Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354
Hearing dates: 9 and 10 June 2020
Date of orders: 22 December 2020
Decision date: 22 December 2020
Before: Basten JA at [1];
McCallum JA at [230];
Emmett AJA at [231]
Decision:
(1)   Allow the appeal and set aside orders (1)-(4) made in the Common Law Division on 13 May 2019.
(2)   Declare that the first, second and third respondents are liable in damages to the appellant.
(3)   Direct that the parties confer to determine the extent to which agreement can be reached as to:
(a)   the quantum of damages payable by each respondent;
(b)   the apportionment of liability between the respondents; and
(c)   final orders to dispose of the proceedings.
(4)   Direct that the parties advise the Registrar by Friday, 29 January 2021 as to what issues, if any, are unresolved and what further directions are required for the resolution of any such issues.

Catchwords:
APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact
PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3)
TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B
TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D
TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S
TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32
TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard
TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5F, 5G, 5H, 5I, 5S, 13, 14, 16, 30, 31, 32; Pt 1A, Div 4
Civil Procedure Act 2005 (NSW), ss 60, 61; Pt 6
Evidence Act 1995 (NSW). ss 79, 135
Interpretation Act 1987 (NSW), s 35
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9
Workers Compensation Act 1987 (NSW), ss 151N, 151O, 151Z; Pt 5, Div 3
Wrongs Act 1936 (SA), s 27a
Uniform Civil Procedure Rules 2005 (NSW), r 31.26

Cases Cited:
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874
Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455
Haynes v Harwood [1935] 1 KB 146
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Ogwo v Taylor [1988] AC 431
Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3
Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39
Smith v Baker [1891] AC 325
State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Tiller v Atlantic Coast Line Railroad Co 318 US 54, 69 (1942)
Westpac Banking Corporation v Jamieson [2016] 1 QdR 495; [2015] QCA 50
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22
X v Sydney Children’s Hospitals Speciality Network (No 5) [2011] NSWSC 1351

Texts Cited:
Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed)
Review of the Law of Negligence – Final Report
Commonwealth of Australia, 2002
C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, 2011)

Category: Principal judgment
Parties: Gengiz Capar (Appellant)
SPG Investments Pty Ltd t/as Lidcombe Power Centre (First Respondent)
Business Protection Group Pty Ltd (Second Respondent)
The Workers Compensation Nominal Insurer (Third Respondent)
Representation:
Counsel:
Mr D Campbell SC / Mr E Young (Appellant)
Mr DD Feller SC (First Respondent)
Mr R Cheney SC (Second Respondent)
Mr S Flett/Mr S Blount (Third Respondent)
Solicitors:
Premier Lawyers (Appellant)
Vardanega Roberts (First Respondent)
Clyde & Co (Second Respondent)
Sparke Helmore (Third Respondent)

File Number(s): 2019/159993
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 507

Date of Decision:

13 May 2019

Before:

Bellew J

File Number(s):

2013/78535

headnote

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

In March 2010, the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of the morning of 17 March 2010, an intruder entered the premises by climbing through a gap above an external roller door and up a set of fire stairs. The appellant, who was seated in his office, detected the presence of the intruder near the premises from external CCTV cameras, but lost sight of him, as the CCTV did not extend to an area where other intruders had entered a month earlier.

The appellant left the control room and went to investigate. Upon seeing the appellant, the intruder, who was wielding an axe, began to move towards the appellant and threatened to kill him. Shaken, the appellant escaped to the safety of the control room and called the police, who arrived shortly thereafter. They arrested the intruder, who had himself fled after being accosted by the appellant, outside the Centre. The appellant suffered psychiatric harm as a result of the incident.

The appellant brought proceedings in negligence against the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG Investments to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant’s employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security), with whom Business Protection Group had contracted.

The claims against the owner and security contractor turned on principles governed by the Civil Liability Act 2002 (NSW). The claim against the employer was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW).

After a 12-day hearing in the Common Law Division, all the appellant’s claims were dismissed. The trial judge ultimately concluded that, by leaving the safety of the control room and accosting the intruder, the plaintiff was the “author of his own downfall”. The trial judge contingently assessed damages.

In the Court of Appeal, the following issues were raised:

admissibility of a joint experts’ report on breach of duty and the weight given to the evidence of the appellant’s expert;
the defence of voluntary assumption of risk;
scope of the duty of care owed by each defendant;
breach of duty;
causation; and
assessment of damages.

The Court (Basten JA, McCallum JA agreeing, Emmett AJA dissenting) allowed the appeal and held:

On issue 1: Admission of expert evidence

The reference to the “tender” of a joint expert report under UCPR 31.26(3) does not dispense with the requirements for admission of evidence: [135]. The experts’ report was undoubtedly relevant and should have been admitted at trial and should now be admitted on appeal: [137]. In relation to Mr Flanders’ evidence, the judge was not entitled to reject the evidence in relation to structural defects in the premises but was entitled to reject other aspects not dependent on the witness’ area of expertise: [127].

X v Sydney Children’s Hospitals Speciality Network (No 5) [2011] NSWSC 1351, discussed.

On issue 2: Voluntary assumption of risk

The doctrine of voluntary assumption of risk by people putting themselves into harm’s way to rescue others, or during emergencies, did not support the finding that the appellant was solely responsible for his own misfortune: [61].

McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073; Haynes v Harwood [1935] 1 KB 146; Rootes v Shelton (1972) 128 CLR 99; [1973] HCA 12; Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874, applied.

The appellant’s conduct followed the broad description of steps expected to be taken in the situation: [85], and the instructions in the manual provided to him did not contemplate that he would perform an entirely passive role: [87]. The appellant acted without criticism from management: [88]-[89].

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied.

On issue 3: Duty of care

A duty of care not to cause mental harm is owed only to persons of normal fortitude who might suffer a psychiatric illness in the circumstances of the case: Civil Liability Act 2002 (NSW), s 32. In this case, consistent with the concessions made by the respondents, the evidence supported the conclusion that s 32 was satisfied: [97], [98].

Mount Isa Mines Ltd v Pusey [1967] 1 WLR 912, applied.

The trial judge was correct in finding that each respondent owed the appellant a duty of care: [91]. In particular:

SPG Investments as owner of the premises had responsibility for physical security ([107]) and had knowledge of the roller door gap vulnerability: [145], [148].
Business Protection, as subcontractor of SPG Investments, took responsibility for training security staff and defining the operations to be carried out, upon which a duty to security staff was founded: [115]-[116].
The employer’s duty to the appellant was not in dispute below or on appeal: [117].

On issue 4: Breach of duty (Emmett AJA dissenting)

Each respondent breached its duty to the appellant. There was expert evidence that there were failures in securing the physical security of the premises: [129]. SPG Investments knew, directly or through its agent, of the weakness in physical security prior to 17 March 2010, and that the absence of a physical barrier preventing entry over the roller door was capable of ready rectification, which it took no steps to rectify: [145], [148].
Business Protection failed, following the February break in, to take reasonable steps to see that the premises were secured. There was no basis on which to reach a different conclusion in relation to the appellant’s employer, Dynamite Security: [154], [155]-[156].

On issue 5: Causation

If steps had been taken to prevent entrance to the Centre through the gap above the roller door, the confrontation would not have occurred, and the injury would not have been suffered. Causation was established: [157].

On issue 6: Damages

The Court is able to review and correct the trial judge’s contingent assessment of damages: [186]-[189]. Further submissions are required regarding apportionment and the appropriate calculation of quantum: [223]-[226].

Further observations

Section 5I, dealing with inherent risks, had no application in this case: [172]-[174].
There was no basis to support a finding of contributory negligence, in circumstances where the appellant acted in accordance with what was expected of him and his conduct did not demonstrate a failure to take reasonable care: [175]-[176].
The matter should be finally determined in the Court of the Appeal and not remitted. There was significant delay in resolving this matter: [94], [178]; the nature of the errors identified did not require a retrial and the Court was itself capable of assessing relief, and Part 6 of the Civil Procedure Act 2005 (NSW) mandates the Court to resolve the case finally in such circumstances: [184].

By Emmett AJA, dissenting on the issue of breach:

The duty of an occupier of a building is to take reasonable care for the safety of persons in the building: [248]. The content of that duty in this case did not extend to protecting a security guard from the risk of an intruder: [248]-[255].

