Glen Wright bht James Stuart Wright v Optus Administration Pty Limited & Anor

[2017] HCATrans 159

[2017] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No S56 of 2017

B e t w e e n -

GLEN WRIGHT BHT JAMES STUART WRIGHT

Applicant

and

OPTUS ADMINISTRATION PTY LIMITED ACN 055136804

First Respondent

IPA PERSONNEL PTY LTD

Second Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 18 AUGUST 2017, AT 9.29 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS Z.C. HEGER, for the applicant.  (instructed by Firths)

MR G.M. WATSON, SC:   May it please the Court, I appear with MS D.F. VILLA, for the respondent.  (instructed by Hunt & Hunt Lawyers)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  As you have seen, there are two related points that we offer as fitting this case for a grant of special leave.  May I turn first to the question which arises in the first stage of reasoning under section 32 but then quickly move as to the common law.  Under section 32 of the Civil Liability Act, “the circumstances of the case” is the phrase which encompasses what I will call survives of the common law after the alteration of it effected by section 32.  Section 32’s alteration, as this Court has already observed, affects, in particular, the appreciation of what has come to be called as the normal fortitude proposition about the plaintiff.

It says ‑ that is, section 32 – nothing about the common law concerning the level of generality at which the risk in question – that is, the risk of harm to the plaintiff – is required to be held by the defendant in order, in the first place, to impose a duty of care and, in the second place, to provide the setting in which the reasonableness of a response is to be judged for the adjudication of negligence, that is, breach of the duty.

In this case at trial, my client succeeded by reason of the appreciated risk from the – I will call it disturbed individual – on the edge of a balcony four storeys up in what I will call an unauthorised location and the direction of my client into his vicinity by his supervisor.  It is critical, factually, in our submission, to appreciate that both at trial and in the slightly different, but only slightly different finding of those facts by Justice Gleesom in dissent, the central factual proposition which would be beyond contest were this case to be granted special leave is as follows.

There was sufficient appreciation of risk of harm, most obviously physical, but therefore because of section 32’s possible application also psychiatric, by Mr Williams himself.  Mr Williams, if I may remind you, is the more senior of the two supervising staff.  Ms Hedges had appreciated something sufficiently disturbing to be herself very upset and concerned, leading to her reporting to Mr Williams.

EDELMAN J:   The case at trial was not explicitly run on the basis of any allegation of negligence by Mr Williams at least, was it?

MR WALKER:   It is fair to say that both as a combination of the pleadings in the way in which the case was run it is not possible to say – and we do not say – that this was a vicarious liability case.  It was a case of direct corporate liability, the corporation acting through those individuals, placed by it in the relevant positions.  You are right, with respect, it is not a vicarious liability case, I think even in the alternative.

KIEFEL CJ:   That creates difficulties for foresight then, does it not?

MR WALKER:   No, because it is Mr Williams and Ms Hedges who were, by the corporation, placed in the position to appreciate circumstances and to react accordingly.

KIEFEL CJ:   When do you say at what point foresight is to be assessed then?

MR WALKER:   At the point where my client was directed to go to the brink with the disturbed individual.  That is the point.  This is not what I might call a standing system case.  This is a response to an emergency case.  Now, of course, there is no common law doctrine where emergency dissolves the possibility of duty of care.  If anything, subject always to the overriding requirement of reasonableness, the defining characteristic of reasonableness, emergency is the very set of circumstances where one is required to consider whether there has been a duty of care which has been breached.

EDELMAN J:   How do you put your case now then?  Is it put on the basis that Optus was negligent in its acts through Mr Williams or through Ms Hedges or through both of them?

MR WALKER:   That takes me – I said they were related points and your Honour’s question, with respect, requires me to go into what I will call the aggregation matter as well.  Can I attempt to answer it as follows?  The way we put it is that there is negligence by Optus, that the negligence is the combination of acts and omissions which, in this case, is by both Mr Williams and Ms Hedges. 

Of course, the ultimate action or conduct which constitutes the breach is that of Mr Williams.  It will be a breach that is falling short of the standard of care, however only if there is what I will call knowledge – it shades into the foresight question for duty as well – of the nature of the risk such as to render his direction to my client to approach the disturbed individual on the brink of the balcony.

Now, it is clear that “the circumstances of the case” – the expression from section 32 – that Mr Williams, from what had been reported to him by Ms Hedges and whatever else he brought to his thinking about the case, was himself apprehensive for his own safety and no one has suggested that that was by excessive or unjustified timidity.  It was a disturbing position, as reported to him by Ms Hedges, and as felt by him, hence his understandable and prudent recourse to having a stronger, younger, larger, fitter man with him.

