Wright by his tutor Wright v Optus Administration Pty Limited

[2015] NSWSC 160

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wright by his tutor Wright v Optus Administration Pty Limited [2015] NSWSC 160

Hearing dates:

11, 12, 13, 14, 15, 18, 21 & 22 November 2013

Date of orders:

06 March 2015

Decision date:

06 March 2015

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

My orders are:
Judgment for the plaintiff against the first defendant in the sum of $3,851,286.
Under s 77(2) Civil Procedure Act 2005 (NSW), I direct that the judgment money is to be paid into Court and to be held by the Registrar pending an application for either management under New South Wales Trustee & Guardian Act 2009 (NSW) or an order for payment under s 77(3) Civil Procedure Act 2005.
Direct the Registrar to inform the New South Wales Trustee & Guardian of the terms of the award I propose to make in accordance with s 23(3) Civil Liability Act 2002.
Judgment for the second defendant on the first defendant’s cross claim.
Declare that under the provisions of s 151Z(1)(d) Workers’ Compensation Act 1987, the first defendant is bound to indemnify the second defendant for all amounts paid to, for or on behalf of the plaintiff under the 1987 Act.
The first defendant to pay the plaintiff’s costs of and incidental to the proceedings forthwith after they have been agreed or assessed.
First defendant to pay the second defendant’s costs of and incidental to the proceedings forthwith after they have been agreed or assessed.
Under Rule 36.11 Uniform Civil Procedure Rules 2005 defer entry of the judgments and orders pronounced until further order.
List the matter for directions for Campbell J at 9:30 am Friday 20 March 2015.
Parties to have liberty to apply to be exercised by written submissions lodged with the associate to Campbell J no later than 4:30 pm 18 March 2015.

Catchwords:

TORTS – negligence – liability for criminal act of co-worker – whether exception to Modbury principle – causation where psychological injury caused by attempted murder

TORTS – negligence – whether a duty of care is owed by the defendant where the plaintiff was contracted out from a labour hire company – whether such a duty is analogous to an employer and employee relationship - whether the defendant has breached its duty of care to the plaintiff under the Civil Liability Act

TORTS – negligence – the liability of the employer to the plaintiff – whether absence of employers control took risk outside scope of employers liability – application of s 151Z Workers Compensation Act

WORKERS’ COMPENSATION – employer’s liability – psychological injury – the application of Part 3 of the Civil Liability Act – whether the risk of personal injury including mental harm was reasonably foreseeable

DAMAGES – torts – negligence – workers’ compensation – quantum of damages for near catastrophic injury

Legislation Cited:

Civil Liability Act 2002 (NSW);
Law Reform (Miscellaneous Provisions) Act 1946 (NSW);
Workers Compensation Act 1987 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420;
Ashrafi Persian Co Pty Ltd T/as Roslyn Gardens Motor Inn v Ashrafania [2011] NSWCA 243;
Bankstown Foundry Pty Ltd v Brastina (1986) 160 CLR 301;
Benic v State of New South Wales [2010] NSWSC 1039;
Bootle v Barclay [2013] NSWCA 142;
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167;
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520;
Chapman v Hearse [1961] HCA 46; 106 CLR 112;
Coca Cola Amatil NSW Pty Ltd v Pareezer [2006] NSW CA 45;
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1;
Dib Group Pty Ltd T/as Hill & Co. v Cole [2009] NSWCA 210;
Director General Department of Education & Training v MT [2006] NSWCA 270;
Doubleday & Kelly [2005] NSWCA 151;
English v Rogers [2005] NSWCA 327;
Estate of the late MT Mutton by its Executors & R W Mutton T/as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340;
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21;
Jaensch v Coffey [1984] HCA 52;
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1;
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383;
M v The Queen (1994) 181 CLR 487;
McLean v Tedman (1984) 155 CLR 306;
Modbury Triangle Shopping Centre Pty v Anzil [2000] HCA 61; 205 CLR 254;
North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240;
Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330;
Shaw v Thomas [2010] NSWCA 16;
Smith v Leurs (1945) 70 CLR 256;
Stephan v Pacesetter Cleaning Services Pty Ltd [1995] NSWCA 455; 12 NSWCCR 19;
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16;
Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35;
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSW LR 1;
Wallace v Kam [2013] HCA 19; 250 CLR 375;
White v Johnston [2015] NSWCA 18
Wright v Optus Administration (No 6) [2013] NSWSC 1719;
Wyong Shire Council v Shirt [1980] HCA 12.

Category:

Principal judgment

Parties:

Glenn Wright by his Tutor James Stuart Wright (plaintiff)

Representation:

Counsel: R A Cavanagh SC with J Callaway (plaintiff)
J Simpkins SC with D Villa (defendant)
W Reynolds (cross-defendant)

Solicitors: Firths The Compensation Lawyers (plaintiff)
Hunt & Hunt (defendant)
Sparke Helmore Lawyers (cross-defendant)

File Number(s):

2009/297493

Judgment

1. I apologise to the parties for the long delay in giving judgment. Glen Wright suffered personal injury and mental harm as a result of being assaulted by Nathaniel George on 15 March 2001 when Nathaniel George attempted to murder him by throwing him off a fourth floor balcony at their place of work in Gordon, New South Wales.

2. Mr Wright and George were undertaking training given by Optus Administration Pty Ltd (“Optus”) for work in Optus’ call centre. They were unknown to each other prior to commencing the training a few days earlier. They do not seem to have formed any relationship either of amity or animosity. During the short time the course had been running they had had very little contact with each other. They had had a brief conversation on the morning of 15 March 2001 walking from Gordon railway station towards Optus’ premises. They may have had prior minor conversations during refreshment breaks in the course.

3. The evidence (see especially Exhibit 1D4) established that George had formed a desire to kill someone. He had fixed that desire on another person the previous day. The intended victim was leaning against the rail of the fourth floor balcony but walked away before George could put his criminal intent into action. It seems that later that night at home his murderous intent settled on Mr Wright. After his attempt on Mr Wright he told Mr Paul Dee, a team leader employed by Optus (Exhibit 1D4, p 3[6]), “I thought about it all last night and only got about 3 hours sleep”. Statements to the same effect were made to investigating police officers (eg Exhibit 1D8).

4. George’s attempt on Mr Wright’s life was foiled by the intervention of Mr Dee, who was able to physically restrain George, but not before he had assaulted Mr Wright.

5. There is no dispute that Mr Wright suffered physical injury from the blows to his head inflicted during the assault and that he subsequently developed a post-traumatic stress disorder due to the attempt on his life.

The proceedings

6. Mr Wright is suing Optus for damages for the harm suffered by him as a result of George’s attack. His claim invokes that category of negligence discussed in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1. His case is that at the time of the attack, Optus owed him a duty of care analogous to that owed by an employer to an employee. Mr Wright was employed by IPA Personnel Pty Ltd, the cross-defendant (“IPA”). IPA carried on business as a labour hire company. Mr Wright says his services were lent by IPA to Optus pursuant to a contract between them and while undertaking the training course, he was working under the direction, supervision and control of the latter. His claim for damages against IPA under Division 3, Part 5 of the Workers Compensation Act 1978 (NSW)(WCA) was discontinued. IPA remained as a cross-defendant, and cross-claimant.