Judgment

BASTEN JA: In March 2010 the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of 17 March 2010 an intruder entered the premises; he was accosted by the appellant, whom the intruder, then wielding an axe, threatened to kill. The appellant escaped but suffered mental harm as a result of the encounter.
The appellant (as plaintiff) brought claims in negligence in the Common Law Division against (i) the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant’s employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security). (Dynamite Security having been deregistered by the time of the trial, its defence was run by the Workers Compensation Nominal Insurer, which was also its insurer for personal injury damages claims.)
The proceedings were heard over 12 days in September and December 2017, final submissions being filed in February 2018. On 13 May 2019 the trial judge (Bellew J) dismissed the proceedings against each defendant. [1] The present appeal is brought from the judgments and orders in the Common Law Division. Actions against the owner (SPG investments) and the security contractor (Business Protection) turned on general law principles as modified by the Civil Liability Act 2002 (NSW). As the judge correctly noted, the Civil Liability Act did not apply with respect to the claim against the employer, which was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW), and was thus excluded from the operation of the Civil Liability Act by s 3B(1)(f) of the latter Act.
1. Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 5) [2019] NSWSC 507 (“primary judgment”).
The Civil Liability Act does not prescribe the circumstances under which a duty of care arises; but it does impose constraints on the existence of a duty of care in particular circumstances. The appellant suffered no physical injury, but only mental harm. That factor engaged the constraint on the existence of a duty of care imposed by s 32 of the Civil Liability Act, which provides:

32   Mental harm—duty of care
(1)   A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the 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.
(2)   For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following—
(a)   whether or not the mental harm was suffered as the result of a sudden shock,
(b)   whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c)   the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d)   whether or not there was a pre-existing relationship between the plaintiff and the defendant.
…
(4)   This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

The judge addressed the terms of s 32, concluding that neither SPG Investments nor Business Protection owed the appellant a duty of care, as he did not pass through the gateway of s 32(1). That finding was challenged on the appeal.
There are other provisions in the Act which preclude a finding of liability in circumstances where they are engaged. Relevantly for present purposes, the respondents invoked s 5I, which provides:

5I   No liability for materialisation of inherent risk
(1)   A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)   An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3)   This section does not operate to exclude liability in connection with a duty to warn of a risk.

The trial judge accepted that risk of being attacked by an armed intruder was an “inherent risk” for the purposes of s 5I, which materialised in the harm suffered by the appellant. Accordingly, neither SPG Investments nor Business Protection was liable in negligence for that harm. That finding was challenged.
The respondents (other than the employer) also relied in the course of the trial on the provisions of s 5F and s 5G of the Civil Liability Act. Section 5F defines the meaning of the term “obvious risk” for the purposes of Pt 1A, Div 4 of the Civil Liability Act. Section 5G provides that in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. The trial judge accepted that the risk in question was an obvious risk, but it is not clear how that affected the findings of the case. The judge also found that the appellant was actually aware of the risk. That finding left no room for a presumption. (There was no complaint of failure to warn under s 5H.)
The judge also considered whether the plaintiff had established a duty of care owed to him by each respondent, in accordance with general law principles. It appears that he held that only Dynamite Security owed a duty with relevant content. [2] That finding was relevant to all three respondents and was challenged.
2. Primary judgment at [146].

The incident

The appellant was working as a security guard at the Lidcombe Power Centre on the night of 16/17 March 2010 when, at about 1.15am he confronted an intruder. The intruder was carrying an axe and threatened to kill the appellant. The appellant retreated to his office in the building, severely shaken. From the safety of the office he called police. The basic elements of the incident are not in doubt. Nor was there any doubt that the appellant suffered a psychological injury as a result of the encounter. There was, however, a dispute as to the extent of that injury and its causal relationship with the incident. In 1994 the appellant’s father had murdered his mother; three years later his father died in gaol. There is no doubt that these events had serious consequences for the appellant’s mental health, albeit some 15 years before the events of March 2010. There was an issue as to the extent to which they continued to affect him in March 2010.
In order to understand the circumstances of the incident, it is convenient to have regard to plans of the ground floor and first floor of the premises, which appear at the end of the judgment.
The trial judge accepted the plaintiff’s description of the incident from his first evidentiary statement: [3]
3. Primary judgment at [86], [88].

“[86]   In the first of his evidentiary statements the plaintiff described the subject incident in the following terms:
21.   On 17th March 2010 I was working the 10pm to 6am security shift at Lidcombe Power Centre. I was in the office having something to eat on my break when I noticed on the security camera, a man standing outside the Anaconda store outside the Power Centre. He had a big duffel bag and a cap pulled down so no one could see his face.
22.   I noticed he ran to the roller shutter (where the previous break in happened a few months prior) which is out of sight of the cameras.
23.   I put down my food and knew that something was going on. I grabbed the keys and went to the top level of the shopping centre and waited near where I thought he would come out. I heard footsteps coming up and they were getting louder and my heart was racing and I was getting very nervous.
24.   The man then appeared and I yelled out ‘Security’, before the man dropped the bag and said ‘I am going to kill you’, and he had a huge fireman's axe and started chasing me.
25.   I ran as fast as I could back to the office and was shaking but managed to open the door and lock myself in there. I called the police and thought that I was going to faint and I could hardly talk. The woman on the phone was trying to calm me down. I managed to tell them about the break in that was happening.
26.   The police then called back about ten minutes later to say that they had caught the man and asked if I could come up to the level they were on to give a statement.
27.   The next day I called my supervisor and said that I didn't want to do night shift. He said that I had to as no one else could do it.”

The incident report prepared contemporaneously by the appellant read as follows:

“Nature of incident: Trespassing [box ticked]
Report no: LPK170310-1
Date: 17.3.10
Time of Incident: 01:15
Location of Incident: Level 1 Dicksmith 92 Parramatta Rd Lidcombe Power Centre
Complainant: Gengiz Capar
…
Description of Incident: AT APPROX 01:15 while I was in office on my mealbreak [I] noticed on camera 16 a male person walk past anaconda very fast then he walked over near pet's direct roller shutter so I went up esculator's to have a look as I stood up over esculator's for 30 second's I saw a male person near dick smith with a big axe so I called out hey security then he raised the axe and said I am going to fucken kill you come here and proceded to come towards me so I ran down esculator's to office and rang police and bill and police rang me back and said they caught the offender and they said police will be onsite soon and they came at 0150 I gave police statement and they left site at 0220am.”

Reasoning of trial judge

By reference to various instruction manuals relating to the functions and duties of a security guard, to which reference will be made shortly, the trial judge came to the conclusion that, to the extent the appellant suffered injury, it was, in effect, self-inflicted.

“[109] In acting as he did, the plaintiff completely abandoned the instructions set out in the various manuals of which he was aware and, in doing so, put himself in a position of extreme danger. The plaintiff knew what to do if he became aware of the presence of an intruder on the premises. He knew that pursuing an intruder was not a matter for him and that he should not, under any circumstances, even attempt to approach such a person. The plaintiff, by acting as he did, placed himself in a position of extreme vulnerability, and extreme danger, for which he was solely responsible.”

The reference in the appellant’s statement to the earlier break-in (which occurred on 10 February 2010) will be considered further below. It was relevant in so far as it revealed a weakness in the physical security of the building. There was an important issue in the case as to which of the respondents knew of the break in prior to the March incident.
Immediately following the finding set out above, the trial judge set out two emails which had been sent the following morning. The first was from Mr Stanwix, a senior administrator with Business Protection. The email went to various persons at SPG Investments. It is convenient to set out the whole of the emails as they appeared in the judgment, together with the judge’s comments.

“[110] On 17 March 2010 at 8:10am Mr Stanwix sent an email to a number of people (including Georgia Hall) in the following terms:
Last night during lockdown 2 offenders scaled the shutters and gained access to the centre. The security guard saw this on camera and immediately attended.
The offenders were trying to break into Dick Smith and Spotlight.
The guard confronted them and they produced (and threatened him) with an axe. They ran at the guard with the axe wielding and he sensibly took flight!
The guard made it back to the security office and called Police.
The offenders fled but the guard followed them at a safe distance. He communicated with Police and they apprehended the offenders!
As all the finer details come to hand I will advise so that you can communicate to Dick Smith if you wish.
A great result even though it would have been a terrifying experience for the guard!
I commend his bravery!
Regards,

Richard.
[111] It should be noted that the references to there having been two offenders, and to the guard following the offenders at a safe distance, are not in accordance with the evidence before me.
[112] On 17 March 2010 [Allison] Hall replied to the email of Mr Stanwix in the following terms:
Good Morning All,
I have spoken to Security at Lidcombe regarding the incident last night and it appears we are vulnerable on Level 1 with a small gap between the roller shutter and the balcony. I will start looking at our options as a matter of urgency as this is the second similar incident within a month and we do not want word to get out we are an easy target.
In addition I was contacted by Security at 8.52pm last night regarding the auto doors on Level 1 that would not close. Dorma attended and they were fixed by the shift changeover at 10pm, this is probably not related but worth noting.
Thanks again to Jengas (sic) who handled the situation well with a good outcome.
Kind regards,
[Allison] Hall
Asset Manager
SPG Investments

[113] It is appropriate to note at this point that in the course of final submissions, senior counsel for the plaintiff relied generally upon the contents of these emails, and specifically upon the compliments given to the plaintiff by Mr Stanwix and Ms Hall, as evidence supporting a conclusion that the plaintiff had not breached any security instructions, procedures or protocols at all, or that if he had, any such breach was inconsequential. I accept that this correspondence does not contain any suggestion that the plaintiff breached any instruction, procedure or protocol. However, that is not to the point. For the reasons I have given, the evidence overwhelmingly supports a conclusion that the plaintiff knowingly breached his instructions in a number of material respects.”

As will be noted below, there are inferences which may be drawn as to how those responsible for the Centre viewed the appellant’s conduct; there was no condemnation of him for wilful disregard of orders, nor dereliction of duty.
The trial judge then turned to the report of an expert on security measures, Mr Terrence Flanders, dated 31 July 2013. The judge’s view of Mr Flanders’ evidence was expressed in the following succinct conclusion:

“[128] For these reasons, I place no weight upon his report, his oral evidence, or his opinions.”