Clearly enough, the circumstances were such – there was thought of the man being drugged, for example – that there was an awareness of the possibility of suicide; that is, after all, one of the risks when a human body is near the brink of an edge at an elevation.  Of course, that is one of the reasons why, in our submission, the attribution point, which certainly raises matters of great general importance, may not arise in this case, for the reasons that Justice Gleesom has pointed out, namely, that enough was known by Mr Williams without needing to add what Ms Hedges knew but did not pass on in order to render Optus liable.

Now, could I identify what Ms Hedges did not pass on?  She did pass on enough to make Mr Williams justifiably apprehensive for his own safety, but what she did not pass on was that ‑ unfortunately, was that my client did not regard himself as a friend of the disturbed man.  For the reasons that Justice Gleesom points out – I will not read it but the passages your Honours will have seen at pages 168 and 169 of the application book – those passages, in our submission, are important to dispel the idea that there has been an illegitimate aggregation of knowledge so as to render Optus liable.

If, however, on those uncontested facts, seen as a matter of law in a different fashion, it is regarded that in order for Optus to be negligent Ms Hedges’ additional piece of information, my client did not regard himself as a friend of the disturbed man – if that were necessary then, in our submission, for the reasons you have seen in our written submissions, that is a very important question for the general common law doctrine which ought to be examined by this Court on facts which throw it up appropriately.

Can I explain?  We have submitted that there is no abstract or general prohibition in the law of negligence against what is called aggregating or combining or making findings about more than one person, natural person, whose knowledge and conduct may be attributed to a corporation for the purposes of finding the corporation itself directly liable.

There is no general rule and as Chief Justice Allsop pointed out in Kojic, there will be cases ‑ depending upon (a) the cause of action in question, (b) if there is a duty, common law duty, the content of that duty and, (c) the organisational structure of the parties in question ‑ there will be cases where it will, of course, be de rigueur to look to what more than one person may have known.

The most obvious example of that is where, as a matter of common law in what might be called a complex, sophisticated or large scale enterprise, you have to have more than one person for the purposes of, say, investigation report, decision‑making, supervision.  In those cases, failures of system – for example, to require or to enforce reporting obligations – are manifestly something which as a matter of the policy of the law ought to be regarded as possibly a breach.

Now, those cases will always involve aggregating.  What did the person who should have reported it know?  What did the person to whom the report would have been made, what did they know?

EDELMAN J:   All of this can only become relevant in relation to the special leave question as feeding into what the proper test for duty of care ought to have been, can it not?

MR WALKER:   Yes, but only in a sense that in every case a duty of care has to be found by a proper jurisprudential method.

EDELMAN J:   Yes.

MR WALKER:   The Court of Appeal has not identified any error except concerning the level of generality at which the risk needed to be appreciated in order for there to be a duty of care, let alone breach.

EDELMAN J:   What was wrong with the findings, or the conclusions, at paragraph 67(a) at page 113 of the application book?

MR WALKER:   That is at a level of generality which encompasses assault without needing to envisage murderous intent.  May I immediately say, it is unexplained in the holdings against us in the Court of Appeal why murderous intent has anything to do with what was required in order to found a duty of care.

KEANE J:   Well, not necessarily murderous intent.

MR WALKER:   Well, quite.

KEANE J:   But when one looks at 62:

reasonably foreseeable that one call‑centre trainee might assault another in a manner which, although it caused no physical injury, might nevertheless be so serious –

So that it is ‑ ‑ ‑

MR WALKER:   Without any doubt, your Honour.

KEANE J:   We do not need to sort of build it up to murderous intent but, nevertheless, an assault so serious that though not causing physical injury nevertheless causes a foreseeable psychiatric injury.

MR WALKER:   Yes, completely.  We entirely accept that there needs to be what might be called a calibration ‑ that is, reasonableness ‑ which underlies a number of stages of analysis for the cause of action in negligence – obviously, envisages the nature of the case as being such as to excite a content of duty in this case so as to render it negligence to direct my client to approach the man, the disturbed man, on the brink.  That is why in dissent – and, with respect, enhancing the trial reasoning on this point ‑ Justice Gleesom properly points out that there is absolutely no need for murderous intent to be envisaged.  We would add to that, after all Mr Williams himself had correctly speculated about suicidal intent.