7. Optus’ cross-claim against IPA is for contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (1946 Act). Contractual claims arising from the written contract between them (Exhibit HH) have not been pressed: 387.5T; 481.45-418.45-419.10T; 449.45. IPA’s cross-claim is for an indemnity under s 151Z(1)(d) WCA for workers compensation paid to, for or on behalf of Mr Wright.

8. It is worth recounting at this stage that George was directly employed by a different labour hire company, Drake International Pty Ltd (Exhibit HD1; Exhibit EE p 2[6] and pp 3-4[13] – [15]). Claims against Drake have not been pressed.

The issues

9. Optus deny that it owed Mr Wright a TNT v Christie type duty. It says the only relevant relationship between them was that occupier of the premises and lawful entrant and that the outcome of the case is governed by Smith v Leurs (1945) 70 CLR 256 at 262 and Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, given Mr Wright was clearly the victim of a criminal offence perpetrated by George.

10. Whatever decision is made about the existence, nature and scope of any duty owed, Optus also argues that the evidence does not establish negligence on its part, which question is to be determined in accordance with the provisions of s 5B Civil Liability Act 2002 (NSW) (CLA); and if it is wrong about that, Mr Wright has not proved legal causation in accordance with s 5D CLA. Alternatively, contributory negligence is relied upon, and as I have said, contribution is sought from IPA.

11. There is no issue about the nature of the harm suffered by Mr Wright. The extent of it is in issue, partly anyway. The entitlement to allowances for many of the heads of damage claimed is not in contest. Some matters have been agreed as I will indicate when dealing with the quantum issues; others are denied or at least contested.

The facts

12. The primary facts are not seriously in contest. There is an issue about some details which may be significant. One such matter is whether Mr Wright was directed, in the sense of being ordered, by his trainer, Ms Natalie Hedges (Exhibit B), to go to the roof to talk to George immediately before the attack. Optus says Ms Hedges merely made a request about that which Mr Wright was free to refuse. He was, on its case, a volunteer in every sense. To the extent to which Mr Wright’s evidence is different Optus argues that I should reject it. It says that there are inconsistencies in his evidence and his evidence was given 12 years after the event and after he had been required to give many accounts of these events over the years resulting in discrepancies and inconsistencies undermining his reliability as a witness: M v The Queen (1994) 181 CLR 487 at 534 (McHugh J). I will resolve this issue in the course of recounting the facts, which I am satisfied, have been established by the evidence.

13. Another factual issue, important for identifying the nature of the duty owed by Optus to Mr Wright, is whether the latter undertook the training course under the “Personnel Agency Agreement” between IPA and Optus. And I will turn to that issue first.

The applicability of the personnel agency agreement

14. As I have recounted already, Exhibit HH is a signed agreement between Optus and IPA. Optus says that the evidence does not establish that Mr Wright was placed in the training course under that agreement. Essentially, Mr JB Simpkins SC and Mr DF Villa, who appear for Optus, argue that the documentary evidence tendered in the plaintiff’s case does not demonstrate compliance with that agreement and I should not be satisfied that Mr Wright was placed in the training course under it.

15. A worker placed under the agreement is defined as a “Key Person”. The provision of a Key Person by IPA to Optus is referred to in the written contract as the provision of “Services”. The written contract broadly governs the ongoing relationship between IPA and Optus; however, the force of Optus’ argument is that Exhibit HH contemplates the creation of a separate “Services Contract” in respect of the provision of each Key Person. Each service contract is said to consist of (Clause 1 Exhibit HH):

The purchase order issued by Optus; and

The terms and conditions of this agreement.

It is the absence of a purchase order issued by Optus from the evidence before me that underpins Optus’ argument.

16. Clause 2 of Exhibit HH deals with the engagement of IPA and the obligations of Optus. If the ordering procedure set out in Clause 3 is complied with, IPA is obliged to provide either temporary or permanent staff for Optus. It is contemplated that Key Persons provided as temporary staff may convert “to roles as permanent staff”. Different rates of remuneration of IPA are specified in schedules to the contract. Normally, if IPA pays “its Key Persons directly” Optus will reimburses IPA (Clause 2.3).

17. The formation of an individual service contract is proceeded by a written request by Optus for the provision of services which sets out the criteria for the Key Person to be provided. IPA is obliged to ensure it understands the request and if necessary seek clarification before locating a Key Person who it believes meets Optus’ criteria. Optus reserves the right to interview and refuse any Key Person provided by IPA. When IPA provides the Key Person, Optus issues a “Purchase Order” to IPA specifying the services and applicable rate. If the category of staff is not covered by an agreed rate, IPA and Optus are to negotiate in good faith on the appropriate rate. Optus may request a quote before engagement.

18. Each purchase order is required to have the characteristics set out in Clause 3.7 of Exhibit HH, which need not be recited here. Once the Service Contract is created it cannot be varied unilaterally by any document issued by IPA.

19. By Clause 5 of the agreement IPA is required to enter into a legally binding contract with each Key Person requiring the Key Person, inter alia, to carry out the work he or she was provided to Optus to perform to the best of his or her ability and “in accordance with all reasonable directions given by Optus from time to time”. This contract is to contain a promise from the Key Person to conform to hours of work reasonably required by Optus for the provision of the services and to substantially devote the whole of his or her time and attention to the performance of the work during those hours.

20. By Clause 5.4 the obligation to perform the work is personal to the Key Person: no one else may perform it in his or her stead.

21. Invoices issued by IPA for payment are required to be accompanied by copies of Optus’ time sheet “for each Key Person involved in performing the services” (Clause 8).

22. It is accurate to say that no written request or purchase order as contemplated by Clause 3 of the contract is in evidence. However, Exhibit JJ is IPA’s tax invoice directed to Optus in respect of the provision of Mr Wright to work in the call centre during the week ending 18 March 2001. It makes reference to a purchase order number, ORD 19927. Exhibit KK is a printout of IPA’s payroll transaction report relating to Mr Wright, inter alia for the week ending 18 March 2011. The invoice is in the sum of $864 made up of $786 and GST of $78.60. The payroll report shows that Mr Wright’s total pay for the week ending 18 March 2001 was $600, but that the “total bill” was $786. Exhibit LL shows that Optus paid the invoice for Mr Wright’s services (invoice no. 80518) on 22 March 2001.

23. In his statement (Exhibit EE) Mr Trevor Williams, a team leader employed by Optus at the Gordon premises described Ms Hedges as “holding a training program for new inductees. Some of the inductees are from temp agencies” (sic).

24. In Exhibit B, Ms Hedges said ([4] – [5]):

On Thursday 15th March, 2011 I was at the Optus building at 810 Pacific Highway, Gordon, which is my usual place of work. I was conducting a training group of thirteen customer services representatives, who had been supplied to Optus by personnel agencies. The trainees are employed by the agency working for Optus on a three month contract basis, with the option of full time employment at the end of that period.