The manner in which the judge dealt with Mr Flanders’ evidence, together with his refusal to admit a joint report of three experts, including Mr Flanders, was said by the appellant to infect the findings as to breach of duty. It will be necessary to consider that material below.
The judge then turned his attention to the terms of s 32 of the Civil Liability Act, set out at [4] above. Noting that it qualified what might otherwise give rise to a duty of care owed by a defendant to a plaintiff, he addressed its operation prior to considering whether there was a duty of care under the general law. In doing so, he correctly focused upon the operation of the Act with respect to SPG Investments and Business Protection. Again placing weight upon the conduct of the appellant, which he said “completely defied common sense, and had no legitimate purpose”,[4] the judge concluded that “no person in the plaintiff’s position, who had been given the instructions that the plaintiff had been given, would act in the manner in which the plaintiff acted.”[5] He concluded that neither SPG Investments nor Business Protection owed the plaintiff a duty of care. [6]
4. Primary judgment at [151].
5. Primary judgment at [152].
6. Primary judgment at [154].
For reasons which will be further considered below, the reasoning with respect to s 32 of the Civil Liability Act effectively determined the applicant’s claim on the basis that there was no general law duty of care. However, it was only following that determination that the judge moved to consider common law duties of care as a separate topic, setting out the various submissions with respect to the roles of SPG Investments and Business Protection. With respect to SPG Investments, the judge reached the following conclusion:

“[182] In my view, there was nothing particular about the relationship between SPG and the plaintiff which would support the conclusion that a duty of care, over and above that imposed by the relationship of occupier and entrant, was owed to the plaintiff by SPG. In those circumstances, and bearing in mind that the plaintiff’s asserted injuries were brought about by the unlawful act of a third party, I accept the submission of senior counsel for SPG that it would be generally contrary to both authority and principle to conclude that SPG owed the extended duty of care for which the plaintiff contends.”

While SPG Investments was an occupier of the premises, and owed some duty of care to the appellant as an entrant on the premises, Business Protection was in a different position, having no physical presence on the premises. The judge made the following findings with respect to Business Protection:

“[189]   Firstly, there is unchallenged evidence that the plaintiff wore a uniform which bore the BPG logo.
[190]   Secondly, I am satisfied, for the reasons previously set out, that Bill Morris, the BPG Operations Manager, was at least partly responsible for the plaintiff’s training.
[191]   Thirdly, and consistent with what I have found to be the training role played by Mr Morris, the various manuals which contained the instructions to the plaintiff as to security procedures to be adopted were issued by BPG.
[192]   Fourthly, the email of Mr James, the Managing Director of BPG, of 16 February 2009 prescribed aspects of the system of work to be adopted at the premises. It also directed that any reports in relation to security issues be directed (amongst other people) to him. In these respects BPG had some degree of control over the plaintiff.
[193]   All of this evidence establishes that there was a relationship between BPG and the plaintiff which, relevantly, extended to matters of the system of work, training and reporting. In each of those respects, BPG had some control over the plaintiff’s conduct, and the discharge of his responsibilities. In these circumstances, I am satisfied that the relationship between BPG and the plaintiff was such as to impose a duty of care on BPG to provide the plaintiff with a safe system of work.”

That left the further question identified by the trial judge as “whether not that duty of care extended to a duty to protect the plaintiff from the criminal behaviour of an intruder.”[7] The judge concluded that question in favour of the plaintiff. [8]
7. Primary judgment at [194].
8. Primary judgment at [197].
These conclusions are not easily reconciled with the conclusion at [146] that it was “not reasonably foreseeable to either SPG or BPG that the intruder might threaten the plaintiff in the manner in which he did.”
The judge then had regard to the question of breach. He identified the proper formulation of the risk faced by the plaintiff as “the risk that he might sustain injury as a consequence of an encounter with an intruder.”[9] He concluded that that risk was both foreseeable and not insignificant. [10] (That finding is not easy to reconcile with the manner in which the judge concluded there was no duty owed under s 32 of the Civil Liability Act.) The judge identified the “real question” as “whether a reasonable person in the position of SPG and or BPG would have taken precautions.”[11] The judge answered that question with respect to SPG Investments in the following terms:

“[210] In the case of SPG, the plaintiff placed significant emphasis upon what was submitted to be SPG’s knowledge of the gap over the fire stairs. However, for the reasons I have already expressed the evidence does not satisfy me that SPG was aware of the gap. Beyond that, there is no evidence of any failure on the part of SPG to take precautions to avoid any identified risk. For these reasons I am not satisfied that SPG breached any duty of care that it owed to the plaintiff.”
9. Primary judgment at [207].
10. Primary judgment at [208].
11. Ibid.

With respect to Business Protection, he dismissed the claim that it had not adequately trained the plaintiff,[12] but noted that, through Mr Stanwix, Business Protection was aware of the gap over the roller. However, he was satisfied that Mr Stanwix acted reasonably in the circumstances, given that Business Protection was not an occupier of the premises, with the result that there was no breach of duty on the part of Business Protection. [13]
12. Primary judgment at [211].
13. Primary judgment at [212]-[213].
The judge then dealt with the respondents’ reliance upon what was described as “assumption of risk”, where the risk was an “obvious risk” as defined in s 5F of the Civil Liability Act. Section 5G presumes that the plaintiff was aware of an obvious risk. With respect to those provisions the judge concluded:

“[226] The plaintiff also knew that to act contrary to those instructions, and in particular to pursue the intruder as he did, was inherently dangerous from the point of view of his own safety. His conduct in following the intruder to level one served no purpose whatsoever. Having followed the intruder, the plaintiff inexplicably drew the intruder’s attention to his immediate presence.
[227] The plaintiff made a conscious decision to pursue, and then confront, the intruder, in the knowledge that in doing so he was breaching his instructions, breaching his training, and jeopardising his safety. The plaintiff was aware that there was a risk that he might sustain injury as a consequence of an encounter with an intruder. For these reasons the risk of sustaining injury by a direct encounter with an intruder was obvious to him. It would also have been obvious to any reasonable person in his position.
[228] It follows that as a consequence of the operation of ss 5F and 5G of the CLA the risk of the plaintiff being assaulted was an obvious risk, of which the plaintiff is presumed to have been aware.”

It is not entirely clear whether that reasoning had any consequence for the outcome of the case, even on a contingent basis. On the other hand, such a finding might perhaps have supported the conclusions reached when considering the operation of s 32 of the Civil Liability Act, set out above.
Finally, with respect to SPG Investments and Business Protection, the judge considered the operation of s 5I of the Civil Liability Act, which provides that there is no liability in negligence for harm resulting from “the materialisation of an inherent risk”: s 5I(1). An inherent risk is something that “cannot” be avoided by the exercise of reasonable care and skill. [14] Absent a duty to warn, it is not clear that a finding of the materialisation of inherent risk does more than negate a finding of breach of duty. The judge’s conclusion with respect to the operation of s 5I was as follows:

“[236] In Coco-Cola Amatil (NSW) Pty Limited v Pareezer [15] Young CJ in Eq … observed that every citizen faces an inherent risk of being robbed or shot no matter where he or she is, or what he or she may be doing at the time. Accepting that to be the case, the risk of a security guard facing perils of that nature must be the same if not greater and amounting, in my view, to an inherent risk.
[237] It follows in my view that s 5I of the CLA applies, and that neither SPG nor BPG [is] liable to the plaintiff.” [16]
14. Civil Liability Act, s 5I(2).
15. [2006] NSWCA 45.
16. The judge in fact wrote “are not”, but clearly meant “is”.

The judge dealt with the liability of the employer’s insurer briefly. [17] The reasoning, accepting a duty of care, followed the reasoning in respect of Business Protection, as did the finding that the employer did not breach the duty owed. [18]
17. Primary judgment at [238]-[251].
18. Primary judgment at [250]-[251].
Finally, the judge considered the question of damages, which will be addressed in more detail below.

Grounds of appeal

The issues in the amended notice of appeal, as they arose chronologically at trial, may be summarised as follows:

admissibility of joint experts’ report on breach of duty (grounds 13 and 14); and placing no weight upon the evidence of the appellant’s expert (Mr Flanders) – ground 15;

findings as to duty of care:

as to SPG Investments – grounds 2, 3 and 4;

as to Business Protection – grounds 2, 3 and 5;

breach of duty:

SPG Investments – grounds 6, 7 and 9;

Business Protection – grounds 6, 8 and 9;

the employer – ground 10;

damages – ground 11;

delay – grounds 12 and 16.

Consideration of the last matter, namely an allegation that the findings of fact were “infected by operative delay”, was primarily relevant to questions of relief and may be dealt with in that context.
Although it would be logical to consider questions of admissibility first, both the experts’ joint report and Mr Flanders’ separate evidence were relevant primarily to breach of duty and will be addressed in that context.
Before dealing with issues relevant to a claim in negligence, it is convenient to note specifically the terms of ground 3:

“3.   The primary judge erred in fact and law when making findings to the effect that:
(a)   the appellant was solely responsible for the occasioning of this injury; and
(b)   the appellant knowingly breached his instructions when approaching the area where an intruder had unlawfully entered onto the premises where he was working; and
(c)   the appellant had no legitimate purpose for acting as he did.”