Now, the risk of grappling with a would‑be suicide on the brink of four storeys up is as great in relation to threatened harm and in its train what I will call post‑traumatic stress or whatever other psychiatric sequela, whether the person is trying to kill themselves or whether they are trying to kill others, and it is obviously as great – indeed, some may say greater but that would be a speculation – whether the person is such as to be capable of being held criminally responsible or not; that is, full‑blown psychosis, for example, or not.

So that the danger in this case was wrongly found by the majority of the Court of Appeal to be required to be understood or entertained as a possible risk at the level of specificity which they have identified.  We entirely accept what, as Justice Keane has put to me, is the appropriate measure at the appropriate level of abstraction, a risk of physical harm, obviously by assault or grappling or other involvement with a person on the brink of a drop such as to bring in its train a sufficiently realistic prospect of the psychiatric harm which unfortunately my client did suffer. 

Now, in our submission, both the trial judge and, with the adaptations made by his Honour, Justice Gleesom in the Court of Appeal, took an approach which does accord with general principle - and so in a delayed answer to an aspect of Justice Edelman’s question to me then, of course, the ascertainment of the existence and scope or content of the duty of care has to proceed in orthodox fashion and it did in those judgments. 

It is unorthodox, with respect, to require foresight when one is talking about physical harm caused by dropping off a building, for example.  It is unorthodox to have required that the people who should have guarded those under their direction against that risk to have appreciated the nature of criminal intent, so called ‑ ‑ ‑

EDELMAN J:   Where does either Justice Basten or Justice Hoeben require that foresight of that criminal intent?

MR WALKER:   At page 114 we have in 69, 70 and 71 findings which refer to at line 32:

an assault of that severity, intended to put his life in peril –

At page 123 in Justice Hoeben’s concurrence, paragraph 101, line 37:

the conduct of Mr George in seeking to kill Mr Wright.

EDELMAN J:   But paragraph 70 is only saying that:

Arguably, it was only an assault of that severity, intended to put his life in peril ‑ ‑ ‑

MR WALKER:   No, it is the last sentence, your Honour, to which I am looking at in that paragraph:

Absent a finding as to the foreseeability of such conduct, Optus was under no relevant duty to take reasonable care.

So that is where we say ‑ ‑ ‑

EDELMAN J:   So, but is not that “such conduct” referring to the first sentence which says:

There was no express finding as to the nature of the risk which might lead a person of normal fortitude to suffer a psychiatric illness –

which is in keeping with paragraph 62 which Justice Keane referred to and in paragraph 67(a) which is expressing it at that higher level of generality.

MR WALKER:   No – may I try and persuade your Honour why?  In paragraph 70 the correct general proposition in paragraph 72 is being applied to his Honour’s appreciation of the case before the Court.  In paragraph 70, by way of pointing out a deficiency in the then respondent’s case, the plaintiff’s case, there is first observed there is no express finding

as to the nature of the risk and it is true, of course, there has to be findings as to nature of risk in order to ground common law reasoning. 

Now, we submit that is an inappropriate summary by his Honour of the findings that were made at trial for the reasons we have set out in writing and Justice Gleesom has identified.  But it is the next two sentences in paragraph 70 that complete the reasoning so as to uphold the appeal below.  Now, “Arguably” is not against us in terms of this reading.  It really shows that his Honour, having a deficiency in requisite findings, is offering without any great enthusiasm one that would have sufficed, namely, an assault intended to put his life in peril.  He says of that that is the conduct in the next sentence:

Absent a finding as to the foreseeability of such conduct –

So the only one that has been offered, tentatively, as it were, or with some doubt in place of the deficiency that the paragraph starts with that there would have been a duty and that, as I say, is clearly taken up by Justice Hoeben in the passage to which I have referred to. 

So that it is clear that the majority has - and we submit in a way that is entirely unorthodox - that they have said that it required foresight of the possibility of a homicidal intent and that, with respect, is an almost classic example of the undesirability as well as the non‑necessity but the undesirability of building in far too specific requirements in relation to the risks that arise from circumstances that after all have led Mr Williams to be apprehensive for his own safety. 

If apprehensive for his own safety, why not apprehensive for my client’s safety and, if apprehensive for my client’s safety, as Justice Gleesom points out, why not to the extent of understanding that there was a risk of being pushed off, dragged off, taken together with the perhaps suicidal man, off the edge of the building and why would that possibility of a near brush with death, which did, in fact, ensue, be such as reasonably to advert one to the possibility of terrible mental consequences which is what, in fact, had happened. 

In other words, what in fact happened is not at all unlikely in the course of human understanding of the world.  Someone almost killed my client and the only question is were the circumstances such as to excite a requirement at common law for there to be a response to that possibility bearing in mind that the consequences include psychiatric disablement.  I see the time, your Honours.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Watson.

