Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright

[2017] NSWCA 21

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 liable
Legislation 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 151Z
Cases 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] HCA 29 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Graham v R (1998) 157 ALR 404; [1998] HCA 6 Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 Gulic v Boral [2016] NSWCA 269 Hamilton v Nuroof WA Pty Ltd (1956) 96 CLR 18; [1956] HCA 42 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v Mazzafero [2012] NSWCA 170 King v Philcox (2015) 320 ALR 398; [2015] HCA 19 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 Lepore v State of New South Wales [2001] 52 NSWLR 420; [2001] NSWCA 112 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Nicol v Whiteoak (No 2) [2011] NSWSC 1486 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rogers v Whitaker (1992) 175 CLR 479 Romeo v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5 Scott v Davis (2000) 204 CLR 33; [2000] HCA 52 Shaw v Thomas (2010) Aust Torts Reps 82-065; [2010] NSWCA 169 State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 Tesco Supermarkets Ltd v Naltrass [1972] AC 153; [1971] UKHL 1 TNT (Australia) Pty Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 Wallace v Kam (2012) 250 CLR 375; [2013] HCA 19 Watson v Foxman (1995) 49 NSWLR 315 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 Wright by his tutor Wright v Optus Administration Pty Limited (No 2) [2015] NSWSC 288
Texts Cited:	Furzer Crestani Handbook
Category:	Principal judgment
Parties:	Optus Administration Pty Limited (Appellant) Glenn Wright by his tutor James Stuart Wright (First Respondent) IPA Personnel Pty Limited (Second Respondent)
Representation:	Counsel: GM Watson SC / DF Villa (Appellant) RA Cavanagh SC / J Callaway (First Respondent) L King SC (Second Respondent)   Solicitors: Hunt and Hunt Lawyers (Appellant) Firths the Compensation Lawyers (First Respondent) Sparke Helmore (Second Respondent)
File Number(s):	2015/115083
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: Wright by his tutor Wright v Optus Administration Pty Limited [2015] NSWSC 160 Date of Decision: 20 March 2015 Before: Campbell J File Number(s): 2009/297493

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Glenn Wright, claimed damages for psychological injury as a result of an attempt by a co-worker, Nathaniel George, to murder him by attempting to throw him from the roof of the premises of the respondent (Optus) at Gordon. He sued Optus as occupier of the premises at which the attempted murder occurred and the entity responsible for his presence at those premises.

Both Mr Wright and Mr George were attending a training course at Optus premises, for call centre operators. The course was conducted by an Optus employee, Natalie Hedges, on the ground floor. Mr Wright and Mr George were unknown to each other before the training course commenced on 12 March 2001. Shortly prior to 15 March 2001, Mr George formed the desire to kill someone, and on the previous night, randomly settled on Mr Wright as his intended victim.

At about 9:30 am on 15 March 2001, Mr George, having left the training course on the ground floor, was found in an unauthorised place on the roof balcony on the fourth floor of the Optus premises. Ms Hedges reported the incident to her superior, Trevor Williams. Together with Paul Dee he went to the roof balcony and observed Mr George to be unresponsive, appearing to be in a trance-like state, and repeatedly asking for “Glenn” while pacing up and down the roof balcony near the waist-high railing.

Mr Wright reluctantly complied with a request from Mr Williams communicated via Ms Hedges to provide his assistance and left the ground floor to attend the roof balcony. Mr Williams asked Mr Wright whether he had supplied drugs to Mr George, to which Mr Wright answered, “no”. Mr Williams then left the balcony in order to report to senior management who instructed him to make arrangements for Mr George to be removed from the premises by the labour-hire company which had supplied his services.

While he was gone, Mr Wright approached Mr George while Mr Dee and Ms Hedges observed from about 15 metres away. After encouraging Mr Wright to go close to the balcony railing, Mr George attempted to lift Mr Wright off his feet and throw him from the balcony, while also punching and hitting him. Mr Dee intervened and restrained Mr George, allowing Mr Wright to escape.

As a result of the incident, Mr Wright suffered a blow to the head, occasioning no compensable loss. He later developed chronic severe post-traumatic stress disorder.

The primary judge found that the relationship between Optus and Mr Wright was analogous to that of employer and employee, even though Mr Wright and Mr George were both employed by labour hire companies that had supplied their services to Optus. The primary judge also found that Optus’ duty of care to Mr Wright extended to taking reasonable care to protect him from the criminal acts of others in the workplace. In relation to the requirement in s 32 of the Civil Liability Act 2002 (NSW) that the prospect of a person of normal fortitude suffering pure mental harm must be reasonably foreseeable, the primary judge found that it was reasonably foreseeable that Mr George may assault Mr Wright when he was brought to him and that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken. The primary judge identified the risk of harm as the risk that Mr George might inflict personal injury on Mr Wright, including mental harm, in the circumstances actually known to Optus employees, in particular Mr Williams and Ms Hedges, before Mr Wright was asked to attend the level four balcony. His Honour found that that risk was not insignificant, and that a reasonable person in Optus’ position would not have put Mr Wright in harm’s way by exposing him to Mr George’s aberrant behaviour. Judgment was ultimately entered in favour of Mr Wright for $3,922,116.09.

Issues on appeal

The issues on appeal were as follows:

(i)   Whether Optus owed any relevant duty of care to Mr Wright not to cause him mental harm;

(ii) In particular, whether the foreseeability requirement in s 32 of the Civil Liability Act 2002 (NSW) was satisfied – that Optus ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken;

(iii)   Whether Optus breached any duty that it owed to Mr Wright;

(iv)   Whether the reasonable response to the risk of harm to Mr Wright was to remove Mr George from the premises and not to allow other workers to approach him before his removal;

(v)   Whether Optus was vicariously liable for the conduct of Mr Williams or Ms Hedges;

(vi)   Whether the primary judge erred in his assessment of damages under five heads: non-economic loss, future care, future medical treatment, future economic loss, and fund management.

Held per Basten JA (Hoeben JA agreeing); Gleeson JA dissenting

In respect of (i) and (ii)

1. The primary judge impermissibly aggregated the knowledge of various employees of Optus and then attributed that knowledge to the corporate employer for the purpose of demonstrating negligence on the part of Optus: at [52].

2. Optus did not owe a duty of care directly to Mr Wright with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act: at [67]

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 considered.

3. Absent an express finding by the primary judge (and there was none) that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm: at [69].

4. It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff: at [96].

In respect of (iii) – (vi)

5.   In light of the findings on issues (i) and (ii), the other issues on appeal did not need to be considered.

Judgment

1. BASTEN JA: The respondent, Glenn Stuart Wright, claimed damages for psychological injury resulting from an attempt by a co-worker to kill him by throwing him off a balcony. (It is convenient to refer to Mr Wright as “the plaintiff”.) He sued the appellant, Optus Administration Pty Ltd (“Optus”), as the occupier of the premises and the entity conducting the training course on which he was engaged at the time he suffered injury. The trial judge, Campbell J, upheld the claim and awarded a substantial sum of damages. [1] Optus appealed against the finding of liability and with respect to aspects of the assessment of damages.

   1. Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 (“Wright”). Paragraph references are taken from Caselaw.

2. Because I have come to the view that Optus did not owe the plaintiff a duty to take care not to cause him mental harm, it is not necessary to address the issues as to damages raised on the appeal.

Background circumstances

3. On 15 March 2001, the plaintiff and another man, Nathaniel George, were undertaking a training course provided by Optus for people wishing to work at an Optus call centre. Their trainer was an Optus employee, Natalie Hedges.

4. Shortly before 15 March, Mr George formed a desire to kill someone and, the previous night, decided that he would kill the plaintiff. On the morning in question, at about 9.30am, Mr George left the training room on level 1 and went up to the balcony outside the recreation room on level 4 of the building. After a search, Ms Hedges located him and had a brief conversation. He said he wanted to speak to the plaintiff. Ms Hedges returned to level 1 and spoke with the plaintiff. The plaintiff said that he hardly knew Mr George but reluctantly went to the level 4 balcony to see if he could be of assistance. At that point, Mr George invited him to look at a car in the car park below and, whilst the respondent was holding onto the balcony rail, Mr George attempted to lift the plaintiff off his feet and throw him over the balcony and then hit him in the face. Another Optus employee, Paul Dee, who was standing nearby, intervened, restraining Mr George and allowing the plaintiff to escape.

5. The plaintiff suffered a blow to the head, but no compensable loss as a result. However, he subsequently developed a serious psychiatric condition identified as post-traumatic stress disorder. The evidence did not establish that the psychiatric condition was a consequence of any physical injury.

6. Because aspects of the reasoning of the trial judge turned on the knowledge of various employees of Optus, it is convenient to set out by way of background the evidence in that regard. (The findings based on it, so far as they went, will be addressed later.)

7. When Ms Hedges found Mr George on level 4, she was in the recreation room. He entered the room whilst she was there and she sought to engage him in conversation and take him back to the class. He was unresponsive. She described him in the following terms: [2]

“He appeared completely incoherent. I thought that he might have taken something so I looked at his eyes. His pupils appeared to look like pin points. I have seen people ‘out of it’ before and I thought that he may have been on drugs. I didn’t ask him as I thought it may not be appropriate.

Nathanial said, ‘Where’s Glenn’. He looked at me when he said this. He then looked up at the television and his body started swaying. I waved one of my hands in front of his eyes and said, ‘Nathaniel, can you tell me what’s wrong’. He didn’t acknowledge that I was waving in front of his face, he just kept swaying.”

2.    Statement, 15 March 2001, p 3.

8. Ms Hedges then asked three “girls” who came into the room to watch Mr George while she went to get help. She then spoke to Trevor Williams whom she described as “a team leader”, who in turn spoke to Paul Dee “another team leader.” [3] All three went back up to level 4 and spoke to Mr George. Ms Hedges then left to get the plaintiff, as Mr George was still asking for him and either Mr Williams or Mr Dee agreed that it “might be a good idea to go and get Glenn.”

