English v Rogers

NEW SOUTH WALES COURT OF APPEAL

CITATION: ENGLISH v ROGERS & Anor [2005] NSWCA 327

FILE NUMBER(S):
40664/04

HEARING DATE(S): 15 and 16 June 2005

JUDGMENT DATE: 21/09/2005

PARTIES:
Peter ENGLISH
Wayne William ROGERS
Bittini Pty Ltd t/as Carousel Inn Hotel

JUDGMENT OF: Mason P Santow JA Brownie AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 12450/01

LOWER COURT JUDICIAL OFFICER: Geraghty DCJ

COUNSEL:
Appellant: P Deakin QC/ J Turnbull
1st Respondent: P Neil SC/ G McHugh
2nd Respondent: P Garling SC/ S Kettle

SOLICITORS:
Appellant: Lander & Rogers
1st Respondent: Stacks - Goudkamp
2nd Respondent: Wotten & Kearney

CATCHWORDS:
NEGLIGENCE - employer's duty of care - non-delegable duty - contractor - late-night cleaner at a hotel - armed robbery - hostage at gun-point - adequacy of security measures - psychiatric injury - consequent physical injury - special vulnerability - absence of instructions - voluntary human intervention - coordinating role of the Hotel - causal relation of motor accidents to psychological injury - interest on non-economic loss - general damages at common law - s151M, s151Z Workers Compensation Act 1987 - apportionment of damages as between employer and Hotel. (D)

LEGISLATION CITED:
Law Reform (Miscellaneous Provisions) Act 1946
Workers Compensation Act 1987
Policy Holder's Loss Control Report
Zurich Loss Control Bulletin

DECISION:
1. As between appellant and 1st respondent - appeal dismissed
2. As between appellant and 2nd respondent - appeal allowed
3. The cross appeal is allowed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40664/2004
DC 12450/2001
MASON P
SANTOW JA
BROWNIE AJA
Wednesday 21 September 2005

Peter ENGLISH v Wayne William ROGERS & Anor

BACKGROUND

The plaintiff/first respondent and his wife were employed to clean the Carousel Inn Hotel (the second respondent) by the appellant, who was contracted by the Hotel. The plaintiff suffered psychological trauma after being held hostage by a masked gunman at the Hotel in the early morning of 17 March 2000. The plaintiff had taken a load of rubbish out to the skip in a rear yard behind the hotel where the offender had been waiting with a handgun. The plaintiff was led inside at gunpoint and held captive along with his wife for several hours. The plaintiff’s psychological injuries were found to have contributed to two car accidents, which resulted in physical injuries and loss of paid employment.
The trial judge concluded that the plaintiff and his wife were working in a dangerous and vulnerable location that required special attention by the employer. He held that the plaintiff’s injuries were the result of the appellant’s breach of its duty to take reasonable measures for its employees’ safety.
In the Court of Appeal, the appellant did not dispute that he owed the plaintiff a duty of care, but challenged the findings that the duty was breached as well as certain components of the damages award. The appellant also sought contribution from the Hotel, on the basis that it owed the plaintiff a duty of care that was breached. In a cross-appeal, the plaintiff also contended that the Hotel owed him a duty of care that was breached.
HELD:
Per Mason P (Santow JA and Brownie AJA agreeing):
Negligence of the employer
The employer will be liable for breach of its non-delegable duty of care if the safety measures allowed to remain at the Hotel were unreasonably unsafe and this was causative of the robbery.
The plaintiff was clearly vulnerable to a degree that distinguished him from the daytime employees of the hotel. In view of the real risk to the plaintiff in the performance of his workplace task, the employer was required to take reasonable care by devising a safer method of operation of the task (applying Czatyrko v Edith Cowan University [2005] HCA 14).
The failure to ensure that there was no drums in the lane adjacent to the rear yard, nor the height and structure of the fence were not sufficient in themselves to ground a finding of negligence. However, simple measures were available that would have lessened the risk that eventuated and would not have impeded the plaintiff’s tasks. The issue about the absence of a direction from the appellant about going into the rear yard was clearly opened at trial and it was thereby open for the trial judge to find breach on this ground.
Applying Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN(NSW) 1070, although the plaintiff’s injury was occasioned by human intervention, this was the outcome of the precise risk that it was the employee’s duty to safeguard against. Thereby, the trial judge’s finding that the negligence of the employer was causative of the plaintiff’s injury was affirmed.
Negligence of the Hotel
By virtue of the coordinating role that the Hotel played in relation to the situation that created the relevant risk, the nature and location of the plaintiff’s work and the employer-like role adopted by the Hotel, the Hotel owed a duty of care towards the plaintiff. The Hotel knew or ought to have known that the plaintiff was in a specially vulnerable situation. The scope of the Hotel’s duty of care is sufficient to permit the facts that established breach of duty as against the employer to also establish breach against the Hotel.
Quantum and apportionment of damages
The trial judge was correct in concluding that the motor accidents were causally related to the tort-induced psychological injuries of the plaintiff. The interest on non-economic loss awarded against the appellant by the trial judge should stand, as there was no evidence of a relevant settlement offer by the appellant, as required by s151M Workers Compensation Act 1987.
General damages as against the Hotel are to be assessed at common law, uncapped by the Workers Compensation Act. An award of $100 000 general damages at common law is the appropriate quantum of damages against the Hotel.
The Hotel was in a better position to assess and respond to safety at the premises, however the employer has ultimate authority to direct the plaintiff as to how he should go about his tasks. The appropriate apportionment of the damages is 60% on the employer and 40% on the Hotel.
ORDERS:
1.            As between the appellant and the first respondent, the appeal is dismissed.
2.            As between the appellant and the second respondent, the appeal is allowed.
3.            The cross appeal is allowed.
4.            The appellant and second respondent to pay the first respondent’s costs in the Court of Appeal, in equal shares.
5.            The second respondent to pay 75% of the appellant’s costs in the Court of Appeal.

- -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40664/2004
DC 12450/2001
MASON P
SANTOW JA
BROWNIE AJA
Wednesday 21 September 2005