The challenged findings occur in a number of places throughout the judgment, including [109], set out at [14] above. Before addressing the appellant’s complaints with respect to these findings, it is necessary to consider the legal significance of the findings. Generally speaking, the conduct of the plaintiff in circumstances giving rise to injury will not be relevant to an assessment of whether the defendant owed the plaintiff a duty of care, nor as to whether the defendant was in breach of any such duty. It is possible that the plaintiff’s conduct may have broken a causal link between breach of duty and injury, or, more usually, the plaintiff’s conduct may demonstrate contributory negligence.
The trial judge did not reach either of these issues, although both arose on the pleadings. There was no discussion of causation, nor reference to s 5D, the relevant provision of the Civil Liability Act, in the judgment. That is not to say that the judge did not deal with any defences: in fact, he did address concepts identified as “assumption of risk” and “obvious risk”. The latter term (obvious risk) appears in s 5F and 5G of the Civil Liability Act; the term “assumption of risk” does not, although it does appear in the heading to the Division in which those provisions appear. While the judge held that the risk which materialised was an obvious risk, of which the plaintiff was presumed to have been aware,[19] the relationship of that finding to a question of liability of any of the respondents was unclear.
19. Primary judgment at [228].

It is necessary to address these issues: the first respondent, SPG Investments, raised the failure of the appellant to establish causation under s 5D of the Civil Liability Act, and a defence of “voluntary assumption of risk” in a notice of contention. The second respondent, Business Protection, raised the same issues in its notice of contention. The third respondent, Dynamite Security, raised a defence of voluntary assumption of risk pursuant to s 151O of the Workers Compensation Act 1987 (NSW), and contributory negligence, pursuant to s 151N of that Act. There is some irony in the employer’s position, as both ss 151N and 151O limit the availability of such defences. However, more generally, there is a question as to whether “voluntary assumption of risk” provides a defence, or simply a denial of liability. There is a further question as to whether, and if so how, the principle operates in the present circumstances. It is convenient to address these legal issues first, before considering in their logical sequence, (i) duty of care; (ii) breach; (iii) causation; and (iv) damages.

Voluntary assumption of risk

(a) legal principles

For reasons which will be discussed below, the Civil Liability Act neither abolished nor codified common law principles with respect to assumption of risk; rather, s 5F and s 5G appear to have made quite specific changes to one aspect of the doctrine, namely awareness of risk. It is therefore appropriate to commence by identifying the nature of the doctrine under the general law.
As explained by Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19^th ed), “[i]f the claimant voluntarily assumes the risk of the defendant’s negligence he cannot recover: volenti non fit injuria.” [20] However, as the authors further note, the basis on which the doctrine prevents liability has not been satisfactorily established. They continue:

“Is it a denial or is it a defence? If it is a denial, which element of the claimant’s [cause] of action does it negate? … It is suggested that the better view is that the plea of ‘voluntary assumption of risk’ is a denial. It may deny the existence of a duty of care. If, for example, C undertakes to repair the roof of D’s house and while doing so C falls off and injures himself C cannot recover. C’s failure to recover might be dressed up in the language of voluntary assumption of risk but it is fairly clear that the reason why C cannot recover is not that C consented to the risk of injury but that D did not in the first place owe C any duty to instruct C on how to go safely about his task. The plea ‘voluntary assumption of risk’ may also target the breach element of the action in negligence. Suppose that a spectator at a cricket match is struck and injured by a ball which the batsman, having little control of precisely where it will land, has hit as hard as he can. Most lawyers would agree that the claimant has no claim against the batsman and some might say that this was because the spectator had agreed to assume the risks of cricket. But the ultimate reason why there is no liability in this case is because there is no negligence. The batsman has done nothing unreasonable.”
20. Peel and Goudkamp at [26-018].

The same element of duality had been noted in US cases. In Tiller v Atlantic Coast Line Railroad Co,[21] decided after Congress had legislated to abolish the doctrine, Frankfurter J observed:

“The phrase ‘assumption of risk’ is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas. Thus, in the setting of one set of circumstances, ‘assumption of risk’ has been used as a shorthand way of saying that although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with ‘notice’ of such negligence, ‘assumed the risk.’ In such situations ‘assumption of risk’ is a defense which enables a negligent employer to defeat recovery against him. In the setting of a totally different set of circumstances, ‘assumption of risk’ has a totally different meaning. … Here the phrase ‘assumption of risk’ is used simply to convey the idea that the employer was not at fault and therefore not liable.”
21. 318 US 54, 69 (1942).

For the purposes of the Civil Liability Act, the elements of the doctrine are important. Peel and Goudkamp explain: [22]

“The doctrine of voluntary assumption of risk has two elements. These elements are as follows: (1) the claimant must have knowledge of the risk of injury; and (2) the claimant voluntarily agreed to incur the risk of injury.”
22. Peel and Goudkamp at [26-019].

The Civil Liability Act seeks to vary the general law principles regarding the first element by creating a presumption that a person who suffers harm was aware of the risk, if it were an “obvious risk”, as defined in s 5F: the presumption appears in s 5G. According to the Review of the Law of Negligence – Final Report, [23] there was no intention to interfere with what constituted a voluntary assumption, on the basis that that element “is ultimately an evaluative question about which it would be difficult to make general provision.” [24]
23. Commonwealth of Australia, 2002 (Final Report).
24. Final Report, par 8.32.
This approach creates a significant difficulty: how does one assess voluntariness in respect of a risk of which the plaintiff is not actually aware, but only constructively aware in the sense that a reasonable person in his or her position would be so aware?
There is a further difficulty. As Peel and Goudkamp correctly note, there is an overlap between the doctrine of voluntary assumption of risk and contributory negligence. [25] A denial of liability, however, precludes the apportionment of loss which results from the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (“the 1965 Act”), where both parties bear responsibility. Section 9 of the 1965 Act provided that where the plaintiff “suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person … a claim in respect to the damage is not defeated by reason of the contributory negligence … and damages … are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”
25. Peel and Goudkamp at [26-023].
In keeping with the recommendations of the Final Report, the operation of the 1965 Act has been varied by s 5S of the Civil Liability Act, which allows for a reduction of 100%, so that a claim for damages may again in “very rare” cases,[26] be defeated by contributory negligence. The question is whether there may be cases where the judge would not think it just and equitable to assign all responsibility for loss to the claimant, but yet deny liability on the basis that there had been a voluntary assumption of risk.
26. Final Report, [8.25], set out at [47].
In recommending a provision in the form of s 5S, the Final Report stated:

“[8.25] Our view is that while the cases in which it will be appropriate to reduce the damages payable to a contributorily negligent plaintiff by more than 90 per cent will be very rare, there may be cases in which such an outcome would be appropriate in terms of the statutory instruction to reduce the damages to such an extent as the court considers ‘just and equitable’. The sort of case we have in mind is where the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the part of the plaintiff.”

This was not the approach the Final Report adopted with respect to assumption of risk; rather, the relevant discussion commenced with the following propositions:

“[8.23] Voluntary assumption of risk is a complete defence in the sense that it provides the basis for denying the plaintiff any damages at all. A person will be held to have voluntarily assumed a risk only if they were actually aware of the precise risk in question and freely accepted that risk. Since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct. This is because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence. Courts prefer the defence of contributory negligence because it enables them to apportion damages between the parties, thus allowing the plaintiff to recover something, even in cases where the plaintiff bears a very significant share of responsibility for the harm suffered.”

The Final Report did not infer that there was any possible inconsistency between the apportionment of liability under the 1965 Act and the assumption of risk doctrine. Rather, it attributed the decline of the latter to “techniques” used by the courts. The reasoning was as follows:

“[8.28] … Three techniques have been used to this end: first, courts are very unwilling to hold that the plaintiff actually knew of the risk. In order to establish the defence of assumption of risk, it is not enough that the plaintiff ought to have known of the risk. The plaintiff must actually have been aware of the risk. Secondly, courts are unwilling to hold that the plaintiff freely and voluntarily accepted the risk. This is the main reason why the defence has long been effectively unavailable in relation to work risks. [27] Because most decisions to take risks are made subject to some external pressure or influence, it is usually possible to attribute to such pressure the effect of rendering the decision non-voluntary. Thirdly, in this context, courts tend to define risks narrowly and at a relatively high level of detail. The more narrowly a risk is defined, the less likely it is that a person will have been aware of it.”
27. There was no reference to the worker’s compensation legislation.

The recommendations, now found in s 5F and s 5G, sought to (i) reverse the burden of proof where the risk was “obvious”; (ii) allow for constructive knowledge of “obvious” risks, and (iii) define the risk of which the person was aware without reference to precise detail. That left untouched the second and supposedly most significant reason why the defence is effectively unavailable, namely in its operation as to workplace risks.
An obvious difficulty arising from this approach is that in situations such as the present, where the risk arose in the course of employment, partly as a risk for which the employer was responsible, but also as a risk for which others were responsible, the continuing inference is that, in accordance with general law principles regarding defendants other than the employer (whose liability is governed by s 151O of the Workers Compensation Act), it is unlikely that the doctrine of assumption of risk will operate.
It may also be noted that the Final Report’s recommendation 32 with respect to assumption of risk commenced with the chapeau:

“For the purposes of the defence of assumption of risk:”

followed by the three proposed amendments. In the Civil Liability Act, this language does not appear in any provision. Part 1A, Div 4 is headed “Assumption of risk”, but that language is otherwise absent from the operative provisions. The heading to the Division is, according to general principles, part of the Act,[28] but it is not clear what role it plays. Section 5F does no more than define the concept of “obvious risk”. Section 5G(1) provides for the presumption of awareness, absent proof to the contrary on the part of the claimant; that principle is said to apply “[i]n proceedings relating to liability for negligence”, terminology which is indeterminate as to the way in which the provision will operate, but appears to be inconsistent with the absence of a duty of care.