   3.    Statement, p 4.

9. It was difficult to infer from this material that Ms Hedges had formed the view that Mr George was a danger to anyone other than, possibly, himself. Mr Williams described her as appearing to be “quite distraught” and said that, when she came to get him, she was “shaking and crying.” Consistently with her account, she had told Mr Williams, “I want some help. There is a team member on the roof and I think he is on drugs. He was sweating and I waved my hand in front of his eyes and he didn’t even know I was there.” [4] Mr Williams said he had spoken to Mr Dee, “obviously for my own safety, and basically, to have someone else there.” [5] Mr Williams confirmed that he had asked Ms Hedges to go and get the plaintiff saying, “I assumed that Glenn was a friend and may have been able to get Nathaniel to come inside.” [6] He and Mr Dee also tried to persuade Mr George to come inside.

   4.    Statement, Trevor Williams, 15 March 2001, pp 1-2.

   5.    Tcpt, pp 209-210.

   6.    Statement, p 3.

10. Mr Williams then left to make telephone calls to senior staff in Optus. When he returned, Mr George was pacing inside the recreation area with Mr Dee; Ms Hedges and the plaintiff had gone. [7] Mr Williams gave evidence. He was asked if he had had a conversation with Mr George and said: [8]

“I wouldn’t call it conversation. He was very quiet. I asked him did he want anything, you know, tea or coffee just to calm him down. He was very calm.”

7.    Statement, p 3.

8.    Tcpt, p 210(20).

11. Mr Williams also agreed that he had made an assumption that the plaintiff was a friend of Mr George and that had he known that he was not a friend he “certainly wouldn’t have sent for him.” After Ms Hedges had gone to get the plaintiff, Mr Williams said he spoke to Mr Dee and continued, apparently referring to Mr George: [9]

“He was very calm, quiet, and I felt it was okay to leave them alone, and go down and make sure the call centre manager was informed.”

9.    Tcpt, p 211(5).

12. In cross-examination as to why he had directed that the plaintiff be asked to come up to level 4, he stated: [10]

“Look, I just assumed he was a friend. I didn’t see any danger. He was very quiet, calm, and I just felt the situation was a case where I could hopefully use this other chap to get him inside.”

10.    Tcpt, p 213(30).

13. The cross-examination and answers continued:

“Q. When you went on to the roof and saw Nathaniel and had this conversation with him, is it correct to understand that you didn’t have any thought at that time that Nathaniel was going to jump or otherwise do himself some harm?

A. No, no, absolutely none whatsoever.

Q. And when you were on the roof and speaking to Nathaniel, did you have any fear for your own personal safety?

A. No, because I had Paul there, and like I said, he was very calm, very relaxed, just very quiet.”

14. 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. When he left, he asked Mr Dee if he would be alright. It should be inferred that neither of them anticipated serious trouble at that stage. Although the trial judge rejected Mr Williams’ statement that Mr George was “very calm”,[11] it is not possible to extract from Mr Williams’ evidence any understanding that Mr Williams anticipated, or should have anticipated that Mr George was dangerous. Nor did the trial judge make such a finding. Rather he found:[12]

“I infer that what Mr Williams meant when he used the phrase “very calm” is that he was no longer concerned about the prospect of George jumping from the balcony. Probably, he felt reassured because George had not attacked him. But George was still behaving unusually and the situation still required management. I find that is why he decided to leave the roof to report to more senior management, to obtain guidance about what to do. Mr Williams was obviously correct in his assessment that George did not constitute a risk of self-harm. After all he had been on the roof for quite some time with periods during which he was unsupervised. Had he wanted to jump he had had every opportunity. Even so, the situation was unresolved. George continued to refuse to come in off the balcony and Mr Williams took the precaution of leaving the fit Mr Dee to keep an eye on things after satisfying himself that Mr Dee was comfortable in that role….”

11. Wright at [46].

12. Wright at [49].

15. The fact that Mr Williams agreed that he would not have asked Ms Hedges to bring the plaintiff up if he had known he was “not a friend” did not establish that he had reason to believe that the plaintiff’s life might be put in peril, nor was that suggested to him. (Mr Williams was called by the plaintiff.)

16. Mr Dee had the most extensive conversation with Mr George. In his police statement Mr Dee noted that when he reached level 4, described as “the roof”, he saw “a male person pacing furiously up and down near the railing of the outside balcony. … I went over and stood next to the male because I was concerned about him.” [13] Mr Dee said that both he and Mr Williams walked beside him, trying to gain his attention. He said, [14] “I kept on talking to him but he wasn’t very responsive.” He did say that he was waiting for Glenn and wanted to see Glenn. Mr Dee asked who Glenn was and whether he was part of the Mr George’s team, continuing: [15]

“Nathaniel didn’t answer me and kept pacing. I noticed that he was fidgeting with his hands and seemed jittery. He wouldn’t make eye contact with me and he appeared to be in a trance like state.”

13.    Statement, Paul Dee, 15 March 2001, p 1.

14.    Statement, p 2.

15.    Statement, p 2.

17. Mr Dee was present when the incident occurred and it is convenient to set out the whole of his account as stated to police on the day of the incident: [16]

    16.    Statement, p 2-3.

“I then saw a male person who I now know to be Glen walk outside onto the balcony. He went up to Nathaniel.

Glen said, ‘What’s wrong?’

I heard Nathaniel grumble something to Glen, but I couldn’t hear what he said. I saw Nathaniel motion to Glen to talk in private further around the balcony, and they both walked about 15 metres away from me. I saw them have a conversation and I walked closer towards them so I could see, because I was concerned about Nathaniel’s well being. Nathaniel had his back towards me, and Glen was facing me. Nathaniel started yelling at Glen. I motioned to Glen with an ‘ok?’ hand signal to make sure that he was alright.

I said, ‘Are you okay?’

Glen said, ‘Yeah I’m ok.’

I walked closer towards them and heard Nathaniel ask Glen something.

Nathaniel said, ‘Do you like the view from up here?’

Glen did not respond with anything but looked confused. I then saw Nathaniel attempt to pick Glen up. He crouched down and placed his arms underneath Glen’s arms and around his waist. Nathaniel started to lift Glen off the ground and I saw Glen step backwards sharply and try to push Nathaniel away from him. Nathaniel still had a hold of Glen and was trying to punch him with his right hand. There was a bit of a scuffle and I saw Nathaniel’s right arm swing in a right cross and make contact with the left side of Glen’s face, near his left eye. I quickly rushed in to break the two up. I grabbed Nathaniel by his shirt and reefed him away from Glen. I bear hugged him to restrain and pacify him. Nathaniel struggled and tried to break away. He was throwing his arms and his legs around and was yelling out.

Nathaniel said, ‘I’ll kill him.’”

18. This evidence did not provide a basis for concluding that, before the incident occurred, Mr Dee considered that Mr George was dangerous in the sense that he might try to kill the plaintiff. His conduct was clearly unexpected, or, to use the language of the trial judge, “aberrant”. Accepting that Mr George appeared to be affected by drugs fell well short of actual foresight that he might be homicidal.

19. Although it cannot affect the prospective (pre-attack) assessment of the risk of harm to the plaintiff, it is convenient to set out the substance of Mr George’s statements to Mr Dee after the attack, as recorded in Mr Dee’s statement: [17]

    17.    Statement, pp 3-4.

“For the next 15 minutes I just watched Nathaniel pace up and down the floor. I wanted to give him time to cool off and talk to him about what had happened.

I said, ‘Tell me what happened? Did Glen do anything to you?’

Nathaniel said, ‘Why the fuck did you stop me?’

…

I said, ‘How do you get to work?’

He said, ‘By train. I planned this from yesterday. I thought about it all last night and only got about 3 hours sleep. I wasn’t going to throw him under the train or anything. I just wanted to wait for my break and throw him over the balcony. I just wanted to kill him. I had it all planned. I waited for my break at ten o’clock and left a note downstairs for someone to tell Glen to meet me on the roof. I wanted to ask him if he liked the view and get him close to the rail. I wanted to throw him over.’

During this time Nathaniel kept motioning that he was grabbing something and heaving it over his shoulder.

I said, ‘Why? What has he done to you? Do you hate him?’

He said, ‘No. He’s on himself. I wanted to ask him why he’s a faggot. Why did you stop me?’

…

I said, ‘You’ll be thankful tomorrow when you realise what the consequences would of [sic] been.’

He said, ‘I don’t care. I’m prepared to deal with the consequences. They might give me ten years. I just want to know what it’s like to kill someone. My heart has been going. It’s a rush. I wanted to see him lying on the ground dead. …”

20. Mr Dee gave evidence in which he described Mr George as around 20 years of age, of slight build and no taller than five foot nine. [18] Mr Dee said that “Glen was slightly taller … probably six foot, but he certainly was broader and larger than Nathaniel.” He also said that he, Mr Dee, weighed around 80 kilos in March 2001, was five foot ten and considered himself reasonably fit. His police statement was tendered and he was not cross-examined by counsel for the plaintiff.

    18.    Tcpt, p 239(15).

21. The plaintiff, in a statement dated 29 May 2013 (that is, 12 years after the incident), asserted that Ms Hedges had said to him, “Nathaniel is up on the fourth floor and appears to be psychotic or on drugs. He is asking for you, do you know what this is about?” [19] He used similar words at the trial in his examination in chief. [20]

    19.    Plaintiff’s further evidentiary statement, 29 May 2013, par 35.

    20.    Tcpt, p 30(45).

22. The plaintiff was cross-examined on the basis that his initial statement to police in 2001 had recorded Ms Hedges saying to him when she approached him, “[h]e’s up on the roof, he’s lost it and he’s asking for you, is he on drugs?” [21] It was suggested to the plaintiff in cross-examination that it had first occurred to him in around 2010 (that is, after the commencement of the proceedings), on reading his 2001 police statement, that Ms Hedges had used the word “psychotic”. [22] The plaintiff asserted in cross-examination that he had a recollection of Ms Hedges using that language and accounted for his failure to include that statement in the course of his interview with the police four days after the event as due to “shock”. [23]

    21.    Police Statement, Glenn Stuart Wright, 19 March 2001, par 12; Tcpt, pp 55, 64-65.

    22.    Tcpt, p 55(40); the plaintiff’s statement of 2/9/10 was not tendered, but became MFI 2: Tcpt, p 56(5).

    23.    Tcpt, p 55(45).

23. On one view, nothing much turns on this language: in common parlance, “psychosis” refers to a degree of mental derangement, but not necessarily involving a homicidal tendency. Although it was Ms Hedges who was said by the plaintiff to have used this language in talking to him, she did not use this language in her statement made on the day of the attack. If it were necessary to determine whether or not Ms Hedges did use the word “psychotic” it might be necessary to order a retrial. However, the possible use by Ms Hedges of that word cannot be determinative of the liability of Optus. The plaintiff could not succeed if none of Ms Hedges, Mr Williams and Mr Dee was found to have been negligent. If she used the word, it was only to the plaintiff, not to Mr Williams or Mr Dee.

