Cheng Fung Pty Ltd v Heloui

In *Cheng Fung Pty Ltd v Heloui*, the New South Wales Court of Appeal considered an appeal by the employer, Cheng Fung Pty Ltd, against a finding of negligence. The respondent, a pizza delivery driver employed by the appellant, suffered psychiatric injury after being robbed while on a delivery. The dispute centred on whether the employer had breached its duty of care to provide a safe system of work by failing to adequately protect the driver from the foreseeable risk of robbery.

The primary legal issue before the Court of Appeal was whether the trial judge had erred in finding the employer negligent. This involved determining whether the employer ought to have foreseen the risk of robbery to its delivery drivers, particularly in circumstances involving mobile phone orders from new customers where a call back to the provided number was unanswered, and whether the employer had taken reasonable steps to mitigate such risks.

The Court of Appeal reasoned that the evidence supported a finding of negligence. It noted that the Bankstown area, where the delivery occurred, had a high crime rate, and the employer was aware of this and had previously been robbed at the pizzeria. The employer had instructed drivers to be careful and to hand over money and pizzas if threatened. While the employer provided some training on dealing with armed robbery, the specifics were unclear. Crucially, the employer recognised certain circumstances as suspicious, such as orders from public phones or requests for delivery to public parks, and had a practice of attempting to call back numbers to verify orders. The trial judge was entitled to find that the employer should have called off the delivery in this instance, given the combination of a mobile phone order from a new customer and an unanswered call back, which constituted a recognised risk of robbery.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.