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

The appeal in *Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre* was heard by Basten and McCallum JJA and Emmett AJA of the Court of Appeal of New South Wales. The appellant, a security guard, suffered psychiatric injury after confronting an intruder at the Lidcombe Power Centre. The appellant alleged negligence against the owner of the shopping centre (first respondent), the security company that employed him (second respondent), and a company engaged by the security company (third respondent). The trial judge had found no liability on the part of the respondents and had made a contingent assessment of damages.

The Court of Appeal was required to determine whether the respondents owed a duty of care to the appellant, whether they breached that duty, and if so, whether that breach caused the appellant's psychiatric injury. Key issues included the existence of a defect in the perimeter security of the shopping centre, specifically a gap above a roller door, and whether the respondents were aware of this defect and failed to take reasonable steps to rectify it. The court also considered whether the appellant was contributorily negligent or had voluntarily assumed the risk of injury, and whether the appellant's psychiatric injury was of a kind that a person of normal fortitude might suffer in the circumstances. The admissibility and weight of expert evidence, particularly a joint report, were also relevant.

The Court of Appeal found that the trial judge erred in concluding there was no liability. The court determined that the respondents were aware of the defect in the perimeter security, which had previously been exploited by an intruder, and had failed to take reasonable steps to address it, thereby breaching their duty of care. The court held that this breach caused the appellant's psychiatric injury, rejecting arguments of contributory negligence and voluntary assumption of risk given the appellant's actions in performing his duties and the nature of the threat he faced. The court also found that the appellant's psychiatric injury was a foreseeable consequence of the breach.

Allowing the appeal, the Court of Appeal set aside the orders of the Common Law Division and declared the respondents liable in damages to the appellant. The court directed the parties to confer to reach agreement on the quantum of damages, the apportionment of liability between the respondents, and final orders. If issues remained unresolved, the parties were to advise the Registrar regarding further directions.