28. Interpretation Act 1987 (NSW), s 35(1).

English case law identifies two respects in which the courts have rejected the doctrine of assumption of risk as a basis for denying liability in circumstances similar to the present. First, there are cases involving systems of work. Thus, the mere fact that the claimant goes to work every day knowing that the workplace is not reasonably safe does not establish that he or she consents to working in conditions which are not reasonably safe. [29] Secondly, there are cases involving emergencies. In Haynes v Harwood [30] the defendant negligently left his horses unattended in the street and a boy threw a stone at the horses, causing them to bolt. The plaintiff, a police constable who sought to bring the horses under control and was injured in so doing, was nevertheless able to recover. Clearly the plaintiff acted in urgent circumstances in a way which was consistent with his function as a police officer. The defendant’s claim that he willingly undertook the risk which materialised was rejected. The same approach has been extended so that police officers who suffered psychiatric injury as a result of work undertaken helping out in the aftermath of the Hillsborough soccer match tragedy were also able to recover. [31] Similar principles have applied in cases involving rescuers, including both professional fire fighters and members of the public. [32]
29. McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073.
30. [1935] 1 KB 146.
31. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310; Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455.
32. Ogwo v Taylor [1988] AC 431 at 447 (Lord Bridge).
These principles have been applied in Australian cases. In Rootes v Shelton,[33] the High Court held that, while a participant in water skiing may be taken to accept risks inherent in the sport, it did not follow that such consent extended to negligence on the part of the driver of the boat. In Caterson v Commissioner for Railways, [34] the High Court upheld a claim by a plaintiff who was carrying a friend’s luggage into a carriage when the train started to move unexpectedly and without warning. The plaintiff jumped onto the platform and was injured. Although the plaintiff might have been considered the author of his own misfortune, by jumping from the moving carriage, he did so having left a young boy on the platform many miles from home and the train’s next stop was 80 miles away. Where the defendant’s negligence placed the plaintiff “in a position in which he has to choose between two dangers” [35] the Court held that the jury was entitled to take the view that there was no contributory negligence, the action having taken place at a time when contributory negligence was a complete defence.
33. (1967) 116 CLR 383; [1967] HCA 39.
34. (1972) 128 CLR 99; [1973] HCA 12.
35. Caterson, p 111 (Gibbs J).
Chapman v Hearse [36] involved a motor vehicle collision which resulted in the driver of one car being thrown onto the road at a time when visibility was poor, the sky overcast and the nearest street lamp was not working. A passing driver, a medical practitioner, Dr Alan Cherry, stopped and sought to attend to the injured driver who was still lying on the roadway. Dr Cherry was run down and killed by a third car which had not been involved in the accident. Proceedings were brought by the executor of Dr Cherry’s estate against the driver of the third vehicle. The driver alleged contributory negligence on the part of Dr Cherry and also sought contribution from the driver who caused the collision of the first and second vehicles. Applying Haynes v Harwood, the High Court held that the possibility that someone might come to the aid of a party injured in the first collision and in turn be injured was reasonably foreseeable, with the result that the driver responsible for the first collision was liable to contribute to the damages payable to Dr Cherry’s estate. [37] In determining liability, the Court stated: [38]

“In pursuing this enquiry it is without significance that Dr Cherry was a medical practitioner or that Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured.”
36. (1961) 106 CLR 112; [1961] HCA 46.
37. Chapman at 120-121.
38. Chapman at 120.

Dr Cherry was held not to have been guilty of contributory negligence. [39]

“It is difficult to see why, upon the evidence, we should entertain the view that Dr Cherry was guilty of contributory negligence. Even more difficult is it to discern any reason why we should interfere with an existing finding to the contrary but the submission was not pressed too far and it is convenient to dispose of it at once. This we may do by asking ourselves whether, in the unusual circumstances of the case, Dr Cherry's conduct involved any departure from the standard which reasonable care for his own safety demanded. To our minds this question can be answered only in one way. He had, naturally enough, come to Chapman's assistance; in the course of attending to Chapman his attention must inevitably have been diverted from the road and if, by reason of this fact, he failed to see the oncoming car until it was too late to get out of its way it would be quite wrong to hold that he was guilty of contributory negligence.”
39. Chapman at 119.

Although there was consideration of whether Dr Cherry’s act was an intervening event which broke the chain of causation between the negligence leading to the initial collision and the injury to Dr Cherry, and addressed the question of contributory negligence, there was no suggestion that there was any voluntary assumption of risk; such a principle would be inconsistent with the analysis set out above as to contributory negligence. [40]
40. At the time of the accident the subject of Chapman v Hearse, contributory negligence was no longer a complete defence: Wrongs Act Amendment Act 1951 (SA), inserting s 27a in the Wrongs Act 1936 (SA) (now the Civil Liability Act 1936 (SA)), which commenced on 13 December 1951.
Nor is any different approach to be found in cases dealing with psychological harm. Thus, in Mount Isa Mines Ltd v Pusey,[41] liability for mental harm was accepted in a case involving a “rescuer”, that is a fellow worker who came to the assistance of two severely injured colleagues and suffered psychological harm as a consequence.
41. (1970) 125 CLR 383; [1970] HCA 60.
Finally, in Wicks v State Rail Authority (NSW) the High Court considered the liability of the State Rail Authority to police officers who attended the Waterfall train derailment in 2003. [42] The focus of the case was the limitation on recovery of damages for pure mental harm under s 30(2) of the Civil Liability Act, which requires the plaintiff to be a close member of the family of the victim, or to have witnessed the victim being killed, injured or put in peril. Section 30(2) provides a limitation on recovery, as does s 32, which imposes a limit on a duty of care not to cause mental harm. [43] No question of voluntary assumption of risk was identified.
42. (2010) 241 CLR 60; [2010] HCA 22.
43. Wicks at [22].
There is thus a long history of claims by persons who have put themselves in the way of danger, not necessarily in the course of a legal duty arising from the course of their employment (as may be the case for professional service providers such as firemen and police) against whom no denial of liability based on the doctrine of voluntary assumption of risk has been raised. It is not possible to infer that the principles applicable in such cases have been determined by the High Court inadvertently, without reference to an established doctrine of voluntary assumption of risk. The correct inference is that no such doctrine has operation in these cases.

To the extent that the finding of the trial judge that the appellant was solely responsible for his own misfortune involved application of the doctrine of voluntary assumption of risk, the finding should be rejected. To the extent that he did not intend such a finding, the respective contentions of the respondents seeking such a finding should be rejected. It is sufficient to note at this point that to the extent that the appellant encountered danger in the course of his employment as the result of negligence on the part of the respondents, he cannot be said to have voluntarily consented to such a risk of harm. The security guard who is shot and killed by an armed robber, in circumstances where his or her employer has negligently failed to supply appropriate protection, cannot be said to have voluntarily consented to the risk of being murdered. If there is a defence of “voluntary assumption of risk” it is not engaged in such cases. Indeed, it has not been for over a century. [44]
44. Smith v Baker [1891] AC 325; C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, 2011), [24.90] (maintaining Prof Fleming’s original text).
It may be noted that the trial judge relied in part on the reasoning of McClellan CJ at CL in Carey v Lake Macquarie City Council. [45] Much of the reasoning is uncontroversial, but other members of the court did not join in his reasons on this issue. [46] Further, the trial judge stated:

“[222] Whether a risk is obvious is an objective determination which is to be made having regard to the circumstances in which the particular plaintiff finds himself or herself. It is not the plaintiff’s state of mind which is relevant, but what a reasonable person in his or her position would regard as obvious. However, the plaintiff’s evidence remains material to that assessment.”
45. [2007] NSWCA 4; (2007) Aust Torts Rep 81-874, at [70]ff, [90], [93].
46. Carey at [3] (point not pressed), (McColl JA), [115]-[117] (inappropriate vehicle) (McDougall J).

McColl JA observed in Carey:

[107] The question is not simply whether the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved a risk of which he or she was aware. There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless. It is not enough that the plaintiff knows of the physical facts or circumstances that constitute the risk and exposes him or herself to them, although proof of this will in many cases be sufficient to support an inference that the plaintiff voluntarily assumed the risk. …
[108] If all that can be proved is that the plaintiff knew about a risk but did not think about it when he or she engaged in conduct that exposed him or her to the risk, the defence has not been made out. To assume a risk, a plaintiff must know about the risk, he or she must turn their mind to it at the relevant time, and he or she must persist in the risky conduct regardless.”

The judge’s statement at [222] did not reflect the relevance of the plaintiff’s state of mind to an assessment of voluntary assumption of risk.