MR WATSON:   Your Honours, in determining whether a relevant duty of care existed, these were the kinds of factors which had to be taken into account here – the circumstances, as it were.  The first is the very unusual circumstances.  The second is the fact that the conduct was of a criminal character.  That has the specific legal effect arising from it.  But here, there is also that aspect which is the very randomness of this criminal conduct.

Another factor is the complete lack of experience of a similar kind of incident.  Another factor is the statutory setting, of course the Civil Liability Act.  Then there is the nature of the injury and it is a pure psychological injury.  All of those factors had to be taken into account, but they also had to be coupled with this.  This was an instance where there were conflicting concerns and if a duty is contended on one side, the potential for a conflicting duty, once it was observed that the assailant, George, was potentially suicidal and seemed to be calling for some sort of emotional assistance perhaps, what was the reasonable response to that, so that all of those factors had to be taken into account in deciding is there a duty here. 

Now, your Honours would have seen that we have complained about the primary judge’s approach to duty.  I will just refer your Honours to it.  It is in the application book at page 31, but your Honours would have seen it.  It is paragraph 77.  Perhaps we should look briefly at it because we would respectfully submit it also set the primary judge on the wrong path towards fact finding.

Your Honours will see that what happened was that the primary judge described the duty of care in two separate sentences.  The first was setting up a system of work.  Now, it is true, Mr Wright was not employed by Optus but his Honour said that did not matter, it was obliged to set up the system of work.  It does not sound really, your Honours, like a system case or even arguably so.  But then it goes on to say that the:

safe system of work . . . extending to taking reasonable care to protect him [Mr Wright] from the criminal acts of others in the workplace.

Now, your Honours, no duty has ever been expressed in that kind of fashion.  It goes way beyond the ordinary duty of reasonableness.

KIEFEL CJ:   I did not understand Mr Walker to rely upon any idea of a system of work.  In fact, I thought he disavowed it.

MR WATSON:   That is true, but it is one of the issues that we have with this being presented as a special leave vehicle insofar as the trial judge approached it from this viewpoint and that also set his Honour onto the path of the way in which he found facts and determined breach.

EDELMAN J:   Do you accept that if the majority of the Court of Appeal had characterised the duty of care at a level of particularity which required foresight of murderous or suicidal intent that that would have been an error?

MR WATSON:   Maybe, maybe not.  But, your Honours, they did not do it I guess is my soft answer to your Honour’s hard question.  Can I just then say this?  His Honour the primary judge then looked at the factors involved in it being a purely psychological injury only after having determined the nature of the duty of care.  We would respectfully say that should not be supported, and I notice that it was put against us that it was only about the particularity of the expression of “the duty of care or risk” is the only error identified in the Court of Appeal.  That is not so.  No one, not even Mr Wright, tried to support the trial judge’s expression of the duty of care.

I take your Honours to actually what was decided.  I saw in some of the written submissions put against us that it was suggested that on the formulation by the two judges in the majority in the Court of Appeal that a duty of care would only be found where the court could be satisfied that there was this intent to murder.  That is just not, as your Honours have pointed out by going to particular paragraphs, what was found.  It overstates what was said. 

In that respect, I do not need to take your Honours back to it but there are repeated statements by Justice Basten which said it at a much lower order – that is, an assault which would be of sufficient severity to create a purely psychological injury.  That is an unusual thing to occur but this is a very unusual case.  They are…..as your Honour Justice Keane mentioned, one is in paragraph 62.  As your Honour Justice Edelman identified, there are other expressions, in paragraph 67, 69, 70, and in paragraph 97. 

Meanwhile, it is also said that that is the position taken by Justice Hoeben; with respect, not so.  If I take your Honours to the application book, page 124, paragraph 103 is the concluding critical paragraph of Justice Hoeben’s position and he took into account this idea of a sufficiently serious assault.  In other words, it was not pitched at that higher level for which my learned friend now contends.

There are other observations I wish to make about ‑ the case on the aggregation point, there are difficulties with that.  We say one of them is that the point was never clearly articulated or taken at trial.  In fact, there was a deliberate disavow of a vicarious liability case based upon the conduct of Mr Williams.  What has now happened, as I understand it, is that there is a case made out that the knowledge should be aggregated, including that of Mr Williams added to other people ‑ ‑ ‑

KIEFEL CJ:   That is just meant to tantalise us, I think.  But if we just focus on Mr Williams and the circumstances that arose, it is I think correct to infer – to say as Mr Walker did that Mr Williams clearly was concerned for his own safety because he took another person back with him.