For the training period, the trainees attend the class environment for the term of the training course which is a three and a half week course. The personal details of each of the trainees are recorded on a sign-on sheet that, is like an attendance role (sic).

25. In his further evidential statement (Exhibit A1) Mr Wright said that he found work with IPA on 12 February 2001, and that he was sent to the training course with Optus at Gordon. He also states that he undertook the course with the intention of working full time with Optus on its conclusion (see also Exhibit A2 [5]).

26. The parol evidence rule precludes me from taking into account the subjective understanding of the lay witnesses as to the existence and nature of the legal relationship amongst the parties, and I put these accounts to one side. However, from Exhibits CC, HH, JJ, KK and LL, I infer that Mr Wright was working at Optus’s Gordon premises undertaking the training course pursuant to a “Services Contract” brought into existence in accordance with the provisions of Clause 3 of Exhibit HH and the contract was formed by Optus issuing a purchase order to IPA as contemplated by Clause 3. Although it is not in evidence that purchase order was identified by the number ORD 19927. There was no evidence of any other contract having been formed between IPA and Optus for the provision of Mr Wright’s services.

27. If I am wrong in the inference I have drawn about the issuing of a purchase order, then I would hold that the issue of IPA’s invoice and Optus’ payment of it constitute an implied contract for the provision of Mr Wright’s labour to Optus requiring him to work for Optus and under its control: Stephan v Pacesetter Cleaning Services Pty Ltd [1995] NSWCA 455; 12 NSWCCR 19; Bootle v Barclay [2013] NSWCA 142 at [65] – [67] (Sackville AJA).

28. From my finding that Mr Wright was working for Optus under a contract between it and IPA formed in accordance with Clause 3 of the Personnel Agency Agreement, it follows that whilst he was at work during the hours specified by Optus he was subject to the direction and control of Optus and those persons it placed in a supervisory role over him.

The employment of Mr George

29. It is common ground that George’s services were provided by Drake. It entered into what appears to be a personnel agency agreement in identical terms to Exhibit HH on 16 November 2000 (Exhibit XD1). Only every second page of the printed written contract is reproduced in the photocopy tendered. This is, no doubt, because of a glitch in photocopying. Although it runs to 18 pages, and the IPA agreement to 17, the difference in length appears to be accounted for by differences in formatting only. I infer that George’s services were provided to Optus by Drake pursuant to a Services Contract made under its personnel agency agreement. Importantly, he had no legal relationship whatsoever with IPA; IPA had no authority over him in any way.

The scene of the attack

30. I infer that the Optus building has four levels. Mr Williams referred to Level 4 where the attack took place as “the roof”. Level 1 is the ground floor with the reception area and Ms Hedges’ training room. There is no evidence about what is on Level 2. Level 3 includes the administrative office where the team leaders referred to (Mr Williams and Mr Dee) had their desks. Level 4 (or the roof) is described as a recreation area with a balcony. I infer that the balcony is edged by a railing. From a sketch attached by Mr Dee to Exhibit 1D4, the balcony appears to run around all four sides of the outer perimeter of the building. Within the enclosed area of Level 4 there is a recreation room and a number of training rooms.

The events of 15 March 2001

31. There is much to be said for Optus’s argument that the most reliable evidence about the events of 15 March 2001 is to found in the contemporaneous statements obtained from witnesses by investigating police on and soon after that day. But it must be borne in mind that police statements are obtained for the purpose of investigating serious crime. Not every issue relevant to the evaluation of a case of negligence is likely to be dealt with for the simple reason that such matters may not be relevant for police purposes. Moreover, the events which occurred were of a memorable type. Most witnesses would retain a vivid recall. It should also be pointed out that notwithstanding “the everyday experience of the courts” referred to by McHugh J in M v the Queen at [534] (referred to at [12] above), it is my duty to attempt to make necessary findings about what happened on the balance of probabilities, from the evidence actually led in the proceedings from the eyewitnesses.

32. Mr Wright saw George when they alighted from the same train at Gordon railway station at about 8:25 am. Mr Wright was concerned he might be late as he wanted to buy medicine over the counter from a pharmacy for flu symptoms he was suffering. He asked George to tell Ms Hedges that he might be “5 minutes late”. George agreed to this. Nothing untoward passed between them at this time.

33. It seems that George was the one who was 3 minutes late as recorded by Ms Hedges (Exhibit B, p 2[7]).

34. George absented himself from the training room without permission at about 9:15 am. This is not unusual as trainees were permitted to leave to use the toilet without permission (Exhibit A p 3[10]). However, Ms Hedges noted that he had not returned by 9:30 am. I infer this was unusual because she looked at her watch to check how long he had been gone for (Exhibit B p 2 [8]). I infer Ms Hedges was starting to become concerned about George’s absence.

35. Not long after George’s departure another trainee handed Mr Wright a note from him which said, “Tell Glen 2 to come with me” (sic). Mr Wright ignored this note.

36. Soon after Ms Hedges noticed another trainee named Beau re-enter the classroom. She had not seen him leave. She noticed him go over to Mr Wright and whisper something in his ear.

37. Mr Wright’s statement (Exhibit A1 p 3[11]) is that Beau said, “Nathaniel wants to see you upstairs”. When Mr Wright asked “Why?” Beau said, “He just wants you to go upstairs”. Mr Wright formed the impression that this was said “with a sense of urgency”. Mr Wright ignored this request too. Ms Hedges, who did not know what had been said, formed the impression that Mr Wright looked annoyed at this and “sort of just waived Beau off”.

38. She decided she should intervene. She called the class to attention “and asked whether there was something I should know?” (Exhibit B p 2[9]). She was told, “No”. Not satisfied with this response she set the trainees work to do on their computers and left to look for George. Apparently she did not ask the class if anyone knew where he was.

39. She looked in the foyer and then outside in case he had gone for a “smoke”. He was not there so she proceeded to the roof. She said, “I found [George] on level 4 wandering around on the balcony” (Exhibit B p 3[7]).

40. While Ms Hedges was still in the recreation room George came inside. She approached him and asked, “What are you doing?” He did not respond, but walked past her and looked up at the television, which was on. She called his name several times and he did not respond. She said “He didn’t look like he knew I was even there”. He did not respond to requests that he return to the training room, or that he should come to sit down. Ms Hedges asked George several times, including in a loud voice, “What’s wrong” without response. She said, “He appeared completely incoherent”. She formed the view that he may have been on drugs because of his non-responsiveness and her observation that his pupils were “like pinpoints”. She thought it inappropriate to inquire about that of him. George then said, “Where’s Glen?” referring to Mr Wright. When he said this he looked at Ms Hedges, but then resumed looking at the television, swaying. Ms Hedges waived her hand in front of George’s eyes saying, “Nathaniel, can you tell me what’s wrong” without any acknowledgment by him.

41. Three other employees entered the recreation room. George was still swaying and Ms Hedges was getting “really worried”. She asked the girls to “watch him” while she sought help.