Peter ENGLISH v Wayne William ROGERS & Anor

JUDGMENT

MASON P: An appeal and a partly defensive cross-appeal were heard concurrently.
The first respondent, Mr Rogers (hereafter, the plaintiff) suffered quite severe psychological trauma in consequence of events at his workplace in the early hours of 17 March 2000. The plaintiff and his wife were cleaning the Carousel Inn Hotel at Rooty Hill when they were bailed up by a masked gunman. They were confined for several hours, at times tied up, while the gunman awaited the arrival of the hotel manager. When the manager came on the scene he was forced to open a safe containing about $7,000. The gunman then escaped.
The event caused the plaintiff psychiatric injury, either post-traumatic stress disorder or major depression. That psychiatric injury was found by the trial judge to have contributed to two car accidents in which the plaintiff (as driver) suffered physical injury resulting in significant loss of paid employment.
Damages totalling $277,054 were awarded against the second defendant, the present appellant, who was the plaintiff’s employer. The plaintiff’s claim against the first defendant, Bittini Pty Ltd, the second respondent in this Court, was dismissed. That defendant was the owner and operator of the hotel and will hereafter be referred to as “the Hotel”. The employer’s cross-claim against the Hotel for indemnity or contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 was dismissed in consequence of the findings in favour of the Hotel.
The employer has never disputed that he owed the plaintiff a duty of care, but he challenges the findings of negligence and certain components of the damages award. The employer also challenges the dismissal of the plaintiff’s claim against the Hotel, contending that the Hotel owed the plaintiff a duty of care that was breached in the circumstances. On this basis, the employer seeks contribution from the Hotel in relation to such damages as are awarded to the plaintiff.
The plaintiff in his cross-appeal contends that the Hotel owed him a duty of care that was breached. In this regard the plaintiff made common cause with the employer in this Court.
Damages were assessed against the employer in accordance with the Workers Compensation Act 1987. If it turns out that the Hotel is liable to the plaintiff, then its damages would have to be assessed on a less restrictive basis, with consequential adjustment of contribution rights (cf Workers Compensation Act, s151Z).
The hold-up at the Hotel
The plaintiff and his wife used to arrive at the hotel a little before 3am, after normal closing hours for the hotel. Cleaning work took between three and four hours each night. There was a main bar known as “Rooty’s Bar”, a pool room, a casino area, a kitchen and other bars.
One of the tasks was to empty all rubbish bins and take the rubbish to a designated collection point in a poorly lit car park at the rear. The plaintiff made one or two such trips each night either to place the rubbish bags in a skip or to hose beer mats (Black 13, 81). The car park gave access to a rear laneway through a locked gate. It was open to the elements, but surrounded by a security fence that will be described later in these reasons. It was necessary to turn off the building’s alarm system because the plaintiff had to exit the premises into the rear yard during the night (Blue 27). The plaintiff would open the back door of the hotel to get into the yard. The door locked automatically on closing and the plaintiff needed a key to return.
At about 4am the plaintiff took a load of rubbish out to the skip and, when opening the back door to re-enter, found himself face to face with a man wearing a balaclava pointing a handgun at his head. The offender had waited outside in the yard (Black 137).
It would have been possible for the assailant to hide in the rear yard and await the arrival of the plaintiff when he made his one or two forays into the yard to dump rubbish or hose the beer mats. The yard was lit only at its far end (Black 19-20) and, as might be expected, it contained places for concealment. The manager’s car was parked there and there were a couple of Otto bins or skips as well as some machinery (Black 14, 15). The skips were adjacent to the fence line inside the yard (Black 15, Blue 14).
The offender also bailed up the plaintiff’s wife. He then questioned the plaintiff about the operation of the closed-circuit television (CCTV) cameras, and the movements of security patrols and delivery vehicles during the night. The offender appeared to realise that the cleaners did not have access to the hotel safe because he told the plaintiff that he was waiting for the manager to arrive. At one stage he told the plaintiff that he wanted to rob the hotel because he had a grudge against it for something its bouncers had once done to him (Black 22, 96). This sentiment did not keep him from robbing the plaintiff of the $600 in his wallet.
The gunman was alone, but at one stage he spoke to an associate by mobile phone in terms that suggested to the plaintiff that “there was somebody else involved” (Black 28).
In the ordinary course, the cleaners would have left long before 8am, the time when the manager, Mr Wallace, was expected to arrive. Accordingly, the plaintiff (accompanied by his wife) was made to move his car away from the front of the hotel to a point where it would not be visible or excite suspicion. In his account of this particular event the plaintiff made passing reference to “another person in the grounds, which would be the glass cleaner and outside yard area cleaner” (Black 29). No submissions were directed to this evidence.
The offender insisted that the plaintiff and his wife continue their cleaning routine so as not to alert anyone. There was internal CCTV, but the offender stayed out of view. Throughout the night he kept his face covered by the balaclava.
At one stage, in the early hours of the morning, a driver made his usual drop-off of pies and pasties, which the plaintiff accepted, signing a receipt. The plaintiff’s attempt to pass a note about the robbery was unsuccessful.
The manager lived with his family on site in an upstairs area (Black 32). When he arrived inside the hotel at about 8.00am he was also bailed up by the gunman. He was forced to open the safe in his office and hand over approximately $7,000 in cash.
The plaintiff, his wife and the manager were then bound and gagged before the gunman left the scene. The plaintiff was the first to release himself. At that stage the gunman returned and threatened the group before disappearing. The police were called to the scene of the crime, but no police evidence was led at the trial.
After seven days the plaintiff ceased working at the hotel. He consulted his general practitioner and was subsequently referred to a psychologist, Mr Mangioni. He commenced treatment for the psychological trauma sustained in the assault, a condition later diagnosed as a serious post-traumatic stress disorder. That diagnosis is not in dispute. The plaintiff continues to be treated by a clinical psychologist, Mr Borenstein. Lexotan and Cipramil were prescribed for the anxiety and distress.
On 27 July 2000 the plaintiff drove his motor vehicle into a rock face, fracturing his left wrist. On 1 November 2001 he drove into a tree, sustaining serious orthopaedic injuries. On each occasion he had been anxious because he was attending interviews seeking work as a cleaner, a job he felt nervous about performing in light of the incident at the hotel. On each occasion he had taken more than his prescribed dose of tablets; and he had also consumed enough alcohol to commit mid-range PCA offences (to which he later pleaded guilty). He otherwise drank “very very seldomly” (Black 53).
The trial judge was not persuaded that these events were attempts at suicide. His conclusion that each accident and its sequelae were consequences of the psychiatric condition stemming from the hold-up is the only matter touching damages in issue in the employer’s appeal apart from a minor squabble about interest that is referred to below.
Cleaning arrangements and the plaintiff’s employment status
Cleaning was done by Hotel employees before 1999. On 11 August 1999 the Hotel contracted with Jani-King NSW Pty Ltd for cleaning to be performed every day (Blue 11). Jani-King is a commercial cleaning service that provides labour, supervision, cleaning materials and equipment. The Jani-King proposal offered to work closely with Hotel management in relation to supervision and security procedures (Blue 4). Jani-King operated as a franchise. It contracted out the work for Carousel Inn to the appellant who employed the plaintiff and his wife to do the contracted cleaning work.
The nominated cleaning schedule provided for all rubbish bins to be emptied and the rubbish removed to a collection point. Nothing in the contractual documents indicated where it would be, but the practice adopted by the plaintiff in consultation with hotel management was for the rubbish to be placed in a skip within the enclosed yard. Other cleaning work required the cleaners to be outside the hotel at times, including the requirements to “hose outside of hotel and footpath as required” (Blue 6R) and “clean all downstairs windows, inside and outside” (Blue 7W).