MR WATSON:   He corrected that later – I am sorry, when I say “he corrected that” I mean Mr Williams corrected that because he was on the roof for a while.  Your Honours will see this at application book, page 92.  He changed his mind.  It is at page 92.  It is the decision of Justice Basten at paragraph 11.  This is after Mr Williams had been on the roof, he had been there for a while, and then says those things.

KEANE J:   Apart from that, a difficulty with the case that would now be put, as one understands it, that is as a case that pro hac vice Mr Williams was his employer.  If one looks at paragraphs 94 and 95 at page 121, one sees reference to the case that was made and the absence of critical findings in relation to Mr Williams.  Is there not a difficulty in now running a case that pro hac vice Mr Williams was his employer, given that 94 and 95 are expressed in terms which deny the possibility of negligence on his part?

MR WATSON:   Well, in short, yes, and it is the construction of a new case, one which was, as I understand it, I was not at the trial, but not the way in which it was framed.  Your Honours have seen that this concept of vicarious liability which surely must depend upon Mr Williams having done something himself which was negligent – that is the only way the vicarious liability case could be put, and was not put.

Could your Honours also notice the last sentence of paragraph 89 which is on application book page 120, where in introducing this concept Justice Basten has turned his mind to it and observed no findings were made and on any view no complaint could be made.

Your Honours, can I just – I will be very brief, it is not done in terrorem.  Can I just point out other problems with this case as a special leave vehicle?  Unfortunately, because their Honours in the majority decided that there was no relevant duty, there has been no finding against us of breach.  Their Honours did not go on to deal with that.  It is impossible to deal with a breach case where you cannot find a relevant duty.

So we have not been the subject of a decision on that.  We would respectfully submit that is, of course, a task this Court could undertake but there were a lot of facts.  Another matter is this.  It is a very practical matter.  There has been no decision on damages, and although I notice the applicant ‑ ‑ ‑

KIEFEL CJ:   These are matters which could – that could be determined by the Court of Appeal.

MR WATSON:   Well, that is true, your Honour, that could be dealt with on a remitter, although I do notice that the applicant sought restoration of the trial court’s orders which is a little daring because in fact we had won in the Court of Appeal in the orders made by Justice Gleeson, that being a substantial reduction in the damages and the like.  Those matters would need to be remitted and there would be a – well, your Honours, that is what I wanted to say.  We oppose the grant of special leave.  Thank you.

KIEFEL CJ:   Do you have anything in reply, Mr Walker?

MR WALKER:   Briefly.  Just on the last point, of course, being denied the opportunity to press a case on breach and damages is, of course, the very reason why it is in the interests of justice that there be a grant.  In relation to Mr Williams’ appreciation of risk, it is pretty clear from the evidence which is reviewed on pages 92 and 93, particularly paragraphs 9 and 13, that it was an apprehension that Mr Williams regarded as being met by the precautions he had taken for himself that is still available to justify what he should have felt for my client.  Next, in relation to ‑ ‑ ‑

KIEFEL CJ:   I think that is corrected at paragraph 14 on page 93 where it is said:

It is true that Mr Williams asked Mr Dee to accompany him for his own safety, but that was before he had assessed the situation for himself.

MR WALKER:   But when you look at the evidence in 13, particularly his last answer:

No, because I had Paul there –

In other words, the precaution was there and that is why he was no longer concerned.  In other words, the ground of apprehension remained but the precaution had been taken and was regarded as adequate, but that is a precaution he took for himself.  No similar precaution for my client at all.  But at page 121, paragraphs 94 and 95 to which Justice Keane has drawn attention, it is clear, of course, that there was not run a case of vicarious liability – that is negligence of Williams – and that is not available and we do not seek to agitate it.  It is direct liability or nothing and, of course, you do not have to allege, or have found, vicarious liability in order to grant direct liability. 

At page 123, paragraph 101, notwithstanding, indeed, in order to give content to the summary paragraph to which my friend goes which is paragraph 103 on the next page, paragraph 101 shows the reasoning of Justice Hoeben for his concurrence and it has to do with, as his Honour puts it there:

only that conduct which put his life in peril –

and it is for those reasons, in our submission, that there has been the error worthy of consideration, and we submit correction by this Court, committed in this case.  May it please the Court.

KIEFEL CJ:   The Court considers that this matter would have insufficient prospects of success.  Special leave is refused with costs.

The Court will adjourn to reconstitute.

AT 10.05 AM THE MATTER WAS CONCLUDED