Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 Hearing dates: 29 March 2016 Decision date: 17 February 2017 Before: Basten JA at [1];
Hoeben JA at [99];
Gleeson JA at [104]Decision: (1) Allow the appeal and set aside the orders made in the Common Law Division on 20 March 2015, other than the order setting aside orders pronounced on 6 March 2015.
(2) In place thereof, give judgment for the first defendant against the plaintiff and otherwise dismiss the amended statement of claim filed 24 July 2012.
(3) Dismiss the cross-claims between Optus Administration Pty Ltd and IPA Personnel Pty Ltd and Drake Australia Pty Ltd.
(4) Order that the plaintiff pay the first defendant’s costs of the trial (excluding any costs associated with the cross-claims).
(5) Order that the first respondent pay the appellant’s costs of the appeal.
(6) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to his costs of the appeal.Catchwords: TORTS – negligence – duty of care – liability for mental harm – whether recognised psychiatric illness reasonably foreseeable in the circumstances of the case – whether plaintiff established existence of duty owed by defendant – Civil Liability Act 2002 (NSW), s 32
TORTS – negligence – non-delegable duty – vicarious liability – attribution to employer of knowledge of non-supervisory employees – no finding of duty as to mental harm on part of any employee – no finding of negligence on part of any employee – whether employer liableLegislation Cited: Civil Liability Act 2002 (NSW), s 5B, 27, 30, 31, 32; Pt 3; Sch 1, Pt 3, cl 6(1)
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Sch 1, Pt 5
Civil Liability Act 1936 (SA), s 33
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5
Liquor Act 1982 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1(a)
Workers Compensation Act 1987 (NSW), s 151ZCases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Ashrafi Persian Trading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafinia (2002) Aust Torts Rep 81-636; [2001] NSWCA 243
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409
Bilta (UK) Ltd (in liquidation) v Nazir (No 2) [2015] UKSC 23; [2015] WLR 1168
Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Commonwealth of Australia v Gretton [2008] NSWCA 117
Costa v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270
Doherty v The State of New South Wales [2010] NSWSC 450
Fozza v Tooth & Co Ltd [1964] 112 CLR 316; [1964]…
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- Case
- [2017] NSWCA 21
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the trial judge had erred in finding that Optus owed Mr Wright a duty of care to prevent him from suffering a recognised psychiatric illness, and consequently, whether Optus was liable for negligence. Specifically, the court had to consider the application of section 32 of the *Civil Liability Act 2002* (NSW), which governs liability for psychiatric injury, and whether the harm suffered by Mr Wright was reasonably foreseeable. The court also considered issues of vicarious liability and the attribution of knowledge to an employer from its employees, particularly in circumstances where no direct duty of care or negligence was established on the part of any employee.
The Court of Appeal allowed Optus's appeal, setting aside the orders of the Common Law Division that had found Optus liable. The court reasoned that the trial judge had erred in finding that Optus owed Mr Wright a duty of care to prevent psychiatric harm. The court concluded that the circumstances did not give rise to a reasonably foreseeable risk of recognised psychiatric illness, a prerequisite for establishing such a duty under section 32 of the *Civil Liability Act 2002* (NSW). Furthermore, the court found no basis for vicarious liability as there was no finding of negligence or breach of duty on the part of any Optus employee. Consequently, the court entered judgment for Optus against Mr Wright and dismissed his amended statement of claim. The cross-claims between Optus and other parties were also dismissed.
Orders
Orders of the court
(1) Allow the appeal and set aside the orders made in the Common Law Division on 20 March 2015, other than the order setting aside orders pronounced on 6 March 2015.
(2) In place thereof, give judgment for the first defendant against the plaintiff and otherwise dismiss the amended statement of claim filed 24 July 2012.
(3) Dismiss the cross-claims between Optus Administration Pty Ltd and IPA Personnel Pty Ltd and Drake Australia Pty Ltd.
(4) Order that the plaintiff pay the first defendant’s costs of the trial (excluding any costs associated with the cross-claims).
(5) Order that the first respondent pay the appellant’s costs of the appeal.
(6) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW) with respect to his costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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