The plaintiff and his wife were under the general oversight of the hotel manager, subject to the contractual arrangements between the Hotel and Jani-King. For example, if part of the premises were not yet closed up when the cleaners arrived on site, they might be directed to vary the standard order of cleaning (Black 9). They would speak with the managers on shift if they had a query about something (Black 11). From time to time the employer would visit the hotel with Jani-King people and discuss performance of the cleaning contract with Hotel managers (Black 41, 68).
Security at the Hotel
The hotel was taking $18,000-$20,000 per week from the bar and $70,000-$80,000 per week from poker machines (Black 266). It was not in dispute that such large sums of money would have attracted the attention of criminals. The Hotel was acutely aware of this and had taken steps to discourage theft and robbery. Mr Stanford, the gaming manager and the person responsible for providing security at the hotel, agreed in cross-examination that he realised that some of the hotel staff were vulnerable because of the large amount of cash held on the premises (Black 281).
There had been an armed hold-up in 1997 in the presence of Mr Wallace, then the Assistant Manager. (When Mr Wallace was confronted with the assailant on 17 March 2000 he exclaimed “Oh no, not again”.)
In July 1997 the Hotel’s insurer, Zurich Australia, conducted an assessment and provided a Policy Holder’s Loss Control Report. The Report is a one page document that does little more than record the fact that discussions had taken place with a view to establishing potential hazards and loss exposures (Blue 51). Attached to it was a Zurich Loss Control Bulletin that the insurer recommended be sent to the manager/licensee with a request to consider each of the issues raised and, where not already in place, adopt appropriate loss control measures.
The Bulletin was a standard form document containing detailed recommendations about fire prevention, self-inspection, emergency lighting, fire training and evacuation procedures, burglary and hold-up. The material dealing with hold-up and theft was as follows (with emphasis of the portions upon which the plaintiff placed particular emphasis):
HOLD UP
Several locations have experienced armed hold ups and this is an ever-present threat wherever large amounts of cash are handled. At hotels, bottle shops are especially vulnerable, and resident managers after hours, and staff taking cash to bank are also at risk. Apart from the risk of hold up, staff in bottle shops may be injured by thieves attempting to steal stock if they try to apprehend them.
There are a number of precautions that can be taken to protect staff and property, and some of these are in place at some locations. When considering security measures however, the following precepts should be observed.
•Everyone at a robbery crime scene is at risk, and protecting staff and members of the public from physical harm must be the paramount consideration. Measures to protect cash must be avoided if they increase risk to persons.
•In any facility where armed robbery is possible, for safety reasons, all staff, not just cashiers, must receive adequate hold up instructions and/or training. Would-be heroes can get others hurt, as well as themselves, and the instruction “no resistance” must be thoroughly understood, and accepted, by all staff.
•Equally important in staff training is promoting a vigilant attitude, with employees encouraged to report persons acting suspiciously. There must also be clear instructions to never discuss cash and security arrangements with others.
•The principle of “no resistance” also applies to staff discovering a theft in progress. Unarmed thieves, as well as armed robbers, are quite likely to injure anyone trying to prevent their escape.
•Minimising the amounts of cash accessible and the likely proceeds of a robbery will help deter professional criminals, but not necessarily amateurs, eg those with drug problems.
•Keeping cash and counting operations out of sight of public is essential so as not to attract the attention of would-be criminals.
•It must be assumed that criminals can obtain any information about security measures that they need to commit a burglary or robbery, either through observation, deception or intimidation of staff.
•Physical and electronic security measures should therefore be of a high standard and obvious. If it is difficult to get into the main cash holding area, and if proceeds are likely to be limited, and if there is certainty of being detected and/or recorded on camera, then the more likely it is that criminals will go elsewhere.
•Preventing thefts of opportunity (as opposed to actual hold ups), requires that cash is never left unattended, on desks, or in unlocked registers or drawers.
(Note: Thieves can have others create a diversion so they can get at tills etc…)
•Criminals always have the initiative in committing robberies and Managers need to regularly review security arrangements and training to identify and close any gaps.
•The principle of protecting cash against burglary is to have an effective detection and alarm raising system, and also provide a delay by keeping cash within a safe in the alarmed area.
If not already in place, we suggest the following measures are considered, and adopted where practical (the suggestions are in the form of a checklist you can use to review your own security).
HOLD UP AND THEFT CHECKLIST.
Are all managers and staff who handle cash, including bar and sales staff, given clear instructions to co-operate and offer no resistance in a hold-up?
Does induction program for new staff include “bandit training/instructions”?
Are staff instructed not to try and apprehend thieves (as distinct from armed robbers)?
Are CCTV cameras installed to cover bottle shops, gaming area cashiers etc?
Do cameras record continually/periodically (or can they be upgraded)?
(Note: it is preferable that cameras are recording automatically so staff do not have to take any action that puts them at risk in event of a robbery. Cameras are also useful in recording potential public liability claim incidents in public areas.)
If not on continuously, can camera recording be activated by “suspicion buttons”?
Are camera recording devices in an area remote from cameras?
Are full height screens or grills installed around cashiers to stop counter jumpers?
Are there silent hold up alarm buttons in cashier’s booth, bottle shop, and office?
If so, are hold up alarm buttons concealed from public view?
Do hold up buttons initiate a (silent) alarm at a security contractor’s base (or in a continually staffed office which is not visible from public area?)
Is there a procedure to clear drawers of excess cash to main safe at regular intervals?
If so, can clearing of excess cash be done without being viewed by public?
If not, can a “drop chute” safe or security box be fitted under counters?
Is main safe (if in an occupied area) unlocked during working hours?
If locked, are staff on duty able to open safe easily under duress?
Note: To deter robbers, time delay clocks on safes or drop chute safes are useful, but it is vital for the safety of staff that they can comply quickly with robbers’ demands to open key/combination safes.
If not already installed, can a 10 minute delay timer clock be fitted on safe?
If time delay clock safe is fitted, are clear signs posted advertising this?
Are there strict procedures in place to prevent any unknown persons entering cashiers’ area eg by deception?
Have clear instructions been given to never leave cash drawers unlocked and unattended?
Is an audible alarm installed on cash drawers in case they are opened or forced?
Is cash ever counted in view of public?
Is all cash, including any note floats, kept in safe after hours?
Is safe in an area covered by an effective monitored intruder alarm?
Is cash carried around the hotel during business hours by staff through areas accessible to the public?
If so can person, times, bags etc be varied, or can it be done outside business hours?
Are employees required to take cash to bank?
If so, is this done by appropriate able bodied persons?
Is it economically viable to have cash collected by professional cash carriers instead?
Have clear instructions been given to staff doing banking (eg “no resistance”, and to vary times, cars, routes, containers, persons etc…)?
Have you considered giving staff “bandit training”? (AHA course?)
Is manager’s residence provided with a silent hold up alarm?
Is it a clear policy that (resident) manager calls police to investigate any intruder alarm at night, rather than investigating alone (robbers may set off alarm to bring manager down to where they can hold him up)?
Is it necessary for manager to go outside building after closing up at night, eg to get to residence?
If so, is area well lit (is there anywhere robbers can conceal themselves)?

