't it the situation that you gave them a very late notification about

A. No, that's incorrect.

HIS HONOUR: Well, perhaps before you answer the question, perhaps you should let counsel finish it. Do you want to actually finish that question, Mr Feller?

FELLER: All right.

Q. Well, you see, haven't you given an account to Dr Roberts about making a call from a four wheel drive?

A. No, I informed someone there - that the situation - they then pass it onto the supervisor, which was higher up than that person, and he didn't know about it, and then he wanted my uniform back and said I was fired.

Q. When you say that

A. Between them, it was a miscommunication, but I gave ample notice, so it was their fault.

Q. Are we talking about you not being to turn up for work on one particular day?

A. I believe - I think so, yes.

Q. And the allegation, or the accusation, against you was that you didn't give sufficient notice?

A. No, that's incorrect.

Q. Perhaps we're at cross purposes. Chubb said that you didn't give him enough notice.

A. No, that's incorrect. I did, actually. And

HIS HONOUR

Q. I know you say you did, but what's being put to you is that Chubb said, rightly or wrongly, that you didn't give them enough notice. Is that correct, or?

A. Well, that's what they reckon, but

Q. That's all I'm asking. That's what they reckon, you denied that?

A. Right.

FELLER

Q. In any event, they gave you the sack and asked you to return your uniform. Correct?

A. Yes, that's right.

Q. Then, you were out of work for a period of time?

A. Yes, that's right.

Q. How long?

A. I don't recall; I was just looking for other jobs in the newspaper.

Q. They were hard to come by, were they?

A. Sometimes, because, you know, I'm not a big person and they want big people. I'm only little, so yeah.

Q. Was it also your experience that it was in the nature of the security industry that work tended to be intermittent? In other words, occasionally.

A. What do you mean by that question? That I didn't find work straight away?

Q. Yes, it wasn't that easy to find work straight away because it wasn't always available.

A. Well, I rang up, made appointments and went to interviews. They said they'd get back to me, which, yeah, most of them didn't get back to me.

Q. You then found a job which was two days per week. Correct?

A. Which company was that?

Q. I think you told Dr Roberts that you worked as a guard at Government House.

A. That's correct, yeah.

Q. And that was a part time job?

A. Correct.

Q. You left that job of your own volition?

A. Yes, that's correct.

Q. Why did you leave that job?

A. Because the boss was lying to me.

Q. Lying to you about what?

A. Giving me extra work. I had proved myself for a while, he got reports back saying that I was a good guard and everything, and he just didn't have the extra work or didn't want to give me extra work. I'm not sure, to be quite honest, so I'm not going to stay there if I've proved myself.

Q. Were you having disputes with your boss?

A. No, not physical or anything like that.

Q. Verbal?

A. Verbal more like, yeah. Talking.

Q. So you didn't get on with your boss?

A. No, I got on with him.

Q. But they sacked you anyway?

A. No, I left. I didn't get sacked.

Q. Then after that, you had, again, work from time to time in the security industry?

A. That's correct, yes.

Q. And you felt that the people in the security industry generally tended not to look after you. Would that be correct?

A. Yeah, here and there. You know, in workplaces, you've got people that, you know, discriminate. "Look at him, you know, he's not big. Why should he be here?" and other things like that.

Q. So would it be correct to say that for a number of years after you obtained your security license, you just worked intermittently? Do you understand what I mean by the word "intermittently"?

A. Is that "here and there"?

Q. Here and there.

A. Yeah, more like, yeah. I wanted something more for long, but like I said, you know, I was making appointments, going. They didn't get back to me because I'm not a big stature of a person; I'm only little, so, you know. Yeah.

Q. So in between jobs, how did you spend your time?

A. More like, just looking for jobs. Yeah.

Q. You then took a position at Sydney airport as a screening officer, and you were there for a period of time. Correct?

A. Correct.

Q. Do you recall how long you were there?

A. A bit over a year and a half, maybe coming up to two years.

Q. Do you remember which years you were there?

A. 2007 to 2009, I think. Yeah. Ten years ago.

Q. And you left that position yourself. Correct?

A. Yeah. No, actually. They fired me.

Q. Did they fire you because you were handing them medical certificates for sick days?

A. Incorrect. Just sometimes, when I had a cold.

Q. Didn't you tell Dr Wendy Roberts that the reason that you were fired was because you were giving them medical certificates for sick days?

A. Sick days here and there, but I didn't turn up to most of the shifts because they were ridiculous. Four hours in the afternoon and I just didn't want to do that; I wasn't making much money.

Q. Can I just see if I understand what you're saying; you had a good job at Sydney airport, but you didn't want to do the shifts they were giving you because the money wasn't good enough?

A. No, the money was good. It wasn't the best job, though. They were just giving me ridiculous shifts.

Q. So you didn't like the shifts they were allocating to you?

A. Correct.

Q. So you didn't bother turning up?

A. Correct.

Q. No doubt, you weren't surprised when they sacked you.

A. No, I wasn't surprised.

Q. Well, you didn't have a great work ethic at that time, did you, Mr Capar?

A. No, I did. I was a good screening officer, I did my job properly.

Q. Why didn't you do the shifts they were giving you?

A. Because I spoke to them about it and I just didn't want to do it. Why should I go there for four hours?

305. The plaintiff’s pre-accident employment history does him no favours. The history is limited and includes instances in which the plaintiff had his employment terminated. Those passages of the plaintiff’s evidence set out above reflected a clear tendency on the part of the plaintiff to blame others for those occasions on which he lost his employment. They also reflected a poor attitude to employment generally.

306. The plaintiff’s entitlement to future economic loss is governed by s 13 of the CLA which is in the following terms:

13   Future economic loss--claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

307. The plaintiff’s work history prior to the subject incident consisted of positions which were part-time, casual or intermittent. In the light of that history, and in the light of the plaintiff’s medical history, I cannot be satisfied that but for the subject incident, he would have continued to work as a security officer. In the light of his history, it seems to me that the most likely scenario was that the plaintiff employed, if at all, on the same intermittent, casual or part-time bases as was the position prior to the subject incident.

308. I would allow past economic loss of 6 months at a rate of $680.00 pw.

309. As to the future, I would allow a buffer of $25,000.00.

TREATMENT EXPENSES

310. Past treatment expenses are assessed at $34,161.30

311. It is conceivable that the plaintiff will have some treatment expenses in the future, although there is an obvious difficulty in unravelling whether the need for any treatment stems from marijuana use or other matters extraneous to any injury he may have suffered in the subject incident. I would allow future treatment expenses of $25,000.00.

ORDERS

1. I enter a verdict and judgment for the first defendant.

2. I enter a verdict and judgment for the second defendant.

3. I enter a verdict and judgment for the third defendant.

4. I dismiss all cross-claims.

5. I reserve the question of costs.

6. I direct each party to provide written submissions to my Associate in respect of costs by Friday 24 May 2019, such submissions not to exceed 3 pages in length in each case.

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Endnotes

Decision last updated: 13 May 2019