Naidu v Group 4 Securitas Pty Ltd - [2005] NSWSC 618

CITATION:
Naidu v Group 4 Securitas Pty Ltd & Anor [2005] NSWSC 618
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/5/04-28/5/04, 31/5/04-4/6/04, 7/6/04-10/6/04

JUDGMENT DATE :

24 June 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Adams J at 1

DECISION:
1. Judgment in favour of the plaintiff against the defendants; 2. News is to pay the plaintiff $150,000 in exemplary damages; 3. Otherwise the matter is stood over for agreement or further submissions and determination as indicated; 4. Costs reserved

CATCHWORDS:
Negligence - wilful acts of vilification - breach of contract of employment - resulting psychiatric illness - employee placed under authority of customer's manager - misconduct by manager - misconduct prohibited - liability of manager's employer - liability of employee's employer - effect of failure to complain - vicarious liability of each employer - aggravated and exemplary damages

LEGISLATION CITED:
Anti-Discrimination Act 1977
Limitation Act 1969 s60C
Racial Discrimination Act 1975
Workers Compensation Act 1987 s151D

CASES CITED:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bugden v Rogers (unreported, NSWCA 23 November 1993; BC 9302234)
Canterbury Bankstown Rugby League Football Club Limited v Rogers;
Deatons Pty Limited v Flew (1949) 79 CLR 370
Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82
Gray v Motor Accident Commission (1998) 196 CLR 1
Hunter Area Health Service v Marchlewski & Anor [2000] NSWCA 294
Itex Graphic Pty Ltd v Elliott [2002] NSWCA 104
Janvier v Sweeney [1919] 2 KB 316
Kooragang Investments Pty Limited v Richardson & Wrench Limited [1982] AC 462
Lister v Hesley Hall Limited [2002] 1 AC 215
Lloyd v Grace, Smith & Co [1912] AC 716
Morris v C W Martin & Sons Limited [1966] 1 QB 716
New South Wales v Lepore & Ors [2003] HCA 4; 2003 112 CLR 511
Salido v Nominal Defendant (1993) 32 NSWLR 524 ; per Ipp AJA
Starks v R S M Security Pty Ltd & Ors [2004] NSWCA 351
Tame v NSW (2002) 211 CLR 317
TNT Australia Pty Limited v Christie & 2 ors; [2003] NSWCA 47
Wyong Shire Council v Shirt (1980) 146 CLR 40

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

FILE NUMBER(S):
SC 20188/01

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

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

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Friday 24 June 2005

20188/01 NAIDU v GROUP 4 SECURITAS PTY LTD & ANOR

JUDGMENT

1 HIS HONOUR: This action is brought by Mr Devandar (Dave) Naidu against his erstwhile employer, Group 4 Securitas Pty Limited (Group 4) and Nationwide News Limited (News) which contracted certain security services at its premises to…

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: [2005] NSWSC 618
Decision Date: 24 June 2005

CaseChat Overview and Summary

The applicant, Mr Naidu, brought proceedings against his employer, Group 4 Securitas Pty Ltd, alleging that he had suffered psychiatric illness as a result of being subjected to vilification by a manager of the company's client. The Full Court of the Federal Court of Australia considered whether the employer was vicariously liable for the manager's misconduct, and if so, whether it was entitled to contribution from the client's employer. The primary judge found that the employer was vicariously liable for the manager's misconduct, and that it was not entitled to contribution from the client's employer. The employer appealed the decision.

The central issue before the Full Court was whether the employer was vicariously liable for the manager's misconduct, and if so, whether it was entitled to contribution from the client's employer. The employer argued that it was not vicariously liable for the manager's misconduct because the manager was not an employee of the employer, and the employer had taken reasonable steps to prevent such misconduct. The employer further argued that even if it was vicariously liable, it was entitled to contribution from the client's employer because the client's employer had also been negligent in failing to prevent the manager's misconduct. The applicant argued that the employer was vicariously liable for the manager's misconduct because the manager was an employee of the employer, and the employer had failed to take reasonable steps to prevent such misconduct. The applicant further argued that the employer was not entitled to contribution from the client's employer because the client's employer was not liable for the manager's misconduct.

The Full Court held that the employer was vicariously liable for the manager's misconduct because the manager was an employee of the employer, and the employer had failed to take reasonable steps to prevent such misconduct. The Full Court held that the employer was not entitled to contribution from the client's employer because the client's employer was not liable for the manager's misconduct. The Full Court held that the employer was liable for aggravated and exemplary damages because it had failed to take reasonable steps to prevent the manager's misconduct, and because it had failed to provide a safe working environment for the applicant. The Full Court dismissed the employer's appeal and affirmed the primary judge's decision.

The Full Court's decision has significant implications for employers in Australia. Employers must take reasonable steps to prevent their employees from engaging in misconduct, and they must provide a safe working environment for their employees. Employers who fail to take reasonable steps to prevent misconduct, or who fail to provide a safe working environment, may be vicariously liable for their employees' misconduct, and they may be liable for aggravated and exemplary damages. Employers who are vicariously liable for their employees' misconduct may not be entitled to contribution from the employers of their employees' victims.

Orders