Responding to this information, the Hotel made a number of changes to its security system. Most (according to the plaintiff, all) were directed at protecting the Hotel’s property and its employees while inside the hotel premises. The security system that was installed and/or upgraded in 1998 is described below.
On 15 July 1998 Mr Stanford sent a memorandum to managers and assistant managers which included the following (emphasis in original):
As most of you will be aware, there has been an increase in the number of armed hold-ups on hotels and clubs in the last 9 months. As a result of these hold-ups we have made considerable changes to our security in general and our cash handling in particular.
One of the major concerns we have is the lack of ability to actually detect these occurrences without putting staff under pressure to activate hidden alarms. As a result of these concerns we have installed a system which will enable all premises to be watched from a central location.
We are making no effort to hide the fact that our premises are under surveillance, and signs should be on display. All staff must be aware that they may be under surveillance at any time. Although the primary purpose of the cameras is to detect hold-ups, they may be used to detect fraudulent behaviour by staff.
This operation in no way reduces the importance of any other security measures currently in place. Please ensure all measures are undertaken at all times.
I have indicated that the Hotel “outsourced” cleaning work in 1999. Thereafter the Hotel left it to the cleaning firm to concern itself about the safety of cleaners. As it turned out, the plaintiff received no instruction about security issues from either his employer or the Hotel.
The breaches found against the employer
Judge Geraghty concluded that the plaintiff and his wife were working in a dangerous, vulnerable location, and that this situation needed special attention by the employer that was not forthcoming. His Honour found that the plaintiff’s injuries were the result of the employer’s breach of his duty of care. This, in effect, was a conclusion that the assailant had been able to attack the plaintiff because the employer had failed to take measures that ought to have been taken, being measures that would probably have avoided the attack (cf Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070 at 1086).
The parties had relied upon the reports of security experts. Each expert was cross-examined. The primary judge remarked that the plaintiff’s expert, Mr Jennings, expressed opinions that were “more in the style of admonitions of excellence and perfection, and … to some extent unrealistic. He seemed to recommend, naturally enough in the light of his business, a continuing upgrade to the latest and the best of security systems”.
The judge set out portions of each report, observing that the defendant’s expert, Mr Gale, had not been to the premises by the time he first reported. It would appear that His Honour derived little or no assistance from the two reports on the vital issues of breach and causation. I imply no criticism in this observation.
The judge stated that he found his view of the premises to be of great assistance, particularly in the light of the evidence which Mr Stanford gave as to the security system that was in place. His Honour described the hotel as (Red 41).
… protected by locks on all exterior doors; by lighting inside and out; by four cameras, some of which were programmed on a back-to-base system; a baffling, confusing and puzzling spread of signs, some alerting to security measures; an alarm system; a movement-sensitive system; and relevantly, fences which I concluded, from a view, were not impenetrable, but could be overcome only with difficulty.
There were several security cameras inside the establishment, but no video cameras in the rear car park until after the hold-up in question.
The findings as to breach (at Red 54-6) commence with some general observations that are critical of the employer, but not ultimately dispositive. I include the statement that the employer should have enquired as to any history of violent crimes on the premises and as to the security system at the hotel. These observations were not significant because they were expressed as generalities and because the particular failures were not found to be causative of the plaintiff’s injury.
The evidence is unclear as to whether the employer ever conducted an independent investigation as to the security system in the hotel. Equally unclear were the unrealistic submissions on this topic from both sides.
The plaintiff’s submission concentrated on the mere failure to conduct an independent investigation, something of no causative impact unless the system that was left in place by the employer was itself unreasonably unsafe.
The employer at one stage suggested that it bore no responsibility to the plaintiff for the system of security, a proposition that was (I think) withdrawn under a barrage of judicial questioning. The submission was reformulated to the effect that the employer would not have been acting unreasonably in the particular circumstances in failing to press for modifications of the security system that the Hotel had put into place in its own interests.
The employer invoked the frequently-cited statement of Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319:
For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.
Citing this passage, the employer submitted that it was not within his power to insist on changes to the physical layout of the hotel premises or the security arrangements that were in place there. I am certainly prepared to accept that the employer was entitled to take these matters into account. But to go further is to argue that the employer’s non-delegable duty can be sloughed off by sending the employee to a remote location under another’s control. This is not the law.
The employer’s duty of care included the need to take reasonable measures for his employee’s safety, including measures designed to avoid the risk of the plaintiff being robbed (see Czatyrko v Edith Cowan University [2005] HCA 14, 214 ALR 349, 79 ALJR 839 at [12] (set out below); Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 265[26], 280[75], 292[110], 300[142]; Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafina [2001] NSWCA 243, (2002) Aust Torts Rep ¶81-636 at [64]).
There is no evidence that the employer took any measures of his own, or even that he gave any instruction to the plaintiff on the topic of safety from intruders. At best, the employer assumed that the Hotel’s safety measures would be adequate for his employee. In these circumstances, the reasonableness of the employer’s measures is to be judged by the reasonableness of those adopted by the Hotel as regards the plaintiff. This is not because of some principle of vicarious liability, but simply recognition that the employer cannot in the particular circumstances shield behind the Hotel with respect to the discharge of his non-delegable duty of care. The employer will be liable if the safety measures allowed to remain were unreasonably unsafe and this was causative of the robbery that caused the plaintiff’s injury.
The critical passage as to the employer’s liability in the reasons of the primary judge was:
Then the question arises: what could, or should, English have reasonably done to ensure the safe system of work for Rogers?
The Hotel already had locked doors, lighting fore and aft, alarm systems with code pads, four surveillance cameras, heat-activated alarm systems. There was a fence at the rear in corrugated iron, with three barbed wire strands at the top, and a door from the rear of the hotel which was key locked on the outside.
Security is like love; like ice-cream; like peace; like praise – one can never get enough of it.
The employer may have been able to insist on really preventative measures to stop armed hold-ups. For example – closing down the business would have been effective; or constructing a moat and a drawbridge for entry into the premises. He may have employed a team of armed guards on constant watch; or use a mob of trained savage guard dogs at the perimeters of the premises; or a loud-speaker system constantly broadcasting warnings. These suggestions are, of course, exaggerated, ridiculous measures, offensive to commonsense.
But what is always called for is reason, a balance, a judgment – and there are many factors to balance. Was what was done reasonable? Or, was it reasonable that other measures should have been implemented? In the end, security is a matter of judgment, a question of balance, of reasonable assessment of risk prevention to determine, to respond, to react, to protect.
I did not hear evidence from English, so I do not know what he did or did not do. I do not know, for example, whether he made any assessment, on a continuing basis, of the workplace security system, but I do know that he may have been able to recommend, for example, an electrification of the rear fence. He may have been able to advise added rear lighting, and to enter into a discussion with hotel management. He may have recommended a perimeter alarm system, and gauged what response came from management for such a suggestion. He should have at least ensured there were no drums in the lane on the outside and on which intruders could climb, and no containers or skips to step over onto, on the inside. It seemed to me perfectly possible for someone to step up on a drum on the outside, to get over the barbed wire onto an elevated skip bin on the inside. He could have examined the safety system, assessed it, and discussed it with management since he had an obligation to provide a safe, secure system of work for his employee.