The challenges on appeal

24. With respect to the notice of appeal, it is sufficient to identify the critical grounds with respect to liability, which challenged findings made by the trial judge: that Optus owed the plaintiff a relevant duty of care (ground 1), in describing the content of the duty (ground 2), and that Optus had breached that duty (ground 3). Further, error was alleged in finding that “the events” were reasonably foreseeable (ground 6). Ground 7 should be set out in full as it reflects a level of uncertainty as to the findings made by the trial judge:

“7.   The trial judge erred in finding (if he did) that there was negligence on the part of Mr Williams or Ms Hedges, and further erred in finding (if he did) that Optus should or could be made liable for any negligence on the part of Mr Williams or Ms Hedges.”

25. The respondent filed a notice of contention containing three grounds. The first stated that the trial judge “should have had regard to the expert evidence in finding that the appellant breached its duty of care.” The drafting was inapt and was not clarified by submissions. First, it did not identify a ground upon which the decision of the trial court should have been affirmed. It did not, for example, identify a finding which should have been made based on specific evidence. Secondly, the trial judge discussed the expert evidence in some detail. [24] That discussion occurred before a heading “Was the risk of personal injury including mental harm reasonably foreseeable?” and before a final passage setting out findings as to liability and breach; it therefore appears to have been considered in relation to breach. It is difficult to make much of ground 1 in the notice of contention. In any event it was not directed to the existence of a duty of care.

    24.    Wright at [93]-[109].

26. Ground 2 in the notice of contention sought a finding that Ms Hedges “directed” the plaintiff to attend on level 4. Whether ground 2 was necessary is debatable: the judge described Optus as putting the plaintiff “in harm’s way”, which suggested a form of direction. If it related to duty, it is not clear how.

27. Ground 3 in the notice of contention mirrored the uncertainty in ground 7 of the notice of appeal, stating that the judge erred “in finding, if he did so find, that the [plaintiff] could not succeed on the basis of vicarious liability.”

28. As with ground 1, ground 3 failed to express a basis on which the judgment below should have been affirmed. If it had sought a finding of vicarious liability, it should have specified which employee (or employees) of Optus was (or were) negligent and in what respect. There was no express statement in the judgment that a finding of vicarious liability “could not” be made.

Duty of care

(a)   nature of injury

29. In 2009, some eight years after the attack, the plaintiff (through a tutor) commenced proceedings in the Supreme Court seeking damages for personal injury from Optus. The particulars of injury identified in the pleadings were nervous shock, post-traumatic stress disorder, anxiety, depression, social phobia and bruising to his head.

30. A significant issue at trial (and on appeal), was the scope and nature of the duty of care owed to the plaintiff. A critical element in determining the existence of any duty was the nature of the injury for which the plaintiff claimed damages. That is because the Civil Liability Act 2002 (NSW) imposes restrictions on the circumstances in which a person owes a duty of care to another with respect to “mental harm”. [25] The term “mental harm” is defined in Pt 3 of the Civil Liability Act to mean “impairment of a person’s mental condition.”[26] Section 27 also defines the expression “pure mental harm” (being “mental harm other than consequential mental harm”) and “consequential mental harm” (being “mental harm that is a consequence of a personal injury of any other kind”).

    25. Civil Liability Act, s 32.

    26. All definitions in Civil Liability Act, s 27.

31. Although the trial judge accepted that the incident involved “a physical attack upon Mr Wright” and that he “suffered physical injuries from the blows struck by George”,[27] the damages claimed and awarded related solely to his psychiatric condition. In identifying the cause of this condition the trial judge said:[28]

“Those blows and his injuries are part and parcel of the incident. But I find it difficult to accept that the PTSD is merely consequential upon those physical injuries. Rather, in my judgment, that psychiatric condition is a case of pure mental harm being an independent injury arising out of the fear for his life suffered by Mr Wright as a result of George assaulting him and attempting to throw him off the balcony.”

That finding was not challenged on appeal. Although the case was thus one of pure mental harm and not consequential mental harm, that has limited relevance. [29]

27. Wright at [83].

28. Wright at [83].

29. But see Civil Liability Act, ss 30, 31 and 32(2). It is true that the judge said at one point that s 32(3), dealing with consequential mental harm, was relevant, but it was not applied and the reference appears to have been a mistake.

(b)   findings as to duty not to cause mental harm

32. A difficulty in identifying the duty said to have been owed by Optus to the plaintiff flows from both the manner of pleading the claim and the manner in which it was developed at trial. The amended statement of claim alleged negligence on the part of Optus, the particulars being directed to the lack of adequate systems and training involving incidents of the kind which occurred on 15 March 2001. As will be explained, this basis of liability was not accepted at trial. It is convenient to identify the statutory scheme within which critical findings were made.

33. Part 3 of the Civil Liability Act, entitled “Mental harm”, which includes s 32, was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). Although the incident giving rise to the injury occurred before the commencement of those amendments, they extend to civil liability arising before their commencement, in proceedings commenced thereafter. [30] (This case was commenced in 2009.) As the trial judge accepted, s 32 therefore governed the present proceedings.

    30. Civil Liability Act, Sch 1, Pt 3, cl 6(1).

34. Section 32 is in the following terms:

32   Mental harm—duty of care

(1)   A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2)   For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a)   whether or not the mental harm was suffered as the result of a sudden shock,

(b)   whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c)   the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d)   whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3)   For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4)   This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

35. This provision requires a different approach from that arising under general law principles. Where there is a pre-existing relationship, as with a contractual relationship of employment, the general law imposes a single comprehensive duty and not separate duties to protect against physical harm and to protect against psychiatric injury. [31] The same principle applies as between medical practitioner and patient, the law imposing a “single comprehensive duty” in relation to the provision of professional advice and treatment. [32]

    31. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [140] (McHugh J).

    32. Rogers v Whitaker (1992) 175 CLR 479 at 489 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); Wallace v Kam (2012) 250 CLR 375; [2013] HCA 19 at [8] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

36. A general law principle is, however, subject to statutory variation. One effect of s 32 of the Civil Liability Act is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that “a person of normal fortitude” might (b) “in the circumstances of the case” suffer (c) “a recognised psychiatric illness”, if reasonable care were not taken.

37. The trial judge dealt with the question of duty by first positing the existence of a “general” duty of care owed by Optus to the plaintiff, and then considering the effect of s 32. Under the heading “Content of the duty owed”, the judge stated:[33]

“Subject to the two following points, Optus owed Mr Wright a duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding him from unreasonable risks in the methods by which the work was to be undertaken, extending to taking reasonable care to protect him from the criminal acts of others in the workplace. In the specific circumstances which arose on 15 March 2001 that duty involved the exercise of reasonable care in devising and instituting a system for managing the aberrant behaviour of George so as to safeguard Mr Wright, and other persons on the premises to perform work, from any foreseeable, not insignificant risk that George may assault him.”

33. Wright at [77].

38. The two qualifications referred to in the opening words of this passage were (a) that “while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care”; [34] and (b) the application of Pt 3 of the Civil Liability Act.[35] It is the second matter, to which the trial judge then turned, which requires attention here.

    34. Wright at [79], quoting Gummow J in Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [49] (emphasis by Gummow J).

    35. Wright at [80].

39. Although such a two stage process was not necessarily erroneous, it had the potential to miscarry. Thus, while it was no doubt true, as the trial judge held, that Optus owed a general duty of care to the plaintiff, even though not an employee of Optus, that conclusion was of limited relevance. That conclusion was reached by applying principles from Modbury Triangle Shopping Centre Pty Ltd v Anzil. [36] The trial judge referred to the following statement of Gleeson CJ in Modbury Triangle: [37]

“Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee.”

36. (2000) 205 CLR 254; [2000] HCA 61.

37.    Modbury Triangle at [26]; Wright at [70]; references in original omitted and not including emphasis added by the trial judge.

40. The trial judge also referred to a passage from the judgment of Hayne J in Modbury Triangle: [38]

“Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm's way. The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken.

In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party.”

38.    Modbury Triangle at [110]-[111]; Wright at [70]; references in original omitted and not including emphasis added by the trial judge.

41. Consideration of a “general” duty may have been significant if the conclusion were that no such duty was owed; s 32 is stated in the negative and could be seen as imposing a conditional qualification on a broader category of circumstances where a duty might be owed. However, the question which s 32(1) requires to be addressed focuses upon “the circumstances of the case”. The trial judge was undoubtedly alert to that factor and, in reaching a final conclusion on the question of duty, did indeed focus upon the circumstances of the case; however, by reference to the general duty, the trial judge identified two further aspects of the duty, stating:[39]

“Moreover, Optus’ duty was personal or non-delegable, and in those circumstances Mr Williams’ acts and omissions may be attributed to it without necessary reliance on the doctrine of vicarious liability: TNT v Christie at [47].”

