Naidu v Group 4 Securitas Pty Ltd - [2006] NSWSC 144

Reported Decision:
150 IR 203

New South Wales

Supreme Court

CITATION: Naidu v Group 4 Securitas Pty Ltd & Anor [2006] NSWSC 144

HEARING DATE(S): 24/5/04-28/5/04, 31/5/04-4/6/04, 7/6/04-10/6/04, 24/6/05,1 & 2/9/05

JUDGMENT DATE :
15 March 2006

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: Judgment for the plaintiff against News Limited for $1,946,189.40 plus indemnity costs; Judgment for the plaintiff against Group 4 Securitas Pty Ltd to be calculated in accordance with the judgment plus indemnity costs.

CATCHWORDS: Psychiatric illness caused by intentional intimidation and humiliation by employee of contractor - plaintiff employed by security firm stationed at contractor's premises - liability of plaintiff's employer - liability of contractor - whether wrongful acts committed in course of employment - claim in tort and breach of contract - whether aggravated damages available against contractor for pre-illness suffering causative of compensable psychiatric illness - whether employer liable in contract for contractor's employee's misconduct - conditions of contract of employment - whether infliction of distress and humiliation breach of contract - whether distress and humiliation falling short of psychiatric illness compensable - whether damages only nominal - exemplary damages - calculation of damages - significance of reduced liability of employer under s151Z Workers Compensation Act 1988 - indemnity costs - need for certainty of offer - whether offeree bound to make usual enquiries of relevant matters

LEGISLATION CITED: Industrial Relations Act 1988
Division 3 of Part 5 and s151Z of the Workers Compensation Act 1987

CASES CITED: Addis v Gramophone Co Ltd [1909] AC 488
Baltic Shipping Company v Dillon [1992-1993] 176 CLR 344
Burazin v Blacktown City Guardian (1996) 142 ALR 144
Grljak v Trivan Pty Limited unreported, NSWCCA 19 April 1996
Morgan v Johnson (1998) 44 NSWLR 578
Silberman v Silberman (1910) 10SR (NSW) 554 at 557
Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294
Marinko v Masri [1999] NSWCA 364

PARTIES: Devandar NAIDU (Plaintiff)
Group 4 Securitas Pty Limited (First defendant)
News Limited (Second defendant)

FILE NUMBER(S): SC 20188/01

COUNSEL: Mr D T Kennedy SC, Mr B Slowgrove (Plaintiff)
Mr G Parker (First Defendant)
Mr S E Torrington (Second Defendant)

SOLICITORS: Albert A Macri (Plaintiff)
P W Turk & Associates (First Defendant)
Wotton & Kearney (Second Defendant)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

15 MARCH 2006

20188/01 - DEVANDAR NAIDU v GROUP 4 SECURITAS PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: In my principal judgment in this matter I indicated that a number of significant issues concerning the calculation of damages were outstanding and required to be addressed by the parties. The major issues were apportionment and the effect of Division 3 of Part 5 and s151Z of the Workers Compensation Act 1987, the application of Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294 and damages for breach of contract.

2 I had indicated a preliminary view about the effect of s151G of the Act but invited the parties to make further submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 144
Decision Date: 15 March 2006

CaseChat Overview and Summary

The case of Naidu v Group 4 Securitas Pty Ltd involved an employee of a security firm, who was stationed at premises of a contractor, who developed a psychiatric illness after being subjected to intentional intimidation and humiliation by an employee of the contractor. The dispute centred on the liability of both the employer and the contractor for the psychiatric injury, as well as the availability of aggravated damages and exemplary damages. The court was required to determine whether the wrongful acts were committed in the course of employment, and if the employer could be held liable for the misconduct of the contractor’s employee. Additionally, the court needed to consider whether the distress and humiliation, even if falling short of psychiatric illness, was compensable, and whether the employer was liable in contract for the contractor's employee's misconduct.

The court examined the terms of the employment contract and the conditions under which the plaintiff was working. It considered the significance of the reduced liability of the employer under section 151Z of the Workers Compensation Act 1988, which pertains to vicarious liability in cases of intentional acts. The court also deliberated on the availability of indemnity costs, particularly the necessity for a clear offer and whether the offeree was obligated to conduct standard inquiries regarding relevant matters. The court found that the employer could be held liable for the intentional acts of the contractor’s employee, given the circumstances of the case, and that the distress and humiliation caused by the contractor’s employee constituted a breach of the contract of employment.

In its reasoning, the court held that the employer was liable for the psychiatric injury caused by the contractor's employee, as the acts were intentional and occurred in the course of employment. The court also ruled that the contractor was liable for the pre-illness suffering that was causative of the compensable psychiatric illness, and that aggravated damages could be awarded. Furthermore, the court determined that exemplary damages were appropriate, taking into account the severity and deliberate nature of the actions taken by the contractor’s employee. The court also clarified the calculation of damages, noting the impact of the reduced liability provisions under the Workers Compensation Act. Finally, the court addressed the issue of indemnity costs, establishing that a certain and unequivocal offer was necessary and that the offeree was not required to make customary inquiries into relevant matters.

Orders