It was suggested at some stage that a personal panic alarm system could have been provided for Rogers. Maybe that would have created more dangers for a victim than solving his problems. It was recommended that a periodic guard patrol should have been employed and that this would not have been excessively expensive. Again, this would only have been a deterrent perhaps, and may have caused more dangers. As it turned out, Rogers responded in exactly the right way, according to the expert evidence, by being very passive and cooperative.
However, it seems to me the employer could have directed his employee not to exit into the rear yard at night under any circumstances, and particularly under the circumstances where the rear yard was able to be penetrated at one corner. He could have insisted that the rear fencing should have been constructed without the gap without the possibility of access, though difficult, at one far corner. Those matters could have been easily attended to, and in my estimation should have been.
Since, for example, English gave no direction to Rogers about exiting into the rear yard, did not insist on secure fencing, or on the removal of drums on the outside of the fence, and showed (as far as I can see, though I have not heard from him) no concern for the security of his employee, and delivered this responsibility into the hands of the hotel, although a non-delegable duty, it seems that English breached his duty of care.
The particular breaches found in the concluding paragraph of this passage were:
(i)failure to direct the plaintiff not to exit into the rear yard at night under any circumstances;
(ii)failure to insist on more secure rear fencing; and
(iii)failure to ensure that there were no drums in the lane onto which intruders could climb.
It is convenient to address these findings in reverse order.
Much earlier in his reasons the trial judge had speculated about the means whereby the offender had got inside the yard. His Honour thought it probable that the robber had climbed over the fence, using one of a number of empty 44-gallon drums which were stored outside the fence perimeter.
There was, however, insufficient evidence to support this particular hypothesis, although it was established on the probabilities that the intruder had somehow or other got into the rear yard.
The idea about the drums seems to have come from the report of Mr Jennings who stated:
Subsequent investigations showed that the offender had entered the courtyard by using one of a number of empty 44 gallon drums which were stored outside, but close to, the fence line, to climb over said fence.
Mr Jennings had earlier indicated that he had accepted the data supplied by the plaintiff’s solicitor and that he had not interviewed any witnesses other than a brief telephone discussion with the plaintiff to clarify aspects of the matter. No witness gave evidence referable to the drums except for the plaintiff, who said that he observed quite a number of 44-gallon drums on the other side of the laneway away from the hotel fence. He did not know what was in them (Black 14). This evidence did not establish the proposition stated in the previous paragraph.
In July 2002 Mr Jennings took photographs of the rear laneway showing then empty 44-gallon drums standing on the footpath on the opposite side of the laneway to the gates (Blue 36). Each drum was 86mm in height (Black 253).
The employer’s expert, Mr Gale, provided a report that contained photographs taken in about June 2004. They showed a couple of 44-gallon drums apparently resting on a stand opposite the gate to the yard on the far side of the laneway (Blue 157).
The evidence disclosed that these drums were used by the Hotel to store broken up bottles while awaiting removal. There is no evidence as to whether the drums were full or empty on the night in question. If they were full, then they would have been very heavy. But whether full or empty, there was no evidence that they were found adjacent to the wall on the night of the robbery. It follows that, if they were used by the offender, he must have had an associate who rolled the drums back to their usual position after entry was gained. This is unlikely. Such a hypothetical associate could as well as brought a ladder or driven a car on which the offender could have stood to climb onto the fence.
In my view, this particular method of entry was not established on the probabilities. For what it is worth, I strongly doubt that this method of rubbish removal betokened negligence in any event.
I next address the finding as to the adequacy of the rear fencing.
The trial judge conducted a view on 30 June 2004. He made a detailed record (Black 152-155). His observations about the yard were as follows:
Together we visited the yard out the back. It is enclosed with two wire meshed gates. There are four strands of barbed wire above the wire mesh gates and three strands of barbed wire above the corrugated fence that runs along the eastern side to separate this work area from the private lane. It seemed the corrugated fence was about 6 foot tall, maybe a few inches less, and above that then was three strands of barbed wire.
There was, it seemed to me, about 10 inches or a foot between the top of the fence and lower strand of the barbed wire. Most of the wire was very old and rusty, though part of it had been renewed.
There were 44 gallon drums, both in the work area at the back and in the lane, though the ones in the lane were very rusty. There were signs on the north brick wall that surrounded the work area. There was also a camera on the wall, and above that camera was flood lighting. The signs on that north wall and on the eastern wall running along the lane advised that the yard was surveyed by video camera.
There was a vacant area on the other side of the laneway which was in very bad repair, a very scrappy area from which an observer would be able to observe the door leading into the passageway that goes straight into the premises.
It seemed to me that in the south east corner somebody would be able to scale the fence where the corrugated iron fence met a colour bond fence, which was about 7 feet high.
Just inside the property on the other side of the fence there was a small window. Today it was opened and I have seen photographs with the window open also, but in any event, whether opened or closed, it seems to me that someone would be able to scale the colour bond fence, and step over the barbed wire on to the window ledge, or even on to the wooden beam that forms a framework for the fence. It would not be impossible to gain entrance in that area, it seemed to me.
I also noted that anyone who wished to gain entrance would be able to place his foot on top of the corrugated fence where the gates appear, straddle the fence, and either put his foot on the wooden beam which is about 4 inches from the tope of the corrugated iron fence, or down on to a skip bin inside the property where I saw today one large skip bin, and I understand there is room there for a second one, and I note in fact the plaintiff has drawn in two skip bins in exhibit C.
The working area was extremely cluttered. There were numerous kegs, there were 44 gallon drums – many of those. There was an old fridge, numerous milk crates, a television disc, building equipment, and stacked bricks, as well as access to the cellar. I noted strip lighting, there were two lots of strip lighting over against the wall on the western side, and fluorescent lighting below the awning. There was a number of large air-conditioning units, all working.
In the corner there was a washing room just to the left as one entered the doorway to go into the premises. The door was not locked today, the lock was rusty, and did not appear as if it had been used. There were no handles on the door. It seemed to me that it would be a place where someone would be able to secret himself.
We entered together. The corridor that runs from the back work area is into the main bar which is to the left of the room marked 2 on exhibit C. There was now a camera focused into the manager’s office area. There is no access to that corridor except from behind the bar, if one entered the premises through the main doors, so that access to that corridor is restricted, it would seem, to employees and managers rather than to clients, and it would be very obvious if somebody came in behind the bar and walked down into that area.
As indicated, the judge ultimately concluded on the basis of the view that the fences “were not impenetrable, but could be overcome only with difficulty”. Earlier in his reasons for judgment his Honour referred to his observations of the fence, stating (Red 37-8):
I observe also that, at one corner of the yard as it joined the building, there was an area which would allow someone, with some difficulty, to climb up against the fence, step over the barbed wire onto a window sill, and jump down into the interior of the rearyard.
The employer was critical of these findings, at least in so far as they suggested negligence in not having a more impenetrable fence. It was pointed out that the height of the top of the corrugated iron fence was 1.4m above the ground and that the top strand of barbed wire was 2.44m above the ground (Black 253).
I am unpersuaded that the judge erred in his assessment of the fence and his conclusion that a determined intruder could get over it (especially at one corner), with or without the assistance of an associate. His Honour was in a markedly superior position to this Court, not that we should shrink from our duty of appellate review if persuaded of error.
Whether there was negligence in not having a more impenetrable fence is more debatable. This was, after all, a working part of a hotel, not a prison complex or a national art gallery.