42. The person from whom Ms Hedges sought help was Mr Williams. When she arrived at his desk on the third floor he thought she appeared “to be quite distraught. She was shaking and crying.” (Exhibit C p 1-2[5]). Ms Hedges gave Mr Williams an account of what had happened on the roof including her view that George was on drugs.

43. Mr Williams obviously formed the view that George presented a risk to the personal safety of others, based upon Ms Hedges’ description, because he decided he needed assistance to deal with the situation on the roof. At (209.50 – 210.45T) he gave evidence of enlisting the additional assistance of Mr Dee saying:

Q   Why did you go and speak to Paul Dee?

A   Well, he was another team leader, he was situated closest to me, obviously for my own safety, and basically to have some else there.

In cross-examination (213.40T) he gave the following evidence:

Q   And when you were on the roof and speaking to [George] 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, very quiet.

On further questioning Mr Williams clarified that although he found George “very calm” when he saw him on the roof he continued to pace up and down which Mr Williams found “unusual”. It is worth recording that Mr Dee presented as a very fit looking man who said his height was 5ft and 10 inches and that in March 2001 he weighed 80 kilograms. He gave evidence that he takes care about his level of fitness (239.30T). At the time Mr Williams first approached Mr Dee he was on the phone. Whilst waiting for him to finish the call he had one of his staff make inquiries about the agency which employed George.

44. When Mr Williams, Mr Dee and Ms Hedges arrived on the roof George was on the balcony pacing backwards and forwards with his head down. Mr Williams formed the impression that he was confused. He refused the offer of tea or coffee and asked for Mr Wright. He was non responsive to other questions.

45. Mr Dee (Exhibit 1D4 p 2[4]) said that George ignored his questions. He followed George’s pacing “and every time I was close to him he would change directions”. Eventually George said, “I’m waiting for Glen, I want to see Glen”. When Mr Dee asked, “who’s Glen” George did not answer and kept pacing. Mr Dee said “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”. (Exhibit 1D4 p 2[4]).

46. As I have said, Mr Williams said that Mr George appeared “very calm”. I do not think this is correct. That assessment was absent from his police statement. And it seems to me to be inconsistent with his own description of George’s behaviour contained in the statement and particularly with Mr Dee’s description. When they returned to the balcony Ms Hedges said George was wondering aimlessly, mumbling something (Exhibit B p 4[10]).

47. In Exhibit C, Mr Williams said that he and Mr Dee stood on either side of George and as George paced up and down they attempted to steer him away from the railing. He added:

I decided that I had better let some people in the company know what was happening.

48. In evidence Mr Williams said “…. After walking with him for quite some time… I felt it was safe to leave”. However, at the time he tried to steer George away from the railing he had been concerned “he may try and hurt himself, or jump off the roof” (218.30 - .35T).

49. 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 (Exhibit C p 3[11]).

50. Before leaving the roof Mr Williams had a further conversation with Ms Hedges. Ms Hedges told Mr Williams that she believed “Glen” was Mr Wright. She asked whether she should bring Mr Wright up to the roof. Mr Williams assumed, wrongly, that Mr Wright must be a friend of George’s (he also assumed Mr Wright might have given him drugs) and in response to Ms Hedges’ query directed her to bring Mr Wright up to the roof. Mr Williams “certainly wouldn’t have sent for him”, but for his wrong assumption. That, in his view, “would have seemed quite strange”: (210.35T).

51. As I have said, there is an issue about whether Mr Wright was ordered to come to the roof or whether he was a volunteer. Ms Hedges simply says:

I went back to my room on the ground floor and found Glen. I sent the rest of my group on a break. Glen and I went up to level 4 and up onto the balcony. (Exhibit B p 4[11]).

(The numbering on Ms Hedges’ police statement is erratic.)

52. In evidence, Mr Wright said that Ms Hedges told him George was on the roof pacing backwards and forwards appeared to be on drugs and was asking for him. He said that she appeared “rattled, flustered and quite frightened”. I accept this, especially given Mr Williams description (see [42] above). Mr Wright wondered how could he help “when [he] had no clue as to what was actually happening”. Ms Hedges said something like “we’ll go up to the roof and see what he wants and go from there”. In the lift Ms Hedges again referred to him being on drugs and asked Mr Wright “is he on drugs?” He said “I don’t know, I don’t know anything about him”. (30.45 – 31.25T). See also Exhibit A1 p. 5 [34] – [38]. In his evidential statement he said he felt very reluctant to go and “felt pressured to go”. He said:

At that stage I felt pressured to go with Ms Hedges as it was the third time I had been asked to see Mr George and I was now being asked by the trainer to accompany her.

In his police statement made on 19 March 2001, (Exhibit A2 p 3[12]) Mr Wright gave this account:

[When Ms Hedges returned to the room] she appeared to be in a panicked state. She sent our training group on a break. The other members of the group then left the room. Natalie then told me something (Natalie said “can you come with me.”) I went with her in an elevator to level 4 of the building. In the elevator Natalie spoke to me, (she said, “he’s up on the roof, he’s lost it and he’s asking for you, is he on drugs?) I said “I’ve never met the guy before Monday, I don’t know”.

53. Mr Wright was closely cross-examined about whether the words “why don’t we go and see what it’s about and take it from there” constituted a lawful instruction which he had no choice but to accept (77.10 - .40T). He agreed Ms Hedges did not say “you must come with me” (77.40T). But he denied the words actually spoken were “a request by her for help”. He “took it as an instruction” (77.45T).

54. He was also cross-examined on an earlier version of his evidentiary statement made in 2010 (MFI 2). The cross-examiner demonstrated that details in that statement were inconsistent with Exhibit A2 and his oral testimony. In particular in [10] of MFI 2 Mr Wright said he told Ms Hedges he did not want to go to the fourth floor (68.50 – 69.5T). He agreed there was no mention of any initial refusal to go to the roof in his police statement (70.5T). He said his statement that he didn’t see how he could help expressed the idea “that I didn’t want to go up to the roof” (70.20T). He agreed that he did not specifically say “I don’t want to go to the fourth floor” (70.25T); “not in those specific words” (70.35T).

55. Because Optus saw this as a critical issue there was a deal of other cross-examination about and around it. I do not think it necessary to descend into the details. I interpolate that I also accept that it was shown that Mr Wright’s evidence about the absence of any pre-injury anxiety symptoms was inaccurate and that he had sought medical attention and received treatment for mental health issues of different kinds from the age of 14 (47.30T - 50.10T). I am asked to take these inconsistencies into account in assessing the reliability of Mr Wright’s account.

56. I accept that there are inconsistencies in Mr Wright’s account of his pre-injury mental health. But I do not regard those inconsistencies as emblematic of dishonesty. I regard him as an honest witness. Clearly, however, his failure to recall the detail of the pre-injury symptoms recorded in contemporaneous documents makes his account of this medical history unreliable. It does not follow that his evidence generally is unreliable.