(b) factual circumstances

On one view, the reasoning of the trial judge that the appellant was the author of his own misfortune and thus solely responsible for the harm suffered is best seen as an example of contributory negligence sufficiently serious to engage s 5S of the Civil Liability Act so that any claim for damages is defeated. One reason for addressing it in that context is that no issue will arise unless the appellant has established the existence of a duty of care on the part of a respondent, together with breach of that duty. On the other hand, a strong case can be made to address a claim that there should be no recovery at all, despite an established breach of duty, as properly arising under s 5D(1)(b) and (4); s 5S would then be otiose, but an element of apparent incoherence would be removed. In any event, the judge’s analysis of the appellant’s circumstances on the night in question tended to colour the analysis of breach. Accordingly, it is desirable to address those findings prior to considering the conventional analysis set out below.
The cross-examination of the appellant, based on two particular documents involving operational instructions given to security guards, focused on directions that particular steps were to be taken in the interests of their own safety. Those directions fell into three broad categories, namely (i) general directions to take care, (ii) particular directions addressed to specific circumstances, but which did not arise on the night of the incident and (iii) particular directions addressed to specific circumstances which had application to the incident. For reasons which will be explained, the approach adopted by the cross-examiner was flawed because it failed to address the directions in the context of the appellant’s job description and functions.
The general directions were little more than directions to take care for one’s own safety. That they were deemed necessary reflected the fact that the work of a security guard involves risks to personal safety. The passage relied upon by the trial judge was identified in the following terms:

“[52]   The plaintiff agreed that the work that he performed as a security officer at the premises included doing patrols. 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:
•   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)”

The judge noted the cross-examination on those directions, together with the conclusions he drew from the cross-examination, in the following terms:

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

[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:
(i)   his own safety was the paramount consideration;
(ii)   upon becoming aware of the presence of an intruder he was required to call for assistance; and
(iii)   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.”

The passage of cross-examination is instructive: as the second question and answer revealed, the cross-examiner was focusing entirely on the document and was not interested in how such a broad direction might be understood and applied in the particular circumstances which arose on the night of the incident. The inferences drawn by the judge similarly provided no assistance in respect of the particular events.
The second document was described as Business Protection’s “Standing Operating Procedures”. The document contained 71 separate headings, some of which were directed to Business Protection’s own policies (including those headed “equal employment opportunity”, “harassment/sexual harassment”); some were addressed anodyne topics such as “appearance”, “name tags/identification badges”; others were disciplinary, including bans on smoking and sleeping on duty (clause S9 was headed “talking on duty” and required an officer to give “undivided attention” to his or her duties and to avoid “long and unnecessary conversations”). The cross-examiner focused on S11 which stated that “Officers are not to leave their posts” and are not to engage in “pursuit of offenders”, the latter being “a matter for the Police”. The trial judge treated the appellant’s “post” as the “control room” in the Centre and observed that it would have been difficult “if not impossible, for any person in his position to comply with the instructions 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.” [47] However, the judge said that he was directed not to leave the control room for the purpose of “pursuing intruders”, and was aware of that.
47. Primary judgment at [61]
Reading the clause in context, it seems implausible that the appellant could be treated as pursuing an intruder when leaving the control room to see if an intruder had in fact entered the premises. Nevertheless, the judge concluded:

“[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.”

This passage omits mention of the fact that, as the appellant explained in his evidence, he left the control room because no CCTV camera covered the area above the roller door at the foot of the fire stairs, being an area that the appellant had seen the potential intruder approach, but without knowing whether he had actually obtained access to the building. There was no evidence that he could have seen the intruder in the building from the control room; indeed, the layout of the building as revealed in the evidence suggested otherwise.
The cross-examiner took the appellant to a paragraph headed “S42 Duties and procedures patrol officers” which read as follows:

“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.”

Nothing in the first paragraph was contravened by the appellant on the night in question. The first step he took, positioning himself where he could see the top of the escalator coming up to the first level, was undertaken in order to “discover” whether an intruder was present. He did not attempt to capture him. Nor in fact did he stay to observe the intruder from a distance, given the threat made to him. So far as the second paragraph was concerned, there was no discussion of what was meant by “non-client premises”, but in any event the appellant did not enter particular premises in the Centre, nor did the intruder.
It is convenient to set out a little of the cross-examination relied upon by the trial judge, which read as follows:[48]
48. Primary judgment at [66].

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

If the purpose of the cross-examiner were merely to ensure that the appellant had at some stage (seven years prior to the cross-examination) read and understood the document, the cross-examination would have been unremarkable. However, as the appellant, in seeking to answer by reference to the events on the night of the incident demonstrated, he understood the questioning as relevant to what had happened. As it turned out, his assumption was correct: the cross-examination was relied upon as if it related to the incident on the night in question; there was no recognition that the appellant had sought to indicate that he did not believe that to be the case.
The third document relied upon by the cross-examiner was a further Business Protection document, specific to Lidcombe Power Centre and entitled “Site Operations Manual”. The appellant was taken to two provisions in the manual and asked to read them to himself. The first was clause 35:[49]
49. Primary judgment at [44].

“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.”

He was asked if he had read and understood it “at the time”, which he no doubt understood as being prior to the incident. [50] The cross-examiner simply took him through it. He was not asked if it applied, in his view, to the events of the night in question. At the point at which he knew the man was armed, namely when he saw the man holding an axe and threatening him, he fled to the control room and called the police immediately, which was precisely in accordance with his obligations under the first paragraph of that clause. In fact, unsurprisingly given the circumstances, his failure was to take a note of the person’s height, weight, clothing and age in accordance with the second paragraph. He was not criticised on that score.
50. Tcpt, 19/09/17, p 117(8).
The second passage which was the subject of cross-examination read as follows:[51]
51. Primary judgment at [48].

“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.”

The cross-examination was, again, generic: it simply went through the clause line by line seeking agreement that the appellant understood the instructions. Significantly, however, the following question and answer appeared: [52]
52. Tcpt, p 118(25).

“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.
HIS HONOUR: Just concentrate on the question, Mr Capar.
FELLER
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.”

The point of the cross-examination was unclear, unless the answers were to be misinterpreted. The appellant’s understanding, as suggested by the answer which was said to be irrelevant, was that the earlier incident, in February 2010, had involved a break-in of tenant’s premises, whereas the incident in question did not. The judge’s finding based on the document and the cross-examination was in the following terms:

“[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 first sentence in this reasoning generalised from clause 41 to “any part of the premises where an intruder might be present”. Other inferences drawn were no doubt accepted by the appellant, but they were obvious matters which no person sought to contradict. There was no attempt to address the instruction in the light of evidence as to what the appellant did, and was apparently expected to do, when he attended the February incident. The incident report of the February break-in was as follows:

The primary judge accepted that the appellant’s pre-injury net weekly wages were $680. On the basis of a calculation undertaken as at the date of judgment in the court below, it will be necessary to adjust the plaintiff’s schedule of damages to take account of a longer period of past economic loss, and a shorter period of future economic loss. Further, the schedule calculated annual indexation for past economic loss at 2.5%. It is not clear that there was evidence to support that figure in relation to the security services industry, or at all. In the absence of evidence, the annual increments should be reduced to 2%. Future economic loss should be calculated by reference to anticipated retirement at age 67.
The judge allowed for past treatment expenses in an amount of $34,161.30. That figure is not challenged. The judge allowed a figure for future treatment in an amount of $25,000, assuming the need to unravel treatment resulting from matters, such as marijuana use, extraneous to the injury. For the reasons set out above, in my view that unravelling is only partly appropriate. The plaintiff’s schedule claimed fortnightly attendances on a general practitioner and a continuation of the anti-depressant medication, the latter being calculated at $50 per week. Those two figures were $35,640 and $47,520 respectively. A further $5,000 was proposed in respect of future referrals for specialist treatment. The total for future treatment expenses claimed was thus $88,160.
Given the acceptance by the psychiatrists that the appellant suffers from a chronic post-traumatic-stress disorder and a major depressive condition, the nature of the proposed treatments is not inappropriate. Counselling services have been used in the past by the appellant and might well be found to be valuable in the future. However, the frequency of visits to a general practitioner appears to be overstated. I would allow an amount of $75,000 for future treatment expenses.
Given the slightly extended period, the reduced increments and the 50% reduction, the award for past economic loss is likely to be in the order of $150,000 and the award for future economic loss perhaps a little below $300,000. The actual figures, together with an allowance for superannuation and Fox v Wood damages, should be calculated and, if possible, agreed by the parties. If further calculation or assessment is required of the Court, that will be done by way of written submissions with no further oral hearing required, unless the Court is persuaded that a further oral hearing would be the most efficient way of resolving any outstanding problems.

(g) non-economic loss

That leaves a question as to the calculation of non-economic loss. The judge allowed an amount calculated as 22% of a most extreme case, in accordance with s 16 of the Civil Liability Act. However, on the assumption that the judge underestimated the seriousness of the contribution of the March 2010 incident to the appellant’s mental health, that figure should be increased. The appellant submitted at trial that it should be in the range 40%-55%. However, some allowance should be made for the fact that pain and suffering of the kind now faced by the appellant may have been suffered in non-tortious circumstances in any event. In my view it is appropriate to increase the amount for non-economic loss by approximately one-third, namely to 30% of a most extreme case.