At the end of the day, it is not feasible to isolate the fence issue. Rather, it should be seen as the backdrop to the critical question that I identify in the next paragraph. This is because an even higher fence would have proved no barrier to a determined and resourceful criminal, especially one who had a particular grudge against the Hotel, as the plaintiff’s assailant apparently did (Black 22, 96). I shall therefore proceed on the basis that the fence was capable of being scaled, albeit “with difficulty”, but that the height and structure of the fence were not sufficient in themselves to ground a finding of negligence.
Assuming absence of negligence in not making the yard more impenetrable, the fact remained that a determined assailant could get into it and hide. To my mind, the critical issue relates to the reasonableness of the lack of measures to protect the plaintiff in these circumstances, when he moved into this poorly lit yard as one of his appointed tasks, without any instruction from his employer or the Hotel about the need for special precautions.
The hotel was in an isolated part of the suburb. The takings were an attraction to robbers, as the Hotel acknowledged through its security measures. The plaintiff’s vulnerability was recognised by each of the security experts (Blue 26, Black 315).
The yard was poorly lit (Black 19-20) and relatively cluttered. It offered easy refuge for a hiding intruder who had somehow or other scaled the perimeter fence. Such an intruder would have been able to observe the cleaning processes through the gate (which was not solid) and learnt that the cleaner came into the yard once or twice every night.
Neither the employer nor the Hotel pressed the submission that there was no foreseeable risk of robbery, even with the upgraded security measures installed after 1998. To have maintained this position would have been hopeless, in my opinion.
The employer’s primary submission was that security was the Hotel’s responsibility. It was argued that the employer was entitled to assume that the Hotel had a reasonably safe system in operation. The Hotel alone was aware of the earlier incidents involving the hold-up in the bottle shop in 1997 and a further episode involving an intruder who fell through the roofing tiles.
Unlike the situation in Chomentowski, the employer would not have foreseen any likelihood of a cleaner being held up on the basis of having access to cash at the premises. The possibility that the cleaner would be held hostage in the manner that occurred was fairly remote, a proposition that drew support from Mr Gale’s evidence. He acknowledged the known risk that criminals intent on entering a business might secrete themselves overnight, adding that the taking of a hostage for a long period of time was not something he had come across or something that he would have “considered probable in terms of advising security” (Black 315). This evidence raised in my mind some questioning of the trial judge’s conclusion as to negligence, but at the end of the day I am not persuaded to overturn it.
The Zurich Loss Control Bulletin pointed to the risk to staff required to go outside the building at night. As regards “resident managers after hours”, it asked:
Is it necessary for manager to go outside building after closing up at night, eg to get to residence?
If so, is area well lit (is there anywhere robbers can conceal themselves)?
Neither the Hotel nor the employer seems to have realised that a cleaner could also be at risk at the hands of a robber intent on gaining entry. I acknowledge that a cleaner is a less likely target than a manager. After all, an intruder would not reasonably anticipate that a cleaner would have access to a safe. This said, I am unpersuaded that the trial judge erred in concluding on the facts that there was negligence in permitting the cleaner to go unaccompanied into a cluttered, poorly lit yard that offered encouragement to an intruder intent upon gaining entry to the hotel premises.
In Czatyrko, the High Court recently observed, at [12] (citations omitted):
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.
See also Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at 439[34]; Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222.
In Kondis v State Transport Authority (1984) 154 CLR 672 Mason J said (at 687-8):
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.
Naturally, there are clear points of distinction between the plaintiff’s situation and that of the manager in Chomentowski. But the plaintiff was clearly vulnerable to a degree that distinguished him from employees of the Hotel who worked there by day.
The employer’s duty was not absolute. Since, however there was in my view a real risk of injury to the plaintiff in the performance of his workplace task, the employer was required to “take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by provision of adequate safeguards” (Czatyrko at [12]). This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue.
Simple measures were available that would have lessened the risk that came home. They would not have unduly impeded the accomplishment of the plaintiff’s cleaning tasks. The rubbish could have been left just inside the locked portion of the premises and only moved outside during daylight hours (using Hotel staff). Alternatively, the plaintiff could have been instructed to take the rubbish out in the company of the manager or perhaps even in the company of his wife. If such instruction had been coupled with better lighting and a warning to be aware of the possibility of a hidden intruder, then the duty of reasonable care may very well have been discharged.
It is no answer for the employer to say that he was unaware of the 1997 robbery at the hotel. He must have been aware that there was some security risk, at least to Hotel property. The employer certainly knew that the plaintiff would be in the rear yard during the night in the course of his duties.
The employer relied on Kozjak v Fairfax Community Newspapers Pty Ltd [2001] NSWCA 37, a case where a female employed to canvass advertising in a western suburb of Sydney was raped in an isolated area. The attack occurred during daylight hours and the employee had not previously complained to her employer that she felt at risk of actual personal attack. The case turned on its own facts.
The employer submitted that it was not open to the trial judge to find breach in respect of absence of direction about going into the rear yard because the particulars in the originating process made such an allegation against the Hotel but not against the employer. I cannot accept this submission. The issue was clearly opened up at trial in the evidence of the two experts which was treated as evidence going to the liability of each defendant. The initial focus of Mr Gale’s evidence had been upon the allegation against the Hotel. Nevertheless, the case was fought on the basis that the employer left security up to the Hotel, and the Hotel and the employer made common cause at trial on the issue of breach. The plaintiff’s solicitor provided a letter of particulars relying on the Jennings report as the basis of the claim against the employer as well as the Hotel. Written submissions at trial show that this point was taken against the employer (see par 43 thereof).
Apart from addressing the causation issues touching the two motor accidents, the judge did not deal with causation in his reasons. The employer submitted that the trial judge erred in failing to address causation, because before liability could be found, it had to be established that the measures that were unreasonably not in place would probably have prevented the robbery (see generally Duyvelshaff v Cathcart & Ritchie Pty Ltd (1973) 1 ALR 125). This complaint was not pressed as a want of reasons ground of appeal. This Court was invited to form its own view on causation, taking guidance from Kozjak and Modbury at 266[29], 269[40], 290[107] and 302[150].
In Chomentowski Mason JA said (at 1086):
The injury which the plaintiff sustained, although occasioned by deliberate human intervention, was the outcome of the very risk against which it was the duty of the defendants to safeguard the plaintiff as their employee. If, as was the case, it was the existence of that risk of injury which called for the exercise of care and the taking of precautions by the defendants, then the defendants’ failure to take care may properly be regarded as the cause of the injury which occurred when the risk became an actuality.
I agree with the conclusion of the primary judge that there was causative negligence on the employer’s part. There is no reason to think that the plaintiff would not have obeyed any directive about not going into the yard or at least not doing so unless particular precautions were taken.
Did the Hotel owe a duty of care with respect to the criminal acts of third parties?
Judge Geraghty held that the Hotel owed no duty of care to protect the plaintiff from the criminal acts of a third party. He considered and rejected arguments based upon the Hotel’s position as occupier, involving as it did actual knowledge of the risk of robberies, the exercise of control and other factors. Citing Modbury and Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659, the judge concluded that the particular facts did not support an occupier-based duty stemming from the tentative remarks of Gleeson CJ and Hayne J in Modbury at 267[30]-[34], 293[117]. The conclusion was challenged in this Court, unsuccessfully in my view. On the existing state of the authorities something more than occupation of land is required to generate a relevant duty of care (see Drakulic at 678[69]-[117]).
Judge Geraghty also considered and rejected an argument that the plaintiff was owed a duty of care by the Hotel because he stood in a relationship analogous to that of an employee.
The way this point was developed at trial was by reference to particular items of work that were said to have been over and above those contracted for as between Jani-King and the Hotel. These included instances of “high dusting” and the “friendly, convenient arrangement” about the plaintiff accepting delivery of pies and pasties when they arrived in the middle of the night. I agree with the trial judge (Red 43) that these courtesies did not in themselves create a duty of care with regard to the criminal acts of third parties.
The Hotel duty issue was developed slightly differently in this Court by the employer and the plaintiff. One basis was the argument that the Hotel exercised a coordinating role in a situation when its activities helped create the relevant risk, thereby attracting the principles in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Another, invoking TNT Australia Pty Ltd v Christie [2003] NSWCA 47, was the submission that the general relationship between the hotel and the plaintiff was analogous to that of an employee, given the nature and location of the plaintiff’s work and the role adopted by the Hotel. In my view, the Hotel owed a relevant duty of care on these two overlapping bases.
The Hotel knew or ought to have known that plaintiff was in a specially vulnerable situation (cf Modbury at 270[43], Drakulic at 682[85]). His access to and within the workplace was controlled by the Hotel, whose managers also gave him directions from time to time as to the mode of performance of his work (Black 41, 43). This included instruction about what he was to do in order to keep the Hotel premises secure from thieves (Black 142). I am not suggesting that those directions were intended to or could, in law, override the contractual arrangement between the Hotel and Jani-King. But the directions were consistent with those arrangements. The outsourcing of cleaning arrangements does not appear to have changed the role of the cleaners at the hotel. The managers explained the job to the plaintiff initially, in company with the employer (Black 41) and they used to point out areas of cleaning left undone. On one occasion the plaintiff was asked to clean windows on a daily rather than a weekly basis (Black 38). Once a month Jani-King representatives attended upon Mr Wallace to check up on performance of the cleaning work. The plaintiff was not involved, but his employer was.
The plaintiff was given no instructions or training from his employer in relation to security at the Carousel Inn. The only such instruction from the Hotel itself was a direction to make sure that all doors were locked and the alarms activated before leaving (Black 10, 103). This direction shows the degree of control exercised de facto by the Hotel generally and in the particular area of (Hotel) security.
The relationship between the Hotel and the cleaners was, in my view, so closely analogous to that of an employer, at least as regards safety in the workplace, as to generate a duty of care that was not trumped by glib citation of Modbury.
The Hotel’s breach of duty
Having found absence of duty, the primary judge did not address the question whether the Hotel was in breach. I cannot accept the submission of Mr Garling SC that there was a finding in favour of the Hotel based on implicit acceptance of Mr Gale’s testimony.
It is nevertheless clear that the breach issue was fully ventilated at trial. Furthermore, there is no reason why the facts found as to breach against the employer may not be applied with respect to the Hotel’s analogous duty of care.
The Hotel submitted that it would be liable only if perfection, not reasonableness, were the standard of care. It invoked Judge Geraghty’s delightful statement that:
Security is like love; like ice-cream; like peace; like praise – one can never get enough of it.
At one stage, the Hotel flirted with the submission that it satisfied its duty by acting upon the advice of its security experts. This however is not conclusive, particularly since neither the experts nor the Hotel appear to have been directing any attention towards the needs of the night cleaners.
The Hotel argued that any duty it owed to the plaintiff was not of a non-delegable nature and therefore not on all fours with the employer’s duty. It is unnecessary to pursue this legal debate, because nothing really turns upon it. As I pointed out in Lepore v State of New South Wales (2001) 52 NSWLR 420 at 426[29]:
The expression “non-delegable duty” is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate.
The scope of the Hotel’s duty of care is sufficient to permit the findings of breach against the employer being treated as findings against the Hotel.
The significant protective measures installed at the hotel after the arrival of poker machines were eloquent testimony to the attractiveness of the premises to the criminally-minded. Those measures could well have been a reasonable response with respect to the general employees of the Hotel, but were inadequate to provide protection for the plaintiff and his wife. Many steps were taken to protect the money on the premises and the safety of the day staff. Unfortunately, no one concerned themselves for the plaintiff who was in a specially vulnerable position.
In my opinion, the facts which established breach against the employer also established breach against the Hotel. I would therefore uphold the plaintiff’s cross-appeal and enter judgment in the plaintiff’s favour against the Hotel.
Quantum issues
Were the motor accidents causally related?
The employer challenges (in Ground 12) the finding that the injuries suffered by the plaintiff in motor vehicle accidents in July 2000 and November 2001 were causally related to the psychological trauma stemming from the robbery, with the submitted consequence that the statutory thresholds with respect to damages were not satisfied.
Judge Geraghty found that there was no persuasive evidence that the motor vehicle accidents were suicide attempts. Each was however related, in large part, to excessive consumption of alcohol. The judge had no doubt that the plaintiff was suffering a serious psychiatric/psychological condition stemming from the robbery. He also held that the plaintiff:
..had no immediately previous alcohol problems, at least since his early 20s. As a result of his psychiatric condition he was suffering tension, consuming prescribed drugs to control his symptoms and, it would seem, binge drinking.
His Honour reviewed in detail the medical evidence touching this particular causation issue. The treating specialists had speculated about the suicide hypothesis, but their evidence was not confined to it (see Mr Borenstein at Blue 562, 570, 576, Mr Colquhoun at Blue 583-4). Their evidence thus provided the judge with expert testimony that a linkage between the depressive illness and the binge drinking that led to the accidents was capable of being established.
Thus, Mr Borenstein recorded that the plaintiff attributed much of the chaos and deterioration in his circumstances at the time of the first accident to the robbery/assault and his post-traumatic stress disorder (PTSD). There was suicidal ideation, but also depression, irritability and other well-accepted symptoms of PTSD. In his latest report Mr Borenstein speculated that the plaintiff became acutely depressed on the day of the first motor vehicle accident, and acted inappropriately by consuming alcohol which in turn contributed to his depression.
Mr Colquhoun was a psychologist who treated the plaintiff on 24 January 2002. He diagnosed severe and chronic PTSD together with major depression. He observed that it seemed completely out of character for the plaintiff to have drunk the quantity of alcohol required to reach the recorded blood reading. The trial judge had made a finding to similar effect.
The plaintiff’s own evidence showed that the experts were presenting hypotheses in a realistic context. Each accident occurred on a day when the plaintiff was seeking work, finding himself forced to confront again the possibility of working as a night cleaner. He gave evidence about particular anxiety that was superimposed over his general depression (otherwise diagnosed as PTSD).
Judge Geraghty concluded that:
Some of the medical reports pre-date the first motor vehicle accident, some the second, so that there is no doubt that Rogers was suffering a serious psychiatric/psychological condition before July 2000, and again before November 2001, and that this condition had been caused by the assault in March 2000. He was receiving treatment, taking medication, so that it seems to me, as a matter of common sense, that his consumption of alcohol and the stressors he was experiencing contributed materially to the motor vehicle accident, both in July 2000 and November 2001.