39. Wright at [116].

42. It is necessary to consider both parts of this statement and the reliance upon the judgment of Mason P in TNT Australia Pty Ltd v Christie. [40] In Christie at [46], Mason P set out a lengthy extract from his own judgment in Lepore v State of New South Wales. [41] In Lepore Mason P stated:

“[32]   Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken …. [42]

…

[43]   … However, the concept extends to negligence by employees, because it may be invoked where the fault is, or might be, that of an employee whether or not acting in the course of employment. Many of the hospital cases are in this category, because there is uncertainty whether the personal fault lay with an employee (eg a nurse) or an independent contractor (eg a visiting specialist surgeon).”

40. (2003) 65 NSWLR 1; [2003] NSWCA 47 at [47].

41. (2001) 52 NSWLR 420; [2001] NSWCA 112.

42. Reference was included to Kondis v State Transport Authority (1984) 154 CLR 672 at 686 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.

43. Following the reference to Lepore, Mason P concluded in Christie at [47]:

“The authorities cited in par [32] of this extract demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff’s injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.”

44. Although Mason P dismissed the reasoning in NSW v Lepore in the High Court as not affecting his approach in this Court,[43] subsequent authority casts doubt on the justification for continued use of the term “non-delegable”. [44] Importantly for present purposes, as explained by Gleeson CJ in NSW v Lepore in the High Court, the purpose and effect of characterising a duty of care as either “non-delegable” or “personal” is “not always entirely clear”. [45] The Chief Justice stated:[46]

“In the context of employment, for example, a duty to take reasonable care for the safety of workers cannot be discharged by delegation; but delegation does not transform it into a duty to keep workers free from all harm. A duty to see that reasonable care is taken for the safety of workers is different from a duty to preserve them from harm.”

43. Christie at [46]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.

44. Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 at [23]-[27] (Gleeson CJ), [155]-[156] (Hayne J) and [187]-[188] (Callinan J); Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 at [64] (Davies, Gleeson and Edelman JJ).

45. NSW v Lepore at [19].

46. NSW v Lepore at [22].

45. Two points arise from this discussion which are critical in the present case. First, as the reference to the acts and omissions of Mr Williams indicated, the judge found liability in Optus based on the conduct of its employee. As there was no question of Mr Williams acting outside the scope of his employment, or having any immunity from liability, it is difficult to be sure what purpose was served in distinguishing the “personal or non-delegable” duty of Optus from its vicarious liability. Indeed, it follows from the passage in Christie at [47] and the reasoning of Gleeson CJ in NSW v Lepore that there must have been “damage caused by lack of reasonable care” by some person, in this case Mr Williams; there is no duty to keep workers free from all harm. It will be necessary to return to that issue in due course.

46. Secondly, as to foreseeability, after referring to the elements of s 32 and the need to determine the question of duty by reference to “the circumstances of the case”, the judge noted the following submission by Optus:[47]

“Optus relied very substantially on what might be regarded as the generally innocuous nature of call-centre work, the unlikelihood of violence occurring between clerical workers, the lack of knowledge, actual or constructive on the part of Optus of the character of George and the unpredictability of the conduct he in fact engaged in.”

47. Wright at [86].

47. Accepting that foreseeability must be decided as a matter of foresight and not hindsight, and “without knowledge of the precise circumstances in which the harm was inflicted, and as though it had not occurred”,[48] the trial judge continued: [49]

“Having said that, the approach urged by Optus is flawed in my judgment because it fails to focus upon the circumstances of the events which unfolded on the roof, all of which were within the direct knowledge of Optus. Moreover, the pre-existing relationship between Optus and Mr Wright itself gave rise to a duty of care; it was analogous to the employment relationship which is an established category of duty covering mental harm, where such harm is reasonably foreseeable: Mt Isa Mines Ltd v Pusey. [50] Assuming that it was foreseeable in the circumstances pertaining on the roof that George may assault Mr Wright when he was brought to him, a question I will consider in detail when dealing with breach, I am satisfied that the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. In arriving at this conclusion I have taken into account the evidence of Ms Hedges of her observations of Mr Wright following George’s attack.”

48. Wright at [87].

49.    Wright at [88], emphasis added.

50. (1970) 125 CLR 383.

48. There are two basic problems with this reasoning which may result from a combination of the issues identified above. The first is the finding as to a general duty before applying the terms of s 32, which require attention to “the circumstances of the case”. The second is the characterisation of the general duty as personal or non-delegable. The result was an attribution of knowledge to Optus arising from the combined knowledge of its various employees. However, until that knowledge was combined (and attributed to Optus) a duty of care was not established. That is clear from the following passage in the reasoning of the trial judge, albeit occurring in the discussion of breach, rather than the existence of the duty:[51]

“Accurate identification of the risk requires the adoption of the appropriate level of abstraction to the circumstances of the case. The risk here is not an assessment of the risk of injury to an employee from the criminal acts of third parties on the premises. Rather, the risk is the risk of George inflicting personal injury, including mental harm on Mr Wright in the circumstances actually known to Optus through its employees on 15 March 2001 before Mr Wright was requested to attend the roof to speak to George. It would amount to the adoption of a level of abstraction all too general in nature to pose the question ‘what is the chance of one call centre trainee assaulting another’, stripped of the circumstances actually occurring on 15 March 2001 before the assault took place.”

51. Wright at [91].

49. There is an important elision in the reasoning at this point. If the liability of Optus were truly vicarious (whether described as vicarious or as resulting from a non-delegable duty) then there must have been negligence on the part of its employee. What the employee ought or ought not to have done may well depend upon the circumstances of which he or she was, or ought to have been, aware. The negligent conduct of the employee may then be attributed to Optus. However, that is not what happened here. [52] On the other hand, if Optus itself had a duty to act in a certain way, that must depend upon the reasonable foreseeability of the circumstances which arose on the morning of 15 March 2001 on level 4 of its building, at some earlier point in time. That level of foresight is not to be identified by attributing to it knowledge (which it did not actually have) which arose in the course of the events giving rise to the alleged breach of duty. Nor is there authority for the proposition that knowledge in different employees (operating below the level of senior management) can be accumulated and attributed to the company.

    52.    Wright at [113], extracted below.

50. The issue of attribution of knowledge was not explicitly addressed in the judgment below. However, attribution of conduct was addressed. That discussion occurred in the following context:[53]

“I am conscious that no case is advanced against Optus in terms of vicarious liability for the negligence of Mr Williams. That is to say, such a case has not been pleaded and that point is taken by Counsel for Optus. The breach question must be considered from the standpoint of a reasonable person in the position of Optus. … As Mr Williams appears to have been reporting to Ms Taylor his conduct arguably cannot be attributed directly to Optus: Tesco Supermarkets Ltd v Nattrass. [54] Even so, in taking the steps he took to manage the situation, he was acting within the scope of his employment and with the authority of his superiors who had left the management of the situation to him. He was Optus’ man on the ground for dealing with this matter.”

53. Wright at [113].

54. [1972] AC 153 at [171] (Lord Reid) and [187] (Viscount Dilhorne).

51. After noting the discussion of principles of attribution by Spigelman CJ in Director General, Department of Education and Training v MT,[55] the judge continued:[56]

“Spigelman CJ made reference to Hollis v Vabu Pty Ltd. [57] This passage refers to the concept of an employer’s enterprise creating a risk that produces a tortious act for which the employer must bear responsibility.”[58]

55. (2006) 67 NSWLR 237; [2006] NSWCA 270.

56. Wright at [116].

57. (2001) 207 CLR 21; [2001] HCA 44 at [42].

58. The judge then continued with the passage set out at [41] above.

52. None of this authority supports the proposition that an aggregation of knowledge of various employees is to be attributed to the corporate employer for the purpose of demonstrating negligence on its part. The suggestion that Mr Williams was Optus’ “man on the ground” does not demonstrate that, for this purpose his knowledge was that of the company: rather, his knowledge was directly relevant to establishing negligence on his part for which the company might be vicariously liable. This was the basis of liability eschewed by the plaintiff. (The reason for not asserting liability on that basis may have been because Mr Williams did not have sufficient knowledge to support a finding that he was negligent.)

53. The reliance on an aggregation of knowledge was confirmed when the trial judge set out, in dealing with the question of breach, a list of relevant elements of knowledge, commencing:[59]

“Turning to s 5B(1)(a) [of the Civil Liability Act] Optus knew, or ought to have known, through the actual knowledge possessed by its employees, relevantly Ms Hedges and Mr Williams ….”

59. Wright at [118].

(c)   application of s 32

54. Section 32 states that there is no duty of care not to cause mental harm, unless the composite criterion specified in that provision is satisfied. Because it is necessary to assess whether a person of normal fortitude would suffer a recognised psychiatric illness “in the circumstances of the case”, it may be necessary to specify the critical event with a degree of precision. For example, a course of conduct involving bullying or abuse directed at an individual employee may satisfy the criterion, whereas an individual instance of abuse in an otherwise harmonious workplace may not. Further, it is implicit in the expression of the criterion that the circumstances which might lead a person of normal fortitude to suffer a psychiatric illness must themselves be reasonably foreseeable. Before turning to the circumstances of the present case, reference should be made to the further provision as to what is encompassed by the phrase “the circumstances of the case”, identified in s 32(2).

55. Part 3 also requires that, in a case of pure mental harm, a distinction be drawn between the harm which arises in connection with a third person (the victim) being killed, injured or put in peril by the act or omission of the defendant (s 30(1)) and the situation where mental harm arises from an act or omission of the defendant directed against the plaintiff. Section 30 imposes limits on recovery in circumstances where the mental harm results from mental or nervous shock suffered by the plaintiff, caused by harm or threat of harm to the victim. That was not this case: the respondent suffered pure mental harm as a result of an attack by a third party and, as he submitted, the negligent conduct of Optus, which either put him in the way of the attack, or failed to prevent him being subjected to the attack. It follows that s 30 has no application in this case. The critical provision is s 32 which applies to both pure mental harm and consequential mental harm and to harm caused directly to the plaintiff and harm caused to a third party victim which indirectly affects the plaintiff.