Apportionment

The parties did not address the question of apportionment. There should be an opportunity for further written submissions on this issue. However, some indication should be given in the hope that a common position can be agreed.
Because the reasonable precautions which would have avoided the materialisation of the risk involved a minor alteration, at least on a temporary basis, to the structure of the Centre, primary responsibility lay with SPG Investments. Arguably it should bear something in the order of 50% of the liability for the appellant’s loss.
The remainder must be divided between Business Protection and Dynamite Security. Although an employer will, in fixing a safe system of work, bear the primary responsibility for employee safety, the fact that Business Protection was the party contracted by the owner to provide security services at the Centre, and consequently laid down the relevant processes and procedures to be followed by security staff, demonstrates that it also bears a significant level of responsibility. However, it was not those practices and procedures, nor the system of work, which ultimately failed the appellant. As has been explained, both Business Protection and Dynamite Security had a responsibility to pursue with the owner of the Centre the need for alterations to the physical structure. The responsibility for taking that step may, in broad terms, bear equally on each.
There will be further calculations required as to the assessment of damages as against the third respondent (on behalf of Dynamite Security), and any necessary adjustments pursuant to s 151Z of the Workers Compensation Act. The parties will have leave to make further submissions in relation to that issue, if there remains any outstanding matter in dispute.

Conclusions

The appeal should be allowed and the judgment below set aside. Each respondent owed (or represented a party which owed), and was in breach of, a duty to the appellant to take reasonable care for his safety whilst working as a security guard at the Centre. The various breaches of duty contributed to the psychological harm suffered by the appellant as a result of being threatened by the intruder on 10 March 2010. The appellant was not contributorily negligent. He is entitled to recover damages from each respondent.
It is not possible to make final orders at this stage. The parties should be directed to identify issues which cannot be resolved by agreement and advise the Court accordingly. The matter will then be listed before the Registrar for such further directions as may be required.
The Court should make the following orders and directions:

Allow the appeal and set aside orders (1)-(4) made in the Common Law Division on 13 May 2019.

Declare that the first, second and third respondents are liable in damages to the appellant.

Direct that the parties confer to determine the extent to which agreement can be reached as to:

the quantum of damages payable by each respondent;

the apportionment of liability between the respondents; and

final orders to dispose of the proceedings.

Direct that the parties advise the Registrar by Friday, 29 January 2021 as to what issues, if any, are unresolved and what further directions are required for the resolution of any such issues.

McCALLUM JA: I agree with Basten JA.
EMMETT AJA:

Introduction

This appeal concerns a claim for damages by the appellant, Mr Gengiz Capar, against the three respondents, SPG Investments Pty Ltd (SPG Investments), Business Protection Group Pty Ltd (Business Protection) and the Workers Compensation Nominal Insurer (the Insurer), which is the workers’ compensation insurer of Dynamite Security Protection Services Pty Ltd (Dynamite). Mr Capar’s claim arises out of psychiatric injury that he suffered as a consequence of being threatened by an intruder on premises known as “the Lidcombe Power Centre” (the Premises), where Mr Capar was employed as a security guard. The incident occurred in the early hours of 17 March 2010, when an intruder on the Premises threatened him with an axe. The Premises were owned and operated by SPG Investments. w

Mr Capar sued SPG Investments, Business Protection and Dynamite in the Common Law Division of the Supreme Court, claiming damages on the basis that his psychiatric injury was the result of a breach of the duty that each of those defendants owed to him. Dynamite was deregistered on 7 December 2013 and the Insurer is sued as the entity liable to indemnify Dynamite.
On 13 May 2019, for reasons published on that day, a judge of the Common Law Division (the primary judge) directed the entry of verdict and judgment for each of SPG Investments, Business Protection and the Insurer. His Honour also dismissed cross-claims brought by SPG Investments and Business Protection. By amended notice of appeal of 2 June 2020, Mr Capar appeals from the orders made by the primary judge.
I have had the considerable advantage of reading in draft form the reasons of Basten JA for concluding that the appeal should be allowed. Unfortunately, I have the misfortune to disagree with the conclusion reached by his Honour on a critical aspect of the appeal, namely, whether there was a breach by SPG Investments, Business Protection or Dynamite of a duty owed by any of them to Mr Capar. I have concluded, for reasons that follow, that there was no breach of any duty owed to Mr Capar. Apart from that difference, I agree with the other conclusions reached by Basten JA.

Background

During 2009 and 2010, Mr Capar was employed by Dynamite as a night-time security guard. Dynamite had entered into contractual relations with Business Protection, whereby Dynamite provided Business Protection with labour in the form of security guards. The security guards, including Mr Capar, were required to attend to their duties at the Premises. SPG Investments had entered into contractual relations with Business Protection whereby Business Protection provided security services at the Premises. Mr Capar’s duties required him to man the Premises alone when they were closed at night. He was required to perform patrols of the Premises both internally and externally and had various other responsibilities.
During Mr Capar’s evening shift of 9 and 10 February 2010, two intruders gained entry into the Premises by climbing over a roller shutter that protected one of the fire stairs in the Premises. Mr Capar investigated the intrusion and found that the intruders had smashed their way into a store in the Premises, stole merchandise from the store and decamped. There was no evidence that the intruders were apprehended.
The break-in in February 2010 was reported to the police and was the subject of various emails on the following day between persons involved in the control and management of the Premises. There was a question as to the capacity in which those various persons received the emails. In the course of the emails, the gap above the roller shutter, through which the intruders entered the Premises, was identified as a security weakness. However, nothing was done to rectify the weakness.
In the early morning of 17 March 2010, while attending to his duties alone at the Premises, Mr Capar observed, on the security camera in the security room that he occupied, a man with a duffel bag outside the Premises. The man ran in the direction of the roller shutter where the break-in had occurred in February 2010. That area was out of sight of the camera. Mr Capar left the security room, went up the escalators to a higher level of the Premises and stood there waiting to see whether anybody had entered. Mr Capar observed the man that he had seen on the security camera and called out “security”. The man raised an axe and threatened to kill Mr Capar. Mr Capar turned and ran back to the security room and immediately called the police and his supervisor. The intruder then left the Premises but shortly afterwards was apprehended by police and charged with offences to which he pleaded guilty. As a result of the sudden shock that Mr Capar experienced when threatened, he suffered psychiatric injury.

Mr Capar’s Claims

In his second further amended statement of claim filed on 18 September 2017, Mr Capar asserted that SPG Investments was the owner and occupier and had the care, control and management of the Premises and had entered into contractual arrangements with Business Protection. He asserted that SPG Investments, as the owner and occupier of the Premises, being responsible for their care, control, and management, owed a duty to all persons who were lawfully on the Premises to exercise reasonable care for the safety of such persons.
Secondly, Mr Capar asserted that, having regard to the purpose for which and the circumstances in which he was on the Premises, SPG Investments owed him a more generalised duty of care, arising from its position as occupier, in relation to any risk of injury to which he might have been exposed whilst on the Premises. Finally, Mr Capar asserted that, in the light of the incident of February 2010, the duty of care owed to him by SPG Investments extended to taking reasonable care to protect any security guard, who was in attendance at the Premises when they were closed, from risk of injury following upon the unauthorised entry onto the Premises by any person, where such entry was gained by means of climbing over the roller door.
Mr Capar also asserted that, by reason of its contractual arrangement with SPG Investments, Business Protection 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. He also asserted that, having engaged Dynamite to discharge its contractual obligations to SPG Investments, Business Protection owed Mr Capar a duty of care that 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. Finally, Mr Capar also made the same allegation against Business Protection as he made against SPG Investments in relation to unauthorised entry gained by way of the roller door following the February incident.
Mr Capar’s claim against the Insurer was that, in circumstances where Dynamite employed him as a security guard and, together with Business Protection, directed him to attend at the Premises and undertake security services there, Dynamite 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. Finally, Mr Capar also made the same claim against the Insurer as he made against SPG Investments and Business Protection in relation to unauthorised entry gained by way of the roller door following the February incident.
All three defendants put in issue the precise content of the duty of care owed to Mr Capar, there being no dispute that a duty was owed to him. Each disputed that there was any breach of the duty that it owed to Mr Capar. Each also disputed that Mr Capar’s psychiatric illness was caused by any breach of duty on its part.

The Civil Liability Act

The Civil Liability Act 2002 (NSW) (the Civil Liability Act) does not prescribe the circumstances under which a duty of care arises. However, it imposes constraints on the existence of a duty of care in particular circumstances. The only injury suffered by Mr Capar was mental harm. Accordingly, s 32 of the Civil Liability Act was relevant. Under s 32(1), a person (defendant) does not owe a duty of care to another person (plaintiff) to take care not to cause the plaintiff mental harm unless the 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. Relevantly for the purpose of s 32, the circumstances of the case include whether or not the mental harm was suffered as the result of a sudden shock and whether or not there was a pre-existing relationship between the plaintiff and the defendant. However, s 32 does not require the Court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. That provision does not appear to have any application in the present case.
Section 5I of the Civil Liability Act relevantly provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Section 5G relevantly provides that, in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. SPG Investments and Business Protection both relied on both provisions.