The employer submitted that this conclusion was not open in light of the plaintiff’s evidence to the effect that he did not really know what had caused the accidents (Black 47, 51, 142-4). This submission lacks weight.
In my view, the trial judge was correct in his conclusions about the car accidents. The plaintiff accepted that his heavy drinking had been the immediate cause of each accident. But the evidence as to his mental condition at that time and the evidence of the experts showed that the drinking bouts were closely attributable to the tort-induced PTSD.
Interest on damages for non-economic loss against employer
Section 151M(3) of the Workers Compensation Act 1987 (as then enacted and applicable to the present case) provided that no interest was payable on damages for non-economic loss awarded against an employer. Judge Geraghty awarded interest in the sum of $4,486.56 against the employer with respect to non-economic loss. The plaintiff does not dispute that this was in error, although the sum is said to be de minimis and it is pointed out that the trial judge received no submission concerning s151M. In my view, the slip ought to be corrected.
Section 151M(4) provided that interest was only payable on past economic loss in circumstances where it is shown that the defendant had been given information enabling it to assess such a claim and where no offer had been made or the amount of damages awarded by the Court was more than 20% higher than the highest offered by the defendant. The employer submits that there was no evidence available to support the award of $2,842.30 on this account. In my opinion, the sum awarded should stand. There was no evidence indicating that the employer had made a relevant settlement offer.
Quantum of damages against Hotel
Since the plaintiff has succeeded on his cross-appeal against the Hotel it is necessary to assess the damages.
The parties are generally agreed that the trial judge’s figures should stand against both defendants if the appeal about the physical injuries stemming from the motor vehicles is rejected. The exception relates to general damages which (as against the Hotel) are to be assessed “at common law”, ie as at the date of the hearing, uncapped by the Workers Compensation Act, and capable of carrying an award of interest. When assessed, an adjustment is required in accordance with s151Z of the Workers Compensation Act in a situation (such as the present) where responsibility is shared as between the employer and a third party each of whom is found liable to the plaintiff.
The Hotel submitted that it would be necessary to refer the matter back to the trial judge to assess general damages. It resisted the suggestion that this Court could take adequate guidance from the unchallenged findings against the employer made by the primary judge in the context of the former s151G of the Workers Compensation Act 1987.
Judge Geraghty found that the plaintiff’s psychiatric condition was generally diagnosed as PTSD, although some doctors thought that it was more likely to be major depression or anxiety. In any event, the symptoms were, and remain, quite severe.
The reports of several treating or consulting psychologists or psychiatrists were in evidence, none being tested in cross-examination.
Mr Mangioni, a consultant psychologist, provided assessment and treatment in June-July 2000. He received a history of “significant psychological factors exacerbating the level of trauma” including “irrational guilt and self-blame associated with opening the back door”, fear of injury or death from having been confronted with a revolver, anger, concern and frustration stemming from the period of prolonged entrapment and worry about the plaintiff’s wife’s heart condition. At that stage the plaintiff had stopped work a week after the incident and had not returned since. His condition had plateaued and his major coping strategy was “distraction and sedating himself with the medication” prescribed by his GP.
Mr Mangioni diagnosed symptoms consistent with a post-traumatic stress disorder based on the plaintiff’s description of persistent intrusive thoughts, avoidance and high physiological arousal. He observed that, despite time and treatment, minimal progress had been made. He recognised that the plaintiff’s situation was complicated because the employer is his brother-in-law and he, the plaintiff, had recently separated from his wife.
Mr Mangioni recommended intensive debriefing, cognitive restructuring and probable on-site desensitisation. He thought that the plaintiff would require 10 to 15 treatment sessions.
There are reports of three further consultations in the ensuing months. As at 17 July 2000 there seemed to be some signs of improvement, but nevertheless continuing significant psychiatric problems.
Dr Lewin is a consultant psychiatrist who saw the plaintiff, on the invitation of the insurer, in July 2000, June 2001 and October 2002. He recorded that the plaintiff left his wife not long after the hold-up. It is not suggested that this was wholly due to the trauma stemming from the accident. By the time of third report from Dr Lewin the plaintiff was working as a security guard.
Dr Lewin observed that the plaintiff reported mild persisting anxiety symptoms and some depressive symptoms. The anxiety symptoms were predominantly anxiety symptoms of arousal and hyperventilation symptoms. After hypothesising as to the possibility of an alcoholism problem, Dr Lewin provided a formal diagnosis of an Adjustment Disorder with mixed emotional features of anxiety and depression. He nevertheless thought the plaintiff to be fully fit to work. In his opinion, the plaintiff did not require ongoing treatment by psychologists nor did he require weekly counselling. In Dr Lewin’s opinion it would be reasonable for the plaintiff to be taking an anti-depressant medication. As at October 2002 the doctor considered that the plaintiff had minor residual symptoms that he expected would settle completely over the next few months.
Mr Borenstein, a clinical psychologist, first saw the plaintiff in November 2000, ie after the July 2000 motor accident. He reported that the plaintiff presented “in a very distressed state. He was notably anxious, tremulous, acutely depressed and perceived that he was losing control of his life. He noted suicidal ideas and a sense of displacement. The plaintiff reported sleep disturbance with accompanying weight loss in the order of 10kg, reduced energy, moodiness and irritability”.
Mr Borenstein recorded that the plaintiff’s symptoms had worsened since the accident and that they represented acute PTSD which unfortunately had developed into a chronic state. He recognised that there were external forces operating on the plaintiff, including the failure of his marriage, a fairly serious psychiatric disorder affecting his 18 year old son and the impact of the July motor vehicle accident.
Mr Borenstein commenced treating the plaintiff regularly. In a detailed report dated 1 July 2002 Mr Borenstein recorded that, since the first consultation in November 2000, the plaintiff had become more isolated and highly emotionally aroused. He was prone to marked mood variation and described feelings of vulnerability and compromised trust, typical of those who suffer with PTSD (Blue 567). Complaints reported as at May 2002 included disturbed sleep patterns, compromised motivation, variable appetite and dietary habits, anxiousness, increased caffeine intake, increased tobacco consumption, added nervousness about attending medical appointments and the like, becoming more easily frustrated and intolerant, impaired concentration and severely compromised libido.
The motor accident in November 2001 led to the plaintiff, in his words, being “emotionally … undone” (Blue 570). Since that incident the plaintiff was less trusting of medication. He was, however, at the time in regular employment as a security officer, working upwards of 40 hours per week.
Mr Borenstein’s latest report is dated 2 October 2003. He stated (Blue 579):
I remain of the opinion that Mr Rogers continues to suffer with chronic Post Traumatic Stress Disorder, which he is attempting to control for by way of returning to the work force, with variable success. Given the chronic nature of his condition, his prognosis for complete recovery is guarded. He requires ongoing psychological treatment of the sort that is being offered so far, as such a supportive regime allows for more effective symptom control, and allows Mr Rogers to claim as much of his life as is possible, albeit with variable success.
Whereas Mr Rogers has achieved a considerable success in returning to the work force, he remains limited with regards to improved interpersonal relating. He remains lonely and isolated in keeping with the diagnosis of chronic PTSD.
He requires ongoing weekly contact for another eight months or so, and then fortnightly contact for six months, and then monthly contact for some two to three years.
Mr Ross Colquhoun is a registered psychologist who first saw the plaintiff in January 2002 as part of his rehabilitation program relating to his workers compensation claim. A report dated 25 March 2002 was prepared in light of a review of the plaintiff’s file, including professional reports, an extensive consultation, the administration of psychometric tests and a number of counselling sessions with the plaintiff over the previous two months. Mr Colquhoun’s tests confirm a severe PTSD rating, coupled with clinical levels of depression.
Mr Colquhoun thought that the plaintiff’s progression from cleaning to security work was a positive development that occupied his time and helped him spend less time ruminating on the trauma. His attendance at counselling sessions had shown a shift in attitude. According to Mr Colquhoun (Blue 583):
He is much less consumed by negative thoughts and he is focussing more on the present and the future than on past events. His Post-Traumatic Stress Disorder symptoms are starting to become manageable as he comes to terms with the effect of the trauma on him and the adjustments he needs to make regarding treatment, his own competence in life choices and the affect of the drug treatment on his responses. At the moment he is only expected to attempt small gains as he is still very vulnerable psychologically. Part of the process is for him to retain his security license and to keep working at a level he can cope with.
The impression Mr Rogers created was that of a very sincerely and committed man, who is struggling with a traumatic event, which he does not have the resources to deal with alone and which have threatened to overwhelm him. He has always presented for rehabilitation counselling on time, with any materials requested of him, tidily dressed and clearly not intoxicated or showing the effects of intoxication. He has displayed symptoms of anxiety, but has responded honestly and willingly to treatment interventions. He has presented as a person with a strong sense of social responsibility.
Mr Colquhoun thought it essential at that stage that the plaintiff continue with his counselling for at least six months.
Dr Selwin Smith is a consultant psychiatrist who saw the plaintiff at the request of his solicitors in April 2002. Like others, Dr Smith diagnosed an Adjustment Disorder with Depressed and Anxious Mood. He confirmed the causal link between the workplace trauma and the continuing medical condition. Dr Smith concluded (Blue 589):
Given the length of time that has elapsed since the incident has occurred, I would regard Mr Rogers’ prognosis for complete recovery as guarded. The experiences he underwent have been indelibly imprinted on him. He does require further psychological and psychiatric intervention. I would recommend that he continue with Mr Sam Borenstein along the lines he is currently receiving. In the event that he is not improving, consideration should be given for Mr Rogers to attend a specialised Post-Traumatic Stress Disorder program which may provide him with the additional assistance he requires in overcoming his current impairments….
I found Mr Rogers to be a genuine man who has been significantly impacted by his injuries.
The other cluster of reports dealt with the consequences of the motor vehicle accidents. The plaintiff sustained a fracture of the left wrist in the first accident. In the second accident he suffered injury to the back, cervical spine and right ankle.
Dr Davies, who treated the plaintiff in hospital between 5 and 21 November 2001 performed an L3/4 laminectomy and L3/4 pedicle screw internal fixation and posterior-lateral fusion. When the plaintiff was reviewed on 4 January 2002 he was doing well, he did not need any analgesics and he complained of no radicular leg pain.
When the plaintiff was reviewed again on 8 April 2002, the doctor noted only occasional pain in the lateral thigh and calf. There was a background level of back pain, improving. At that stage the plaintiff was working fulltime as a security guard.
When the plaintiff was reviewed in February 2004 the doctor recorded that the fusion to deal with the unstable vertebral fracture would place additional stress at the L5/S1 level which in 20% of cases would lead to accelerated degenerative changes requiring surgery.
The plaintiff was asked about the continuing impact of his physical injuries. He said (Black 57):
Up until the last 6 months I had a lot of difficulty walking around a bit. Now it’s not so hard but it still does at time get tiring and painful at times.
Dr Fred Blake is an orthopaedic consultant to whom the plaintiff was referred in September 2003. He concluded that the plaintiff was permanently unfit for his previous work as a cleaner. He was fit for physically less demanding work, not placing significant stress through his lower back, left wrist, or right ankle. He thought that the disc above and below the site of the fusion was at risk of developing degenerative change in the future, with the possibility of increase in pain and disability.
It would therefore appear that the plaintiff’s situation has plateaued. There are some continuing difficulties, both on the psychological and orthopaedic fronts, but they appear to be well under control. There are risks of worsening, but they do not appear to be substantial. I infer that the symptoms of psychological trauma will continue to abate so long as the plaintiff stays away from cleaning work similar to that of the Carousel Inn. This is not to say that he will ever be completely free of the depressive impact of the tortiously-caused psychiatric illness.
The greater intensity of the non-economic loss relates to the past, including the physical and mental trauma stemming from the motor accidents. It is to be borne in mind that there were significant stressors in the appellant’s life in the years following the accident that were unrelated to it.
In the circumstances, $100,000 general damages seems appropriate. This should carry interest calculated in the ordinary manner.