56. The terms of Part 3 generally and s 32 in particular were addressed by the High Court in Wicks v State Rail Authority (NSW). [60] However, the plaintiffs in that case were police officers who had attended a train crash and undertaken rescue operations; their claims for damages for mental harm arose in connection with others being killed or injured. The defendant was the operator of the rail service. With respect to s 32, the Court noted that the provision operated as a necessary condition for a finding that the defendant owed a duty of care, without setting out other circumstances which might be relevant to the existence of such a duty. [61] While s 32(1) required that the negative condition be assessed according to “the circumstances of the case”, the High Court further noted that the circumstances identified in s 32(2) were matters to be taken into account and not themselves necessary conditions of the existence of a duty. [62]

    60. (2010) 241 CLR 60; [2010] HCA 22.

    61. Wicks at [22].

    62.    Wicks at [23] and [27]-[29].

57. In the present case, the matters set out in s 32(2)(b) and (c) appear to relate only to cases where there has been harm to a third party victim; the matters set out in pars (a) and (d) are relevant to the assessment in this case. It was common ground that any assessment of the harm suffered by the respondent required consideration of the pre-existing relationship between him and Optus, in accordance with par (d).

58. With respect to par (a), the Court in Wicks explained the term “sudden shock” as referring “to an event or a cause.”[63] As it is not disputed that the respondent suffered mental harm as a result of the attack on him by Mr George, it does not matter whether or not the attack can properly be described as a “sudden shock” though the description may be available. The fact of the attack is undoubtedly a central circumstance of the case which must be taken into account in determining the existence of a duty. The elements of sudden shock and direct perception, contained in pars (a) and (b) of s 32(2) have at times been used as control devices limiting the availability of recovery for mental harm. Both applied in cases involving a third party victim. Their role as necessary requirements of liability was rejected by the High Court in Annetts v Australian Stations Pty Ltd, heard with Tame. [64] They add nothing to the analysis of the circumstances of the present case.

    63. Wicks at [30].

    64.    Tame at [33] and [41] (Gleeson CJ), [65]-[66] (Gaudron J), [187]-[189] and [213] (Gummow and Kirby JJ).

59. The requirement that a reasonable person ought to have foreseen that a person of normal fortitude (that is mental or emotional fortitude), might suffer a psychiatric illness if reasonable care were not taken is an important factor to be considered. That is because different circumstances will give rise to different possible levels of mental harm in persons of normal fortitude: the nature of the possible consequences of the defendant’s actions will therefore be important.

60. This exercise was not undertaken in considering the question of duty; it was, however, addressed in considering breach. Thus the trial judge stated:[65]

“Accurate identification of the risk requires the adoption of the appropriate level of abstraction to the circumstances of the case. The risk here is not an assessment of the risk of injury to an employee from the criminal acts of third parties on the premises. Rather, the risk is the risk of George inflicting personal injury, including mental harm on Mr Wright in the circumstances actually known to Optus through its employees on 15 March 2001 before Mr Wright was requested to attend the roof to speak to George. It would amount to the adoption of a level of abstraction all too general in nature to pose the question ‘what is the chance of one call centre trainee assaulting another’, stripped of the circumstances actually occurring on 15 March 2001 before the assault took place.”

65. Wright at [91].

61. With respect, that assessment may have been relevant to any question of negligence on the part of an employee, such as Mr Williams; it could only be relevant to the direct duty owed by Optus if it ought reasonably to have foreseen those particular circumstances. Although the judge identified, early in his analysis, a duty which required “establishing, maintaining and enforcing a safe system of work”,[66] the passage last quoted is consistent with a finding that no duty which satisfied s 32 arose in the circumstances of the case, or perhaps, as the latter passage came under the heading “Did Optus breach the duty owed”, to the extent that there was a duty, it was not breached.

    66. Wright at [77], in the passage set out at [37] above.

62. Furthermore, it would not have been sufficient to ask “what is the chance of one call-centre trainee assaulting another”, but rather it would be necessary to ask “was it 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 as to lead to a psychiatric illness in a person of normal fortitude?”

63. In this context, the trial judge referred to the evidence of a number of experts, including a psychiatrist, Dr Roberts, called by Optus, concluding:[67]

“I can certainly accept that Optus in March 2001 was a large trading company having a national business and employing, whether directly, as independent contractors, or otherwise, large numbers of people. Such an employer, as opposed to a small business, might be expected to have greater access to expert consultants in devising its systems of work. However that may be, the situation that developed relating to George’s aberrant behaviour was, to say the least, on the evidence, unusual. It called for a relatively immediate response; it had to be dealt with ‘now’. That is how Mr Williams, who seemed to be in charge, perceived it. It is apparent that he consulted others within the company. It seems unrealistic to suggest, or expect, that he should, or would, have gone back to his desk to thumb through some manual to work out how to manage the situation. However one analyses the case otherwise, that contention, in my judgment, falls short of the standard of reasonableness.”

67. Wright at [95].

64. That is an indication that, duty aside, there was no negligence on the part of Optus, based on the foreseeability of the actual events which occurred. Indeed, liability based on such general foreseeability, which might have required the development of procedures and protocols to address the risks, was expressly rejected:[68]

“Section 5B applies to cases where the negligence is said to consist in the failure to take precautions against a risk of harm…. It is also important to focus on the suggested precautions given that the plaintiff carries the onus of proof. In the case at hand, they are:

(a)   adopting a policy for dealing with potential violence in the workplace that was made known to all staff and available to them in training manuals;

(b)   removing George from the premises; it was said either by way of security or police involvement; and finally

(c)   not putting Mr Wright in harms way by exposing him to George’s aberrant behaviour on the roof.

I have already rejected the idea that adoption of a policy of a publication of a training manual is reasonable and I will not deal with it further. I will deal with the remaining two options when I consider s 5B(1)(c).”

68. Wright at [117].

65. The trial judge then referred to the various matters actually known to Ms Hedges and Mr Williams, including that Mr George “had absented himself from his training room where he was supposed to be; taken himself to the roof where he was not supposed to be at that time; was behaving in an aberrant manner, pacing and acting, in lay terms, as though he was psychotic or on drugs…”. [69]

    69. Wright at [118].

66. It appears that an assumption was made about what Ms Hedges may have meant when describing Mr George as possibly “psychotic” or on drugs and as treating Ms Hedges as someone who knew or ought to have known that Mr George was dangerous, in circumstances where no such proposition was put to Mr Dee or Mr Williams, who spoke to Mr George before the incident and gave evidence. On this basis, finding that reasonable care required a combination of (b) and (c) above, the trial judge concluded:[70]

“That is to say, George should have been removed from the premises, and until that was done no one, and especially not Mr Wright, the person for whom he had been asking, the only person in whom he expressed an interest, should have been permitted to go near him whilst he remained in a place of possible danger on the roof.”

70. Wright at [127].

(d)   conclusions as to direct duty

67. In order to identify a duty owed by Optus directly to the plaintiff, it was necessary to make the following findings:

1. it was reasonably foreseeable that Optus’ staff or persons undergoing training on Optus’ premises, being persons of normal fortitude, might encounter other staff or trainees exhibiting aberrant behaviour of such severity as to cause a recognised psychiatric illness, absent the infliction of another injury;

2. that being foreseeable, reasonable care required that Optus give instruction and training to all staff that, if such behaviour were encountered, they should not approach the person, should instruct a superior as to their observations, and not allow other staff members to approach the person, until police arrived.

68. Findings (a) and (b) were rejected and were not in terms sought from this Court. In any event, based on the submissions made to this Court, no basis was revealed on which to make such findings. Accordingly, the plaintiff did not establish that Optus owed him a duty of care with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act.

69. The critical step in determining the scope or content of any duty owed by Optus to the plaintiff required identification of the risk of particular events which might give rise to mental harm. In a case where the mental harm resulted from an attack by a third party upon the plaintiff, it was important to identify with care the nature of the conduct which the appellant should have foreseen.

70. 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 was an essential step in determining whether Optus owed the plaintiff a duty of care with respect to the mental harm which he suffered at the hands of Mr George. Arguably, it was only an assault of that severity, intended to put his life in peril, which Optus ought to have foreseen might cause a person of normal fortitude to suffer a psychiatric illness. Absent a finding as to the foreseeability of such conduct, Optus was under no relevant duty to take reasonable care.

71. Direct liability appears to have been upheld on a different basis, namely that:

1. Given the combined knowledge of Optus staff members as to the aberrant behaviour of Mr George on 15 March 2001 and his wish to speak to the plaintiff, who denied any prior relationship with him, Optus ought reasonably have foreseen that a person such as the plaintiff, being a person of normal fortitude, who approached Mr George might be assaulted and suffer a recognised psychiatric illness; and

2. Optus therefore owed a duty of care to all persons under its control or direction not to direct, request or permit such persons to approach Mr George until police had taken control of the situation.

72. With respect to these elements, no finding was made sufficient to establish negligence on the part of any specific employee of Optus, for which Optus might be vicariously liable. There is no basis in law which would allow a finding that Optus owed a duty of care to the plaintiff resulting from an aggregation of the knowledge of different (non-supervisory) employees. Even if a duty could arise on that basis, Optus would not be liable for the conduct of employees who were not themselves negligent, a point which will be explained further in dealing with vicarious liability.

Contention (1) – the expert evidence

73. There is little to be made of the contention that the trial judge should have had regard to the expert evidence in finding breach of duty: he did so. The discussion of breach commenced at [89] and was followed almost immediately by a discussion of the expert evidence of a psychiatrist, Dr Roberts, an ergonomist trained as a psychologist, Dr Caponecchia, and another ergonomist, Ms Armour.

74. Nothing was said in the course of oral submissions on the appeal which suggested that the evidence of the ergonomists was of any assistance with respect to the question of the duty of care. However, some weight was placed on the evidence of Dr Roberts, which requires reference to the manner in which the plaintiff’s case was addressed on the appeal. In essence, senior counsel for the respondent/plaintiff supported the approach of the trial judge in relation to duty. With a degree of hyperbole, he asserted that “[t]his is a case about foreseeability” and, further, that “if we can establish all of the elements of s 5B we win”. [71] He described the duty in the following terms: [72]

“The duty we say can be couched in a number of ways but essentially it’s a duty to take reasonable care not to expose the plaintiff to unnecessary risk of injury or not to put the plaintiff as a person in the position of an employee in harm’s way.”