Duty of Care

The primary question is whether the duty of care owed to Mr Capar by any of SPG Investments, Business Protection and Dynamite extended to preventing unauthorised entry into the Premises after hours by an intruder who might, by his actions, cause injury to Mr Capar. Much of the evidence and argument focused on the incident in February 2010, when the two intruders entered the Premises by climbing over the roller shutter in the same way as it appears that the intruder who threatened Mr Capar climbed over on 17 March 2010. There was no suggestion that, prior to the incident in February 2010, any of the parties was aware or had reason to be aware of the possible security defect constituted by the gap between the top of the roller door and the ceiling above it. Essentially, Mr Capar asserted that, because SPG Investments, Business Protection and Dynamite were aware of that defect in the security, they had a duty to Mr Capar to eliminate it. There is considerable dispute as to which of SPG Investments, Business Protection and Dynamite had knowledge of the security deficiency. It is convenient to consider the matter first on the basis that each had relevant knowledge.
It was common ground that SPG Investments owed a duty of care to Mr Capar. On one view, the concession that SPG Investments owed a duty of care to Mr Capar was sufficient to dispose of the issue on the basis that, if there were a means of access to the Premises, which was not properly secured, SPG Investments had the capacity to take reasonable steps to rectify any lack of proper security in relation to access to the Premises.
The duty of an occupier of a building is to take reasonable care for the safety of persons in the building. The question in the appeal was the content of that duty. As the owner of the Premises, SPG Investments had responsibility for the physical elements of the security of the Premises, including doors. The question is whether that duty included providing a secure perimeter during hours when the Premises were not open to the public. More particularly, the question is whether SPG Investments was under a duty to take particular steps in relation to access over the roller door in order to prevent harm to a security guard employed to work alone on the Premises after normal business hours.
Mr Capar’s case must be that SPG Investments owed him a duty to prevent unauthorised entry into the Premises after hours. It is possible to test Mr Capar’s case by considering the position that might have prevailed had the roller door not been present at all. In those circumstances, it would have been possible for intruders to walk up the fire stair in order to gain access to the Premises. On Mr Capar’s case, that would have been a breach of the duty owed to him. It may be that SPG Investments owed a contractual obligation to its tenants to afford security. That, however, is beside the point. The question is whether SPG Investments owed a duty to Mr Capar, a security guard employed by Dynamite, whose services were provided to Business Protection, which had contracted to provide security services to SPG Investments.
The object of Mr Capar’s presence in the Premises was to observe the Premises and, in the event of unauthorised intrusion, to report that circumstance to the police. Clearly, the very fact that Business Protection was retained by SPG Investments to provide security guards indicates an expectation that there may be intruders attempting to gain access to the Premises. It would be curious, therefore, for SPG Investments, as occupier of the Premises, to be held to owe a duty to a security guard, whose function was to report intruders, to take steps to ensure that there were no intruders. I do not consider that SPG Investments owed to Mr Capar the duty formulated above.

The claim against Business Protection and the Insurer was based on the assertion that Mr Capar was not provided with a safe system of work. Business Protection disputed that it owed a duty to Mr Capar to provide him with a safe system of work. I shall assume, for present purposes, that it owed the same duty that Dynamite owed to him as his employer.
The system under which Mr Capar was required to work enabled him, by means of security cameras, to observe the intruder on the morning of 17 March 2010. Mr Capar’s duties did not require him to leave the security room. Had he remained there, there is no reason to doubt that he would have been perfectly safe and would not have been threatened. Nevertheless, Mr Capar left the comfort of the security room in order to ascertain whether or not the person that he had observed on the security camera had in fact gained access to the Premises. He was not required by his system of work to do so. Indeed, it was contended that Mr Capar failed to abide strictly by the instructions of Business Protection as to the manner in which he was to discharge his duties. Thus, by reason of the incident in February 2010, he was aware of the security defect. He hoped that, by making his presence known, the intruder would flee. In fact, the intruder fled without causing any damage to the Premises or stealing any property, but not before making the threat to Mr Capar’s life. In the circumstances, I do not consider that there was a failure by Business Protection or Dynamite to provide Mr Capar with a safe system of work.
It is not clear how close the intruder came to Mr Capar. The evidence rather suggests that it was not closer than 20 or 30 metres. That, it appears, was sufficient, when coupled with the threat of death with the axe, to cause Mr Capar psychiatric injury. The question that arises under s 32 of the Civil Liability Act is whether SPG Investments and Business Protection ought to have foreseen that a person of normal fortitude might, in the circumstances of this case, suffer a recognised psychiatric illness if reasonable care were not taken. The primary judge concluded that it was not reasonably foreseeable that the intruder might threaten Mr Capar in the way in which he did. His Honour also concluded that Mr Capar’s conduct, in drawing attention to his presence, was not foreseeable. The question is whether his Honour erred in those conclusions.
It is arguable that the requirement to consider the circumstances of the case is not a requirement to inquire whether the circumstances were reasonably foreseeable but whether, in the circumstances found, a person of normal fortitude might suffer psychiatric illness. Section 32 would be attracted if SPG Investments, Business Protection or Dynamite ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness as a consequence of a breach of duty owed to Mr Capar.
Business Protection had no physical presence in the Premises and therefore was not an occupier of the Premises. Its liability turned upon its role, either as an employer or as an independent contractor. Business Protection had not delegated its responsibilities entirely to Dynamite. Rather, it maintained a significant degree of control over the services provided by security guards, including by providing training and instructions through the means of manuals and requiring that security guards comply with instruction manuals prepared by it.

Conclusion

Those conclusions would be sufficient to dispose of the proceedings. I would dismiss the appeal with costs.

**********

Endnotes

Decision last updated: 22 December 2020

Key Legal Topics

Areas of Law

Negligence & Tort
Civil Procedure
Contract Law

Legal Concepts

Appeal
Duty of Care
Causation
Damages
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Citations

Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354

Most Recent Citation

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Cases Citing This Decision

2

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Hodson v Hurex Pty Ltd and Lederer Pty Ltd [2024] NSWDC 143

Cases Cited

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Statutory Material Cited

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Carey v Lake Macquarie City Council [2007] NSWCA 4

Caterson v Commissioner for Railways [1973] HCA 12

Vos v Hawkswell [2010] QCA 92

Medium Neutral Citation:	Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354
Hearing dates:	9 and 10 June 2020
Date of orders:	22 December 2020
Decision date:	22 December 2020
Before:	Basten JA at [1]; McCallum JA at [230]; Emmett AJA at [231]
Decision:	(1) Allow the appeal and set aside orders (1)-(4) made in the Common Law Division on 13 May 2019. (2) Declare that the first, second and third respondents are liable in damages to the appellant. (3) Direct that the parties confer to determine the extent to which agreement can be reached as to: (a) the quantum of damages payable by each respondent; (b) the apportionment of liability between the respondents; and (c) final orders to dispose of the proceedings. (4) Direct that the parties advise the Registrar by Friday, 29 January 2021 as to what issues, if any, are unresolved and what further directions are required for the resolution of any such issues.
Catchwords:	APPEALS – orders on appeal – remittal – errors in trial judge’s conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5F, 5G, 5H, 5I, 5S, 13, 14, 16, 30, 31, 32; Pt 1A, Div 4 Civil Procedure Act 2005 (NSW), ss 60, 61; Pt 6 Evidence Act 1995 (NSW). ss 79, 135 Interpretation Act 1987 (NSW), s 35 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Workers Compensation Act 1987 (NSW), ss 151N, 151O, 151Z; Pt 5, Div 3 Wrongs Act 1936 (SA), s 27a Uniform Civil Procedure Rules 2005 (NSW), r 31.26
Cases Cited:	Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874 Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12 Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455 Haynes v Harwood [1935] 1 KB 146 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Ogwo v Taylor [1988] AC 431 Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3 Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39 Smith v Baker [1891] AC 325 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Tiller v Atlantic Coast Line Railroad Co 318 US 54, 69 (1942) Westpac Banking Corporation v Jamieson [2016] 1 QdR 495; [2015] QCA 50 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 X v Sydney Children’s Hospitals Speciality Network (No 5) [2011] NSWSC 1351
Texts Cited:	Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed) Review of the Law of Negligence – Final Report Commonwealth of Australia, 2002 C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, 2011)
Category:	Principal judgment
Parties:	Gengiz Capar (Appellant) SPG Investments Pty Ltd t/as Lidcombe Power Centre (First Respondent) Business Protection Group Pty Ltd (Second Respondent) The Workers Compensation Nominal Insurer (Third Respondent)
Representation:	Counsel: Mr D Campbell SC / Mr E Young (Appellant) Mr DD Feller SC (First Respondent) Mr R Cheney SC (Second Respondent) Mr S Flett/Mr S Blount (Third Respondent) Solicitors: Premier Lawyers (Appellant) Vardanega Roberts (First Respondent) Clyde & Co (Second Respondent) Sparke Helmore (Third Respondent)
File Number(s):	2019/159993
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 507 Date of Decision: 13 May 2019 Before: Bellew J File Number(s): 2013/78535

[2020] NSWCA 354

22 December 2020

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Contract Law

Legal Concepts

Appeal

Duty of Care

Causation

Damages

Expert Evidence

Breach