57. There are differences in the various accounts he has given about the detail of him complying with Ms Hedges’ request that he accompany her to the roof to talk to George. These differences, however, are errors of detail of a kind which do not substantially undermine his reliability let alone his honesty. Making all due allowance, as I think appropriate, for his mental state, his difficulty in giving a straightforward answer to some questions in cross-examination does not bespeak evasiveness. Rather, his apparent difficulty as a witness was due to a tendency to say too much by way of explanation rather than, as lawyers prefer, providing a direct answer to the questions asked.

58. It is clear that he was not asserting that Ms Hedges was “ordering” him to accompany her to the roof. Nor was he asserting that at any time he in plain terms sought to refuse to go. In my view, the correct finding is that Ms Hedges wanted him to accompany her to the roof and sought to obtain his co-operation by a degree of cajoling (let’s see what he wants and take it from there). I also find that he succumbed to that cajoling although he would have preferred not to get involved. He at no time frankly declined to co-operate. But, given that Ms Hedges was in a supervisory position over him, I accept that he felt a degree of compulsion in complying with her request. He did not volunteer to help. I accept he expressed doubts that he could be of any assistance. His reluctance to become involved, in my view, is amply demonstrated by his undisputed evidence that he refused to have anything to do with George’s earlier approaches to him by note and the intercession of other fellow trainees. His refusal to comply with those earlier requests is corroborated by Ms Hedges’ statement.

59. In any event, in the context of this claim for damages for negligence, the question is not whether he was ordered to help by Ms Hedges on the one hand, or whether he freely chose to assist on the other; the real question is whether it was reasonable, as between him and Optus, in the legal context of his claim for damages, for him to comply with a request to assist made of him by the persons Optus had placed over him, notwithstanding that it may have been open to him to refuse: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 11. Given the nature of the legal relationship amongst Optus, IPA and Mr Wright discussed above, I conclude that it was reasonable in that sense. I also find 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. Although in a sense he went voluntarily, he also went reluctantly.

60. The 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. When they came out of the lift, Mr Williams correctly assumed that Mr Wright was the person with Ms Hedges. He continued to labour under his erroneous assumption that Mr Wright and George were friends and he must have continued to believe that George may have been under the influence of some illegal drug because he asked Mr Wright whether he had “given [George] anything” (Exhibit C p 3[11]); Ms Hedges says Mr Williams “had left” when she and Mr Wright got to the balcony. But I prefer Mr Williams’ version. Like Ms Hedges’, Mr Williams’ statement to the police was made on the day of the incident. It is not unusual for there to be differences between apparently honest independent witnesses. That too, forms part of “the everyday experience of the courts”. It just seems to me that he is unlikely to have been in error about that detail. Ms Hedges was by all accounts quite upset, and was doubtless further upset when the attack which she witnessed occurred. She was involved in the whole episode from start to finish and all of these circumstances together make it more likely that this small detail would have slipped her mind than the possibility that Mr Williams might have had a false recollection of an exchange with Mr Wright which did not take place.

61. Mr Williams then left and returned to his desk to make his report to his superiors leaving the situation under the control of Mr Dee and Ms Hedges. The accounts of Mr Wright, Ms Hedges and Mr Dee about what happened next are substantially consistent with one another.

62. There was no conversation between Mr Dee and Mr Wright. Nothing was said to Mr Wright about what Mr Williams or Mr Dee had in mind, if anything. He was simply left to his own devices. He approach George and asked “What’s wrong?” Mr Wright says that George didn’t reply and kept pacing. Mr Wright then said “If you want me to help you, you have to tell me what’s wrong”. He said that George started talking about the view and repeated himself “over and over” about it (Exhibit A2 p 4[13]). Neither Ms Hedges nor Mr Dee could hear what was being said. Mr Dee heard George “grumble something” to Mr Wright. Initially Mr Dee was about 15 metres away from where George and Mr Wright were. He moved closer “so I could see because I was concerned about [George’s] well-being” (Exhibit 1D4 p 2[5]). He said George started yelling at Mr Wright. He motioned to Mr Wright and said “are you ok?” Mr Wright said he was. Neither Ms Hedges nor Mr Wright mentioned that detail in their police statements. When asked about it in cross-examination, Mr Wright said “I don’t remember that, but I can’t say it didn’t happen one hundred per cent” (84.40T). Mr Dee was not challenged about it; indeed he was not cross-examined at all. On the probabilities, I am prepared to accept that such an event occurred.

63. There is an issue about how far Mr Dee was from George and Mr Wright when George attacked. This issue arises out of the contents of Exhibit 1D4 at [5], which suggests that he had moved closer than 15 metres at that time. However, the sketch attached to his statement prepared in his own hand marks his position “when the scuffle broke out” with an asterisk. He writes, “About 15 metres away”. The same document records that George and Mr Wright had moved down to the very extremity of the balcony at that time. I find that Mr Dee was maintaining a distance of 15 metres when George attacked Mr Wright.

64. On the evidence, George lured Mr Wright to the extremity of the balcony, away from the vicinity of the others. I accept Mr Wright’s evidence contained in Exhibit A2 (p 4-5 [13] to [14]) that George invited Mr Wright to look over the railing at a car. At that time it occurred to him that George was intent on getting him to the edge of the building and he recalls instinctively putting his hands on the underside of the railing. George suddenly grabbed him and he felt George lift him upwards. He was shocked but held on tight. He did not know what was going on. George started to punch him.

53. This version is confirmed by Mr Dee who said he saw George attempt to pick Mr Wright up, crouching down and placing his arms underneath Mr Wright’s arms and around his waist. He started to lift him off the ground. Mr Wright resisted and George started punching him. He made good contact with the left side of Mr Wright’s face near his eye. Mr Dee rushed to intervene and was able to “reef” George away from Mr Wright. He bear-hugged George to restrain him. George struggled trying to break away, thrashing with his arms and legs and yelling “I’ll kill him”. Mr Dee was able to restrain George and get him inside the recreation room.

54. While Mr Dee was restraining George, Mr Wright, I infer from Ms Hedges’s description, was cowering against the wall on the balcony holding his eye. Ms Hedges said to him “go, quickly” and he ran off (Exhibit B p 6[12]). She saw that George “was still very aggressive” but Mr Dee managed to get him back inside. Mr Dee instructed her to shut all the doors which she did. On her account, George was a bit calmer but was still pacing around the room. She then went looking for Mr Wright and found him on the ground floor. She gave him an ice pack to treat his facial injury. She later took him to a nearby medical centre. After the consultation when walking back to the Optus building she noticed Mr Wright started to walk in an unusual manner, “as though his legs were a bit jelly like”. She had to hold him to help him walk back to the premises. He went to the bathroom but when he emerged he collapsed, falling to the floor. It was necessary for her to get assistance from two people to help him to the “sick bay”.

55. After Mr Williams returned to the third floor he made several phone calls. I infer he contacted a superior within Optus, probably Cathy Taylor, who directed him to make a complaint to Drake. He called Drake. He obviously requested them to send someone to get George because two females from Drake attended the premises very soon after the attack. I infer that they came in response to a call made by Mr Williams before he had had any knowledge of George’s attack on Mr Wright (see Exhibit C pp 3 - 4[13] – [15]). When Mr Dee told him what had happened he again contacted Ms Taylor and a decision was then made to call the police.