71.    Tcpt, 29/03/16, p 28(25) and (38).

72.    Tcpt, p 30(15).

75. Turning to risk, counsel accepted that “if the risk of harm is determined only with reference to what happened, that is, that Mr George tried to kill the plaintiff, if that is the description of the risk of harm it is very difficult in any case because no one would have known that he was about to try and kill him.” [73] The respondent’s preferred identification of the risk of harm was “the risk of a person suffering physical or mental harm as a result of exposure to Mr George.” [74]

    73.    Tcpt, p 33(25).

    74.    Tcpt, p 33(43); see also p 41(25).

76. The plaintiff thus accepted that the precise circumstances which arose on the morning of 15 March 2001 were not reasonably foreseeable by Optus. The plaintiff relied on the more general proposition that, at least by the time Mr Williams agreed with Ms Hedges’ suggestion that she ask the plaintiff to come up and speak to Mr George, and Ms Hedges had spoken to the plaintiff and asked him to go level 4, the possibility of physical or mental harm was reasonably foreseeable. Recognising that that description might not satisfy s 32 of the Civil Liability Act, counsel further submitted that any physical injury might result in a psychiatric illness. For that purpose, he relied on the evidence of Dr Roberts. To what extent a finding of duty may properly be based on expert evidence was not discussed and may be put to one side for present purposes. Contrary to the notice of contention, the trial judge gave careful consideration to Dr Roberts’ evidence, taking into account both of his reports and his cross-examination. [75]

    75.    Wright at [96]-[104].

77. Dr Roberts’ opinion as to foreseeability was expressed in the following terms:[76]

“The concern arising from [George’s] behaviour on the roof namely of him appearing drug affected occurred only moments before the attack … upon Mr Wright and even assuming that Mr George was drug affected to extrapolate from that circumstances [sic] that an attack would occur on Mr Wright would not have been able to be an extrapolation made either by a lay or non-lay (psychiatrist/psychologist), who observed such behaviour.

I do not consider therefore it is on psychiatric grounds tenable to argue that Mr George’s attack upon Mr Glen Wright could have been foreseen or prevented (Exhibit 1D5) report 29th October 2010.”

76. Wright at [97].

78. The trial judge noted that Dr Roberts had available to him more information than “any of the active participants on the roof on 15 March 2001” and information which “was not available to Optus more generally.”[77] However, the opinion was not excluded. The judge also discounted Dr Roberts’ reference to behaviour which took place “only moments before the attack” or, as he said in his oral testimony “in the moments prior to his attack”. [78] The judge found that the aberrant behaviour took place over a period which was “perhaps as long as one hour before the attack on Mr Wright”,[79] although he had earlier found that “[t]he interaction between Ms Hedges and Mr Wright on the ground floor could not have taken very long because when they arrived on the roof Mr Williams had not yet departed to report the situation to his superiors.”[80]

    77. Wright at [99].

    78.    Tcpt, p 281(50).

    79. Wright at [99].

    80. Wright at [60].

79. The trial judge then continued:[81]

    81. Wright at [100].

“Moreover, Dr Roberts was concerned with the predictability of George’s behaviour with the benefit of knowledge of the attack that in fact occurred. This is classic hindsight reasoning fallacy. At [Tcpt p 282(25)] he said:

I was aware he presented with pinpoint pupils and was moving about in an agitated [manner] and displayed an acute brief period of disturbance from which, in my view, no prediction could have been made as to what behaviour would follow. (Emphasis added)

And at [Tcpt p 283(40)]:

Even having regard to Mr George’s behaviour on the roof there is no possibility on reasonable psychiatric grounds that it could be inferred as to what behaviour would follow. (Emphasis added).”

80. The point was clarified by a question from the judge in the following terms:[82]

“Q. Dr Roberts, do I understand that the opinion expressed in your report is that notwithstanding the observation of inappropriate behaviour a person who had observed that behaviour could not have predicted that Mr George would attempt to murder Mr Wright?

A. That's correct, your Honour. If I was there I could have concurred with a lay observation that abnormal behaviour was occurring, but there's no way that I could have predicted that violence would follow or the nature of the violence.”

82. Wright at [101].

81. It is by no means clear why the trial judge considered that this was “classic hindsight reasoning”. Predictability is an essential element of reasonable foresight; importantly, it is an essential element of that which must be foreseen as something which might occur, for the purposes of s 32. The judge was wrong to put the evidence aside on that basis, although its acceptance would not have assisted the plaintiff. The judge did, however, accept the relevance of Dr Roberts’ opinion that “[d]isturbed behaviour causes apprehension [in] bystanders”. Dr Roberts continued: “I think it’s as high as you can put it. You can’t infer any sequelae arising from that.” [83]

    83.    Wright at [102]-[104].

82. In short, this evidence supported the view that, whilst people may have been apprehensive at the strange behaviour exhibited by Mr George, it was not predictable that such behaviour might lead to violence. One would not reasonably foresee psychiatric illness resulting from that degree of apprehension of a bystander.

83. In the course of cross-examining Dr Roberts, counsel obtained agreement with the proposition that “people who suffer from violent attacks often end up with a psychiatric response to the attack as well?” [84] The trial judge also referred to Dr Roberts’ opinion “about the incidence of mental harm following a violent attack” as “[r]elevant”. [85]

    84.    Tcpt, pp 290(45)-291(3).

    85. Wright at [104].

84. In considering the operation of s 5B(1)(a) of the Civil Liability Act (the foreseeability of the risk of harm) the trial judge set out a list of factors, constituting the combined (but not necessarily shared) knowledge of Ms Hedges and Mr Williams, ending with the following:[86]

“…ordinary people placed in their situation would have an apprehension that a psychotic person or a person so drugged as to behave as George was behaving posed a risk of harm to the personal security of himself and others. This last point is consistent with common experience, and for what it is worth, with the evidence of Dr Roberts I have accepted. Clearly, Mr Williams continued to have such an apprehension.”

86. Wright at [118].

85. This finding (and the evidence on which it was based) fell short of a finding that a violent attack was foreseeable, or, relevantly, was foreseeable at a time at which Optus itself had a duty not to place the plaintiff in the situation in which he ultimately suffered a serious psychiatric illness. It takes the plaintiff’s case no further.

Contention (2) – the direction

86. Although the contention was not abandoned, little, if anything, was said in support of it either in writing or orally.

87. There was significant evidence in the course of the trial as to whether Ms Hedges requested the plaintiff to go up to level 4, or directed him to do so, and as to whether the plaintiff indicated reluctance, or went voluntarily. [87] The judge did not think that this issue was of importance in the case. [88] The important factor was that “he would not have gone to the roof to talk to George but for the intervention of Ms Hedges which was prompted by Mr Williams.”[89] The judge accepted that the plaintiff went “reluctantly.”[90]

    87.    Wright at [52]-[54].

    88. Wright at [59].

    89. Wright at [59].

    90. Wright at [59].

88. Nothing having been submitted to show why that, entirely reasonable, finding was erroneous, no more need be said in relation to the contention. It is likely that the issue was seen as relevant to breach, rather than duty.

Vicarious liability

89. The uncertainty expressed in the notice of appeal and notice of contention[91] as to whether the trial judge made a finding of vicarious liability based on the negligence of an individual employee of Optus should be resolved against the plaintiff. Any such finding should have been made in express terms; it was not. Parts of the judge’s reasoning relevant to duty of care appeared in the discussion of breach. Even including that part of the reasoning, the trial judge made no express finding that any of the three employees of Optus was negligent. On any view, each of them acted responsibly and reasonably in the circumstances.

    91. See [24] and [27] above.

90. Further, it is reasonably clear from the judge’s reasoning that no such finding was intended. The factual elements on which such a finding would be based were not established.

91. It was specifically pleaded, in the alternative to direct liability, that Optus was vicariously liable, but only for the negligence of Ms Hedges who, it was alleged, exposed the plaintiff to “what was obviously a dangerous and potentially life threatening situation”. [92]

    92.    Amended statement of claim, par 13.3.

92. Ms Hedges did not give evidence at the trial, but her statement to the police, prepared on the day of the incident, included a full account of her activities. It was tendered by the plaintiff. Critical parts of its contents have been referred to above. The judge made no finding that Ms Hedges was negligent; it followed that there was no finding of vicarious liability on the part of Optus based on her negligence. There was no notice of contention seeking such a finding.

93. The other two Optus’ employees involved in the events of the morning were Mr Williams and Mr Dee. After his assistance had been sought by Mr Williams, Mr Dee remained on level 4, keeping an eye on Mr George. There was no case of negligence pleaded or run in relation to Mr Dee.

94. While the pleadings did not allege negligence on the part of Mr Williams, and there was no express finding by the trial judge of negligence on his part, there were submissions by the respondent on the appeal that the finding of negligence on the part of Optus was based upon the combined knowledge of Ms Hedges and Mr Williams (and possibly Mr Dee) and the steps taken by Mr Williams in response to those matters of which he was aware. (There was no case that Mr Williams ought to have been aware of matters of which he was not in fact aware.) It did not follow that Mr Williams owed a duty of care within the terms of s 32. No findings were directed to those elements and no submissions on appeal addressed the evidence in those terms.

95. The absence of critical findings was in part because Mr Williams did not have information based on Ms Hedges’ conversation with the plaintiff which he accepted would have caused him not to permit the plaintiff to be left with Mr George, even in the presence of Mr Dee. It was not suggested that he was in some way negligent in not obtaining the information which he did not know existed. The question as to what he ought reasonably to have foreseen, in the terms of psychiatric illness, was not addressed.