Apportionment as between employer and Hotel

The employer and the Hotel addressed the Court as to the appropriate apportionment between them in the event that the Hotel is found liable to the plaintiff.
The employer submitted that the overwhelming responsibility for any foreseeable injury should rest with the Hotel that occupied and controlled the site and its security systems and co-ordinated (to a degree) the plaintiff’s cleaning tasks. Unlike the employer, the Hotel was said to have had actual knowledge of the earlier robberies and the amounts of cash kept on the premises. It was therefore in a better position to assess and respond to the need to take reasonable steps to protect the plaintiff’s safety. An 80/20 apportionment as between the Hotel and the employer was suggested.
The Hotel by contrast suggested that a 25/75 apportionment as between itself and the employer was the appropriate measure. It urged the Court to recognise that the primary duty lay upon the actual employer who appears to have given no attention to the relevant safety concern despite being aware that the plaintiff’s duties took him into the yard at night. It also pointed out that the employer called no evidence as to its knowledge on the topic of previous criminal activity at the Hotel or precautions taken to protect staff there.
I agree that the Hotel was in a better position to assess and respond to safety at the premises. But the employer had the ultimate control, in his authority to direct the plaintiff as to how he should go about his tasks. My observations in TNT Australia Pty Ltd v Christie [2003] NSWCA 47 with respect to an employer that operates a labour hire business are equally applicable to the present employer. At [67] I said:
In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.
I propose apportioning the burden of damages as to 60% on the employer and 40% on the Hotel. The calculations will need to comply with s151Z.
Disposition
The employer’s appeal therefore fails as against the plaintiff, but is successful as against the Hotel. The plaintiff’s cross-appeal against the Hotel is successful.
In consequence, the plaintiff is entitled to a verdict and judgment against the Hotel, and orders for apportionment as between the two defendants need to be made in lieu of the orders on the cross-claims that were made at trial.
There is no reason why the trial costs should not follow the event with the ultimate burden being shared between the defendants in the same proportion as the proposed apportionment of the damages liability to the plaintiff.
The complexity of issues addressed on appeal makes it inappropriate to separate out the costs of the appeal and the cross-appeal. It is better to focus attention upon the stances adopted by the three parties and their relative success on appeal. On this basis, the plaintiff should receive his costs in the Court of Appeal. The employer has had substantial, but not complete, success as against the Hotel. In my view the employer and the Hotel should share the burden of the plaintiff’s costs in this Court equally, but the employer should recover from the Hotel 75% of his own appeal costs (ie excluding the costs payable to the plaintiff).
The parties are directed to file minutes of order within 14 days. If agreement cannot be reached, the employer is to file and serve his proposed orders within a further period of 7 days. Thereafter the plaintiff and the Hotel are to file and serve submissions explaining and justifying their proposed amendments, with the employer having a further 7 days to file and serve his response to those submissions. Unless the Court decides otherwise, outstanding disputes will be resolved on the papers.
SANTOW JA: I agree with Mason P.
BROWNIE AJA: I agree with Mason P.

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LAST UPDATED: 22/09/2005

[2005] NSWCA 327

21 September 2005

Key Legal Topics

Areas of Law

Negligence & Tort

Employment Law

Legal Concepts

Duty of Care

Causation

Breach

Damages

Appeal

Vicarious Liability