The duty of care owed by Optus to Mr Wright

68. Optus says it owes no duty to Mr Wright except that owed by an occupier to a lawful entrant and Modbury is authority for the general principle that an occupier is not liable for injury to lawful entrants caused by the criminal acts of third parties on the occupier’s land: see also Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Rep 81 – 636.

69. Modbury derives from Smith v Leurs (1945) 70 CLR 256 at 262 where Dixon J (as his Honour then was) said:

It is … exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. (Emphasis added.)

70. As this dictum implies, exceptions to the Modbury principle fall into clearly recognised and established categories. In Modbury itself Gleeson CJ said at 265[26]:

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. (Emphasis added; footnotes omitted)

Hayne J put it this way (at 292 [110 – 111]):

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. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child (Emphasis added; footnotes omitted).

(Gaudron J agreed with the judgments of each of the Chief Justice and Hayne J)

71. In Ashrafinia, Heydon JA (as his Honour then was) said at [64]:

There is ample authority illustrating the "relationships" to which the High Court referred in which a party has a duty to protect another from the criminal conduct of a third.

(a) Employers must take reasonable care to protect their employees from the criminal acts of third parties whether on premises occupied by the employer … or in other places where the employee is carrying out duties for the employer …. This duty of employers flows from their duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding employees from unreasonable risks in the methods by which work is undertaken.

….

These exceptions can be tied back to the control criterion which in significant measure underlies the main principle. The relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee's interests inter alia because of the control which the employer has over the incidents of the relationship. (Citations omitted).

72. The employment exception to the Modbury principle extends by analogy to the TNT v Christie category: English v Rogers [2005] NSWCA 327; Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45. In the latter case Young CJ in Eq (as his Honour then was) said at [71]:

One class of case which can involve a special relationship where the duty to protect against violence in the workplace will arise is where the injured person is not, strictly speaking, an employee, but is so under the control of another person that they take up a relationship that is extremely close to that of employer and employee.

73. Basten JA reviewed this category of case in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167. His Honour stated the following principle (at [139]):

The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;

(b) the condition of plant or premises under the control of the third party, or

(c) the activities of others on the site, generally for the purposes of the third party’s undertaking or business.

Christie fell into the first category, because TNT “exercised day-to-day control over the plaintiff’s work activities, treating him to all intents and purposes the same as its employees as regards work on the factory floor”: TNT vChristie at [41] (Mason P).

74. On the finding I have made at [28] this case falls into that same category. Indeed, the same case may fall into more than one category: see Pareezer at [72] – [73]. That passage summarises English at [82] where Mason P identified two overlapping bases for the existence of a duty owed by the hotel to the employee of its independent cleaning contractor:

1. The hotel’s obligation to co-ordinate the activities of employees attracting the principles discussed in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, and Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; and

2. The TNT v Christie category.

Stevens and Leighton Contractors fall into Basten JA’s third category. In my judgment, that category is also applicable here as Optus’ operations carried out at its Gordon site included the need to co-ordinate employees of more than one temp agency as well those of its own employees. Indeed, in the very circumstances in which Mr Wright was injured, Optus was supposed to be coordinating an employee of IPA, Mr Wright; an employee of Drake, George; and its own employees, Mr Williams, Mr Dee and Ms Hedges. As George performed work for Optus under the same type of arrangement as Mr Wright it is also correct to say that Optus had power to assert control over George as discussed by Hayne J in Modbury.

75. In English at [87] Mason P said:

The relationship between the Hotel and the cleaners was, in my view, so closely analogous to that of an employer, at least as regards safety in the workplace, as to generate a duty of care that was not trumped by glib citation of Modbury.

76. The same is true here. I reject Optus’ submission that the duty question in the present case is governed by the Modbury principle. Rather this case falls into the employer/employee exception to that principle as explained in English and Pareezer.

Content of the duty owed

77. 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. The question of whether there was such a risk and whether a reasonable quasi-employer in the position of Optus would have taken precautions against it will be dealt with when I consider the question of breach.

78. Moreover, the nature and content of the duty of care is informed by the additional salient feature that each of George and Mr Wright were employed to work for Optus by different agencies. This circumstance required Optus to exercise reasonable care in co-ordinating their interactions for the avoidance of a risk that one may cause the other harm.

79. The first qualification to this formulation arises out of the judgment of Gummow J in Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 347 [49] ff, a road authority case. His Honour said:

… one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care (original emphasis).

This principle must be borne firmly in mind throughout, but it is well nonetheless to remember, as Heydon JA said in Ashrafinia at [65] the law is “exceptionally solicitous for the employee’s interests”. As the plurality said in McLean v Tedman (1984) 155 CLR 306 at 313:

Accident prevention is unquestionably one of the modern responsibilities of an employer … And in deciding whether an employer has discharged his common law obligations to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

(See also Bankstown Foundry Pty Ltd v Brastina (1986) 160 CLR 301 at [308] – [309])

Part 3 Civil Liability Act 2002

80. The second qualification relates to the final matter relevant to the duty question argued before me: the application of the provisions of Part 3 CLA. Optus argued that the case is governed by the provisions of s 32 CLA. It is appropriate to set out this provision in full:

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.

81. Optus correctly argued that the effect of s 32(1) was to add an additional condition which must be satisfied by the plaintiff to establish the existence of a duty of care “not to cause the plaintiff mental harm”. That additional condition is that 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”. Interestingly, the reference is to the defendant, not a reasonable person in the position of the defendant. The “ought” and the context suggests the reference is to a reasonable person in the position of the defendant.

82. Optus also pointed out that the provision applies to cases of both pure mental harm and consequential mental harm as defined by s 27 CLA. However, it is not quite right to say, as Optus argue, that “it is therefore unnecessary to determine whether or not this is a case of pure mental harm” (MFI 8 [21]). Section 32(2) applies only to cases of pure mental harm and s 32(3) applies to cases of consequential mental harm.

83. There is no issue that Mr Wright is suffering from a recognised psychiatric illness. As I have said, Optus did not seek to contradict the medical evidence of the plaintiff. In August 2001, he was initially diagnosed as “suffering from a severe anxiety disorder with secondary depression which has developed since the distressing incident at work on 15 March 2001 in which he was physically attacked.” (Report of Dr Peter Sternhell 28 August 2001; Exhibit F1). By 20 December 2001 (Exhibit F5) Dr Sternhell concluded that Mr Wright satisfied the diagnostic criteria for post-traumatic stress disorder (“PTSD”). This has remained the preferred diagnosis with Dr Peter Klug expressing the view, on 28 June 2011 (Exhibit Z1), that Mr Wright suffered from chronic and severe PTSD. I accept this evidence. This conclusion is also supported by the opinion of Dr Gordon RW Davies in his report of 24 June 2009 (Exhibit R1). It is the opinion of each of the psychiatrists that the PTSD is caused by the incident of 15 March 2001. This incident involved a physical attack upon Mr Wright and he suffered physical injuries from the blows struck by George. 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.