96. To conclude that no person should have been permitted to approach Mr George (in circumstances where Ms Hedges, three other young women and two men had spoken with him or been near him with no apparent threat to them) or, finally, that the one person he had asked to speak to should not have been allowed to speak to him, involved a number of unwarranted steps and bears the hallmarks of benefiting from hindsight. Even if Ms Hedges had thought he appeared “psychotic”, the totality of the evidence, viewed prospectively, did not warrant the conclusion that she ought to have foreseen that Mr George might attempt to murder the plaintiff, or otherwise inflict an injury sufficiently serious that a person of normal fortitude might, in the circumstances of the case, suffer psychiatric illness.

97. On the basis of the evidence set out above,[93] it could not have been concluded as probable that any of the three members of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. However, absent such a finding, none of them owed the plaintiff a duty of care with respect to mental harm. Accordingly, in so far as the liability of Optus depended upon its vicarious liability for the acts of Ms Hedges, or the unpleaded acts of Mr Williams or Mr Dee, the plaintiff’s case was bound to fail.

    93. See [3]-[23] above.

[111]    A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264.”

304. The approach stated in Basha was accepted in Jackson v Mazzafero [2012] NSWCA 170 at [21] (Hoeben JA, Macfarlan JA agreeing).

305. The following observations can be made here. First, the submission by Optus that an assessment of 40 per cent of the most extreme case is appropriate is to be viewed in the light of the submission Optus made at trial; that the appropriate range of the percentage proportion of the worst case was between 35 per cent and 45 per cent.

306. Secondly, the cases relied upon by Optus as comparable are of no real assistance. Doherty involved a 49-year old police officer who suffered from PTSD as a result of the work he was performing as a police officer. Mr Doherty’s non-economic loss was assessed as 37 per cent of the most extreme case. This reflected the trial judge’s findings that Mr Doherty’s condition was not as bleak as was portrayed in the expert evidence the plaintiff relied upon; that there had been improvement in Mr Doherty’s condition and his ability to participate in daily activities, including socialising with family and friends and playing golf; and that Mr Doherty was at a relatively early stage of his psychiatric treatment.

307. By contrast with the plaintiff in Doherty, Mr Wright had an extensive history of hospitalisation and clinical treatment from 2001 onwards.

308. Nicol v Whiteoak involved a 49-year old woman who sustained severe injuries in a boating accident which left her with a brain injury, physical and mental disabilities and obvious scarring on her face and limbs. However, the Court found (at [143]) that the plaintiff had made a remarkable recovery, albeit that it was far from complete. The plaintiff’s non-economic loss was assessed as 50 per cent of a most extreme case.

309. Unlike the plaintiff in Nicol v Whiteoak, Mr Wright’s condition, generally speaking, grew more severe as time passed and in some respects, for example, drug dependence, developed and/or deteriorated as a result of treatment, adding to his suffering and increasing the difficulty of his recovery.

310. Thirdly, and contrary to Optus’ submission, his Honour gave reasons for preferring the opinion of Dr Klug. Whilst Dr Davies had expressed the view in March 2011 that there had been a “slight” improvement in Mr Wright’s condition over the last four years, he also acknowledged that there was still a long way to go until Mr Wright could be considered to have a reasonable level of emotional functioning. Dr McLeod (Mr Wright’s general practitioner), had expressed no more than a “hope” in April 2010 that Mr Wright would continue to slowly progress as he had done in the last two years. Against this, Dr Klug’s opinion in June 2011 was that Mr Wright was chronically impaired and unlikely to work again in the foreseeable future. Dr Klug concluded that Mr Wright was chronically and severely disabled, and was likely to need inpatient treatment at times. Dr Klug’s opinion was consistent with his Honour’s findings of fact.

311. Fourthly, his Honour did not ignore the possibility of improvement in Mr Wright’s condition in the future. He considered, however, that any improvement was unlikely to result in Mr Wright functioning in anything like a normal way. That view was open to his Honour on the evidence. For about 14 years following the incident, Mr Wright had suffered from PTSD and had bouts of suicidal ideation and self-harm. Mr Wright had not worked since August 2001; he used heavy drugs and then methadone; he became addicted to medication, such as oxycontin; he undertook no social or recreation activities; he was completely antisocial, living an isolated life, suffering from depression, hallucinations, fear, anxiety and all of the symptoms of severe PTSD. He attempted suicide numerous times, self-harmed by cutting his wrists and self-inflicting cigarette burns, and has been diagnosed with borderline personality disorder, panic attacks and bulimia nervosa. Mr Wright’s condition led to three admissions to Northside Clinic, multiple admissions to St John of God Hospital, at least eight admissions to Sydney Private Hospital, three admissions to Wesley Hospital, and admissions to Shell Harbour, Prince of Wales and St Vincent’s Hospitals, in addition to his undergoing multiple treatment regimens when out of hospital.

312. While the assessment of 75 per cent of a most extreme case may be considered generous, Optus did not suggest that his Honour erred in the application of principle. I am not satisfied that this assessment was manifestly erroneous. Ground 8(a) has not been made out.

(b)   Future care

313. Unlike the claim for past care which his Honour rejected because the statutory thresholds in s 15 of the Civil Liability Act (the provision of gratuitous care services of at least six hours per week for a continuous period of at least six months) were not satisfied (at [191]), the claim for future care was advanced on a commercial basis of 10 hours per week (as claimed in the statement of particulars).

314. His Honour found that Mr Wright’s psychiatric injury made him unmotivated and disorganised and that he required help with housework, cleaning, washing and perhaps some shopping to assist to make sure there was food in the house. He accepted Mr Wright’s unchallenged evidence that if he had someone available to him and he could afford it, he would pay someone to provide those services. His Honour considered that the position with a paid provider would be different to Mr Wright’s resistance to assistance from his family, taking into account his volatile relationship with his parents.

315. His Honour found that 10 hours per week as claimed was a “modest” amount to allow for these services: at [192]. Based on a weekly allowance of $350, his Honour assessed the future care as $344,715.

Submissions

316. Optus complains that no real reasons were provided for the award of damages for future care because that his Honour failed to address whether domestic assistance was necessary and whether or not Mr Wright would accept paid care. Optus pointed to the opinion of Mr Wright’s treating psychiatrist, Dr Davies, that care was not necessary. Optus repeated the submission it made at trial – that it was doubtful that Mr Wright would accept paid care, referring to Mr Wright’s father’s description of how his son resisted (voluntary) assistance from his family.

317. Optus also submitted that, having regard to the medical evidence of how difficult Mr Wright could be, coupled with his past resistance to (voluntary) family care, there was only ever a “chance” that Mr Wright could build a relationship with a paid provider. Accordingly, it was submitted that any damages for future care should be calculated by reference to the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, and the amount awarded should be discounted for the risk that the arrangement with a paid provider would fail.

Decision

318. It can be accepted that his Honour’s reasons were brief. However, as Mr Wright submitted, this largely reflected the limited way in which Optus challenged the claim for future care at trial.

319. The complaint by Optus that his Honour did not refer to Dr Davies’ opinion that Mr Wright did not require care is unfair. The written submissions of Optus at trial did not direct his Honour’s attention to this evidence, nor make such a submission based on this evidence. No attempt was made by Optus in this Court to demonstrate Dr Davies’ qualifications to provide such an opinion (as opposed to providing medical evidence as to need): see Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [54] (Allsop P, Campbell and Meagher JJA agreeing).

320. In any event, very little weight should be given to the opinion of Dr Davies that Mr Wright did not require assistance. This opinion, which was a bare conclusion unsupported by reasons, was only directed to the question of the “heavier aspects” of Mr Wright’s domestic duties (which were not specifically identified).

321. Further and importantly, Dr Davies’ opinion was not directed to the relevant activities the subject of the award for future care. This was whether there was a need for assistance with housework, cleaning, washing and shopping (for food), because Mr Wright’s psychiatric injury made him unmotivated and disorganised. On this question, his Honour had regard to, and was entitled to accept the unchallenged evidence of the need for care given by Mr Stuart Wright and also Mr Wright himself.

322. His Honour was entitled to reject Optus’ submission that Mr Wright was less likely to accept an arrangement with a paid provider than from other family members. The circumstance that Mr Wright had resisted family care in the past was sufficiently distinguishable, as his Honour found, having regard to the dynamics of the family relationship. His Honour was entitled to accept Mr Wright’s unchallenged evidence that he would utilise paid care in the future.

323. Nonetheless, there remains one difficulty with his Honour’s assessment of 10 hours per week for future care as “modest”. Counsel for Mr Wright accepted in this Court that there may have been an over-estimate of the claim for future care in the statement of particulars relied upon at trial. That concession was properly made in circumstances where there was no direct evidence of the time likely to be involved in providing domestic services and care to meet Mr Wright’s need for assistance. In my view, ground 8(b) has been made out to this limited extent.

324. That is not to say that no award should be made for future care. The Court must do the best it can on the available evidence. Other than referring to the opinion of Dr Davies, which has been dealt with above, Optus did not ultimately suggest that there was no need for future care. Taking into account Dr Klug’s evidence that Mr Wright’s psychiatric injury made him unmotivated and disorganised, and the finding that the need for future care involves housework, cleaning, washing and perhaps some shopping for food, in my view, an appropriate allowance for future care would be six hours per week.

325. Applying the 5 per cent multiplier used by his Honour (984.9) and a weekly allowance of $210, I would assess the award for future care as $206,829.

(c)   Future medical treatment

326. At trial, the parties were in dispute about the quantum of future out-of-pocket expenses for medical treatment and the like. Mr Wright claimed $515 per week based on the evidence of Dr Klug. Optus submitted that an appropriate figure would be $220 per week. The main point of difference was the frequency of psychiatric consultations (either monthly or fortnightly) and the estimate of weekly medication expenses (either $300 as claimed by Mr Wright or $100 as suggested by Optus).

327. His Honour allowed one consultation with a psychiatrist per month at $350 per session; one consultation with a psychologist per month at $180; ongoing medication at $200 per week; and an additional $5,000 per annum for GP visits, prescriptions and the prospect of hospitalisation. This resulted in an annual figure of $17,260, or $331 per week.