84. I accept the argument of Mr RA Cavanagh SC and Mr CJ Callaway for Mr Wright that s 32(1) appears to reinstate the common law as it was thought to be, at least in this regard, before the decision of the High Court of Australia in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317. That position was summarised by McHugh J in his dissenting judgment at 358[114] – 360[118]. His Honour said:

It is in accord with principle, therefore, to hold that, in the absence of a pre-existing duty-relationship, a person has a duty to take care in a nervous shock case only when a reasonable person in the defendant's situation would realise that his or her conduct might cause psychiatric illness. What is reasonable is to be judged by reference to the community's general knowledge of the effect of stressors on ordinary persons of normal fortitude.

It is for the tribunal of fact - be it judge or jury - to determine whether the defendant ought to have reasonably foreseen that his or her conduct might cause a person of normal fortitude to suffer psychiatric injury. It is not a matter for expert evidence.

…

Once the plaintiff establishes that a person of normal fortitude would have suffered psychiatric illness as the result of the defendant's action, the defendant must take the plaintiff as he or she is. The defendant's liability extends to all the psychiatric damage suffered by the plaintiff even though its extent is greater than that which would be sustained by a person of normal fortitude.

Accordingly, where the existence of a duty in a nervous shock action turns on reasonable foreseeability, the plaintiff must prove that the defendant should reasonably have foreseen that his or her conduct might cause nervous shock to a person of normal fortitude.

85. It was argued that the onus lay upon Optus to negative the statutory condition. But in my opinion, this is not correct. The construct of the statutory language is different from say s 5L (a person is not liable) or s 5O (a person … does not incur a liability). Where it is in issue, it is always for the plaintiff to satisfy the Court about the existence of a duty of care: Dederer at [18] (Gummow J); and of all other necessary conditions of the existence of a cause of action: White v Johnston [2015] NSWCA 18 at [87]-[89]; [107]-[108]; [125]. The language of the section, as I have said, creates an additional condition to be satisfied before a duty is said to exist. The language and syntax do not suggest the existence of a rebuttable presumption favouring the plaintiff. It is for the plaintiff to make good the statutory condition.

86. The question is one for the judge not experts, and is to be decided “in all the circumstances of the case”. In the present case s 32(2) and (3) are both relevant. 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.

87. The question is one of foresight, not hindsight. Like all questions of reasonable foreseeability it must be decided without the benefit of hindsight, looking forward without knowledge of the precise circumstances in which the harm was inflicted, and as though it had not occurred.

88. 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 (1970) 125 CLR 383. 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. These observations, it seems to me, eloquently bespeak “sudden shock”. The medical evidence to which I have referred shows that the mental harm suffered by Mr Wright resulted from that sudden shock. In saying so I am not eliding impermissibly into hindsight reasoning; rather I am applying the criteria fixed by s 32(2) to answer the question posed by s 32(1).

Did Optus breach the duty owed

89. Whether Optus breached the duty owed is to be determined in accordance with the provisions of s 5B CLA, the provisions of which are well known and it is not necessary for me to set out the section in full. It is well established in New South Wales that s 5B, particularly the condition that the risk be “not insignificant” (s 5B(1)(b) “imposes a more demanding standard” than that required by the common law as stated in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, but “not by very much”: Shaw v Thomas [2010] NSWCA 169 at [44] (Macfarlan JA). With respect I agree with Garling J that “not insignificant... is intended to refer to the probability of the occurrence of the risk”: Benic v State of New South Wales [2010] NSWSC 1039 at [101] (see his Honour’s analysis at [87] – [100]).

90. At common law “a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk”: Wyong Council v Shirt at p 48 (Mason J). The degree of probability of the occurrence of the risk was one of the factors required to be considered in deciding “what a reasonable man would do by way of response to the risk”. Section 5B requires the question of whether the risk “was not insignificant” to be considered as a separate question in addition to the questions of reasonable foreseeability, and the response of the reasonable man (dealt with in s 5B(1)(c)). Although the sentence I have quoted from p 48 of Shirt should not be taken out of its context, it would seem that a risk of injury which is remote in the sense that it is extremely unlikely to occur may be reasonably foreseeable, but not “not insignificant”. As Macfarlan JA observed in Shaw this may not change much. But the difference must be borne firmly in mind because application of the statutory language is “of first importance”: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420.

91. The appropriate starting point is the identification of the relevant risk of harm for the purpose of s 5B. The modern law of negligence places emphasis upon the accurate identification of the risk of harm now required to be analysed through the lens of s 5B: Dederer at [59] (Gummow J). 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. This, in my judgment, is not to adopt hindsight reasoning nor does it offend the principle expressed by Bryson JA in Doubleday & Kelly [2005] NSWCA 151 at [11]:

The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury.

92. Expert Evidence

93. Before going on to analyse the position by reference to the requirements of s 5B, I should say that the parties introduced a deal of expert evidence going to various breach questions. They were, Dr Roberts, a psychiatrist, Dr Caponecchia, an ergonomist trained as a psychologist and Ms Armour also an ergonomist but trained in biomechanics. Each of them gave evidence in writing and orally. Dr Caponecchia and Ms Armour conferred and produced a joint report but gave their oral evidence separately.

94. I wish to say with respect to each of the experts, I did not find their evidence pertinent to the resolution of the issues concerning negligence in this case. There are a number of reasons for this. First, the reasoning of all of them was infected by impermissible hindsight reasoning; secondly, in the case of the ergonomists, the questions they were asked to consider invited the issues to be approached on a much more general level of abstraction than that I have determined is appropriate; and thirdly, again, in the case of the ergonomists much of the debate between them was about whether an employer in the position of Optus would have, by 15 March 2001 adopted written operating procedures for dealing with a perceived risk of violence in the workplace as some organisations, not many, had by then.

95. Jumping ahead, this last issue struck me as being affected by an air of unreality. 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.

96. I admitted Dr Roberts reports over the objection of Counsel for the plaintiff (Exhibit 1D5 and 1D5(2)). It is apparent that for the purpose of expressing opinions he was provided with a good deal of information that was never tendered (see Wright v Optus Administration (No 6) [2013] NSWSC 1719). The unavailable material included a statement made by George’s father about how he appeared when he dropped him at the station on his way to work on 15 March 2001, and detailed admissions made to the police during George’s record of interview.

97. Dr Robert’s opinion is as follows:

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 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.

98. In his second report (5 December 2010, Exhibit 1D5(2)) he offered the opinion, again based on material not in evidence that “George’s presentation was classical of a schizophrenic illness with command hallucinations and a delusional belief system”. He thought that George had sufficient cognitive function “to realise that he needed to conceal his thoughts and intent”.