Submissions

328. The sole complaint by Optus is that his Honour failed to discount this award for contingencies. Optus did not expand upon this submission in oral argument.

Decision

329. His Honour’s assessment for future medication and medical treatment at $331 per week was at a level between the competing submissions of the parties and closer to that submitted by Optus. Optus did not challenge any particular element of his Honour’s assessment. No discount for contingencies was required in the circumstances where the prognosis for improvement in Mr Wright’s condition was not good. Ground 8(c) has not been made out.

(d)   Future economic loss

330. Optus accepted at trial that Mr Wright most probably will remain totally incapacitated for the rest of his working life. Nonetheless, Optus submitted that damages for future economic loss should only be allowed up to the age of 60, rather than the age of 67, and that the conventional discount for vicissitudes should be increased from 15 per cent to 25 per cent to allow for the possibility that Mr Wright will improve sufficiently to return to some form of remunerative work: at [179]. His Honour rejected both of these arguments.

331. As to Mr Wright’s likely retirement age, his Honour found that there was no reason to suppose that, but for the negligence of Optus, Mr Wright would have left the workforce at age 60. This was because his most likely work would have been of a clerical nature rather than hard manual work which might have forced him out of the workforce prematurely: at [180]. There is no challenge to this finding.

332. As to the possibility of Mr Wright returning to work, his Honour referred to the evidence of Dr McLeod and Dr Davies, the latter having expressed some optimism that Mr Wright, at some uncertain future time, might improve or be stabilised sufficiently to return to some form of productive work: at [181]. Taking into account Mr Wright’s education, training and experience, Dr Klug’s opinion was that the prospect of Mr Wright returning to appropriate employment is negligible, and he regarded him as chronically and severely disabled: at [182]. His Honour concluded that the prospect of Mr Wright returning to financially productive work was speculative: at [184].

333. His Honour calculated the award of future economic loss based on the parties’ agreement that the starting point was $1,184 per week net and adopted the figure of $1,207 per week net by reference to the Furzer Crestani Handbook. Applying the relevant multiplier up to age 67 (855.7) produced a figure of $1,032,830. The deduction by his Honour of $154,924.50 to arrive at an award of $877,905.50 reflected the usual 15 per cent discount for vicissitudes.

Submissions

334. The sole complaint by Optus relates to his Honour’s failure to increase the discount for contingencies from the “usual” 15 per cent to 25 per cent. No oral submissions were directed to this complaint.

Decision

335. His Honour addressed the appropriate discount for contingencies by reference to the medical evidence concerning the prospect of Mr Wright returning to work. The competing opinions of Dr Davies and Dr McLeod on the one hand, and Dr Klug on the other, have been referred to above. There is no challenge to his Honour’s finding, based on the evidence of Dr Klug, that the prospect of Mr Wright returning to financially productive work was speculative.

336. The application of the usual 15 per cent discount for contingencies in the assessment of future economic loss was unexceptional and no error has been demonstrated in his Honour’s approach to the evidence. Ground 8(d) has not been made out.

(e)   Fund management

337. The area of dispute at trial was limited to the anterior question of whether Mr Wright was entitled to any award for fund management costs. In the event that such an award was made, the parties had agreed the basis upon which the award was to be quantified: at [194].

338. His Honour referred (at [193]) to the principle stated by the High Court in Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 at [4], that where a defendant’s negligence has so impaired the plaintiff’s intellectual capacity as to put the plaintiff in need of assistance in managing the lump sum as awarded as damages, expense associated with obtaining that assistance is a compensable consequence of the plaintiff’s injury.

339. Having reviewed the evidence of Dr Klug, Dr Davies and Mr Stuart Wright, his Honour concluded that the impairment of Mr Wright’s intellectual capacity was such as to put him need of assistance in managing the lump sum awarded to him: at [194]. That finding is not challenged.

340. In calculating the award for fund management on the basis agreed between the parties, his Honour adopted the rates set out in the Furzer Crestani Handbook (page 22), which were based on the 5% tables: at [194]. Applied to an award of damages of $2,697,975 (after deducting the workers compensation payback which was assumed to be $709,373.36), his Honour assessed the amount of damages for fund management of $443,940: at [195]. It is not clear how his Honour arrived at this calculation, nor whether this award was later increased when the judgment was increased on 20 March 2015 (see *[110]* above).

Submissions

341. In writing, Optus submitted that his Honour failed to discount the award under this head of damages for the contingencies. No oral submissions were directed to this complaint.

342. Optus also submitted that if the judgment is reduced to any extent, then a recalculation of the damages for fund management will need to be undertaken.

Decision

343. The complaint by Optus that his Honour failed to discount this head of damages for contingencies is unfair, as no submission to this effect was made at trial. In any event, there is no merit in this complaint. As already mentioned when dealing with damages for non-economic loss, his Honour found that, even if Mr Wright’s condition improved, he would be unlikely to function normally. For this reason, Mr Wright required assistance in managing the damages awarded.

344. Nonetheless, since the damages for future care should be reduced by $137,886 ($344,715 less $206,829: see [324] above), a recalculation of the award for fund management on a lesser value of damages (excluding the amount of the workers compensation payback) must be undertaken in place of the calculation by his Honour based on the figure of $2,697,975. Ground 8(e) has been made out to this limited extent and the assessment of $443,940 for fund management should be set aside.

345. Since the Court has not had the benefit of submissions on the recalculation of the award for fund management (including the components of the amended judgment of $3,922,116.09 on 20 March 2015), the parties should be directed to agree the award for fund management in accordance with the basis for calculation which was agreed at trial. In the absence of agreement, directions should be made for the exchange of short written submissions by the parties on this topic and for this head of damages to be determined by this Court on the papers.

Costs of trial and the appeal

(1) Trial

346. There is no reason for disturbing the costs order at trial in favour of Mr Wright. First, Mr Wright has maintained the finding of liability against Optus. Secondly, a number of the heads of damage for which substantial sums were awarded were not challenged on appeal. Thirdly, in respect of the five heads of damage which were challenged, Optus has achieved only limited success in reducing the damages awarded for future care and a consequential (potential) reduction in the damages awarded for fund management.

(2) Appeal

347. As to the costs in this Court, it is necessary to distinguish the outcome as against each of Mr Wright and IPA. Optus has failed against IPA on appeal and costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1.

348. As between Optus and Mr Wright, Optus has had only limited success on appeal and then only in relation to two heads of damage. Nonetheless, there is good reason to depart from the usual rule that costs should follow the event.

349. First, as Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], “underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs”.

350. Here, most of the time spent by the parties in submissions, both written and oral, was directed to liability issues, on which Optus failed. Conversely, very little time was spent by Optus on the two heads of damage on which it succeeded. The written submissions of Optus directed to these heads of damage covered about one page and the oral submissions were quite brief.

347. Secondly, the reduction of $137,886 in the award for future care is a relatively small proportion (approximately 3.5 per cent) of the amended judgment below of $3,922,116.09. While the consequential effect of this reduction on the award for fund management is yet to be calculated, it can be expected that it will not materially alter the final outcome. In monetary terms, Optus has achieved a relatively small success on appeal.

348. Thirdly, while one possible approach here is to make orders whereby each party pays a percentage of the other party’s costs, as explained in Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197 at [11]:

…such a regime requires the determination of both parties’ solicitor-client costs, and effectively doubles the possibility for further dispute. In an area where, if one thing is clear, it is that a broad-brush approach is to be applied, the same substantive result can and in most cases should, be attained by an order that only part of a party’s costs be paid by the other party.

353. In the circumstances of the present case, justice requires that Optus bear a significant proportion of Mr Wright’s costs in this Court. In my view, the appropriate order would be that Optus pay 95 per cent of Mr Wright’s costs in this Court.

354. As between Optus and IPA, Optus has failed on appeal and there is no reason why costs should not follow the event: UCPR, r 42.1.

Conclusion and Orders

355. The appeal by Optus against the judgment in favour of Mr Wright has failed, other than for a small reduction in the assessment of damages for future care and a consequential (potential) reduction in the sum awarded for fund management.

356. The judgment in favour of Mr Wright should be set aside and judgment entered for $3,340,290 (being $3,922,116 less $137,886, less $443,940). There should also be judgment in favour of Mr Wright for damages for fund management, with a direction that the parties agree the amount of such damages in accordance with the basis of calculation of fund management costs agreed at trial, and, in the absence of agreement, those damages be determined by this Court following receipt of submissions by the parties as to the appropriate calculation. Optus should pay 95 per cent of Mr Wright’s costs in this Court.

357. The appeal by Optus against IPA in respect of the declaration made under s 151Z(1)(d) of the Workers Compensation Act has been unsuccessful. Optus should pay IPA’s costs in this Court.

358. Accordingly, I would propose the following orders:

1. Appeal against the first respondent allowed in part only – as to grounds 8(b) and (e).

2. Appeal dismissed as against the second respondent.

3. Set aside Order 1 made by the primary judge on 20 March 2015 and, in place, order:

1. judgment for the plaintiff against the first defendant in the sum of $3,340,290; and

2. in addition to (a) above, judgment for the plaintiff against the first defendant for damages for fund management, such amount to be agreed between the parties in accordance with the direction in (4) below, and in the absence of agreement, determined by the Court following receipt of the submissions referred to in (5) below.

4. The parties are directed to agree the calculation of the sum to be awarded for fund management on the value of damages awarded by this Court (excluding the amount in respect of the appropriate workers compensation payback) by adopting the rates at page 22 of the Furzer Crestani Handbook and provide the Court with a consent order within 10 days of these reasons.

5. In the absence of agreement between the parties as contemplated in (4) above, the parties are directed to provide short written submissions not exceeding three pages within 20 days of these reasons, setting out their proposed orders and argument in support of their respective calculations of the sum to be awarded as damages for fund management. The Court will determine any dispute on the papers.

6. Appellant to pay 95 per cent of the first respondent’s costs of the appeal.

7. Appellant to pay the second respondent’s costs of the appeal.

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Endnotes

Decision last updated: 17 February 2017