99. Of course, not all of the information available to Dr Roberts was available to any of the active participants on the roof on 15 March 2001. It was not available to Optus more generally. But Ms Hedges certainly thought that George’s behaviour was consistent with an abnormality of the mind, perhaps referrable to drug intoxication. An important part of Dr Roberts’ opinion was the assumption he made that the abnormal behaviour took place “in the moments prior to his attack” (21.50T). That is not correct. There is no precise time line disclosed in the evidence, but Ms Hedges noted George’s absence at 9:15 am and the police were contacted by Ms Taylor who Mr Williams spoke to, at 11:19 am. They arrived at the scene at 11:34 am (Exhibit 1D7). Ms Hedges commenced to look for George at about 9:30 am. She looked elsewhere before locating him on the roof. All of the events which I have described in my findings above including the aberrant behaviour witnessed on the roof first by Ms Hedges and then by Mr Williams and Mr Dee probably occurred over a much longer period than “moments” or even a few minutes. The period was perhaps as long as 1 hour before the attack on Mr Wright.

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 282.25T he said:

I was aware he presented with pinpoint pupils and was moving about in an agitated matter 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 283.40T:

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).

And at 283.50T

And there are numerous articles – I can produce one – which indicate that the predictive tests used by some psychiatrists in the forensic situation to predict future behaviour are unreliable. And it is a mythology that violence can be predicted. I think the best predictor of future violence is past violence and if I am asked to put behaviour in a patient with a history of violence that is the standard answer I give. On clinical grounds the best predictor of future violence is past violence.

101. That Dr Roberts was concerned with predictability is also made clear by his answers to my questions at 293.20 – 294.5T.

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.

Q. Just in terms of that inappropriate behaviour, a number of difference expressions have been used in the evidence, inappropriate behaviour, abnormal behaviour, disturbed behaviour. In the circumstances of this case as you've assumed them to be from the material you've read, are they interchangeable expressions?

A. Yes, your Honour.

Q. And just taking up something you said that disturbed behaviour, whether it's due to a perception that a person is on drugs or otherwise, could reasonably give rise to apprehension, is that correct in the observers?

A. Yes. I think whether the observer is lay or professional that certain behaviours of people that psychiatrists deal with can give rise to apprehension and unease simply because of the type of behaviour that one is dealing with.

Q. I think you agreed with Mr Cavanagh that that apprehension of which you spoke extended to an apprehension of violence or a concern for safety and that concern for safety, would that be both a concern for the safety of the person acting abnormally and also for a person who might come in close contact with that person?

A. I think that would have to be asked your Honour of the individual person who was experiencing it. Some people might be worried about themselves and the well‑being of the disturbed person. Other people may predominantly feel concern about themselves, and I suppose certain other people may feel concerned for the person behaving abnormally as a primary concern. But I think it's all a mixture unpredictable behaviour gives rise to concern as a normal response in those both lay and professional who observe behaviour.

102. He agreed in cross-examination that the type of aberrant behaviour evinced by George was significant. At 288.50T he said:

Disturbed behaviour causes apprehension bystanders (sic). I think it’s as high as you can put it. You can’t infer any sequelae arising from that.

103. He also agreed that the type of behaviour evinced by George may induce in others “an apprehension or a feeling of violence or concern for safety” (289.10T). I interpolate that his evidence was that about one in three victims of a violent attack will suffer a post-traumatic stress disorder (291.5T).

104. To the extent to which Dr Roberts was assessing predictability of the attack which actually occurred with the benefit of the knowledge of it and a greater range of surrounding facts than were available on the day, I put it aside as being not relevant. On the other hand, his opinion about aberrant behaviour giving rise to an apprehension of violence in bystanders has some relevance. However, this is perhaps to say no more than would accord with the general experience of life; perhaps it has greater authority coming from an expert in the workings of the human mind. Relevant too, is his opinion about the incidence of mental harm following a violent attack.

The ergonomists

105. Dr Caponecchia and Ms Armour in their joint report of 9 September 2013 (Exhibit 1D6) said of the events which occurred at Optus’ Gordon site on 15 March 2001 that “it was difficult to see that one of the participants would be physically violent with another”. The reference to participants was a reference to persons undertaking call-centre training. As I have said, this pitches the enquiry at too general a level of abstraction. They also said that “the act of attempted homicide is rare in a training environment”. So much may be accepted. However, again the level of abstraction is too general.

106. So far as the aberrant behaviour on the roof is concerned, Ms Armour expressed the view “staff should have sought outside assistance to respond to the security threat and it is not clear why they opted not to other than they had no firm procedures that personnel were trained in”. With respect, Dr Caponecchia did not address this issue directly in his report (see [53] – [63]) other than to say “it is difficult to assess the amount of time over which events took place, and the extent to which whether time, uncertainty and heightened emotions may have affected the judgments made”.

107. At 338.40T Dr Caponecchia thought it “fair” to say that he had approached his task by considering the precise events which occurred and looking backwards to see how they could have been prevented. He agreed on the basis of assumptions consistent with my findings above that a person in the position of Mr Williams ought to have obtained guidance as to how the situation should be dealt with and in the circumstances “an occupational health and safety manager” ought to have considered contacting external agencies including the police.

108. At 350.5 - .35T he was asked a hypothetical question based upon the evidence which underpins the findings I have made about what occurred on the roof and expressed the opinion that on those assumptions Optus should not have required Mr Wright “to go to the rooftop to deal with Nathaniel George”. He repeated this evidence at 353.25 - .35T.

109. Ms Armour gave evidence to the same effect at 361.50 – 362.20T. She said before police or other external agencies are called in “there needs to be a judgment made about the nature and extent of the risk of violence”: 367.35T (see also 368.10T).

Was the risk of personal injury including mental harm reasonably foreseeable?

110. The first question is whether the risk I have identified was reasonably foreseeable. The question of whether the relevant risk is reasonably foreseeable is not a pure question of primary fact. It involves “questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not”: Jaensch v Coffey [1984] HCA 52; 155 CLR 549 at 571 (Brennan J). His Honour said the question is a matter of judgment for the judge. Being a matter of judgment, the normative values which underpin the law of negligence, and are now informed by the purposes of CLA which must be applied in making the relevant decision. The approach of Mason J in Shirt continues to inform this limb of the inquiry. The question is whether there was a real risk, being one that is not far-fetched or fanciful. Moreover, it remains the law that it is unnecessary “for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable”: Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 – 121; Shaw at [43].

111. The question, of course, relates to a risk to Mr Wright, an ascertained person in whom George had expressed interest whilst in the grip of his aberrant behaviour. It needs to be borne in mind that Mr Wright is a primary victim and the restraint sometimes brought to bear when answering this question in the case of secondary victims is not relevant.

112. The time at which the question is to be posed is also relevant. In my judgment that time is when Mr Williams and Ms Hedges had the conversation about, “Who’s Glen”. The question has to be asked and answered considering all they then knew about George’s aberrant behaviour and bearing in mind that Mr Williams was still in the process of working through how to deal with the situation which, if I may put it this way, had to be dealt with.

113. 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. Optus, of course, is a corporation which can only act through its officers and employees. It is clear that it fell to Mr Williams in his capacity as a team leader to manage the situation with George that had developed on 15 March 2001. Although, in the process, he consulted others in the company, including Ms Taylor, the decisions he made were essentially decisions of Optus. As I have said, he was the team leader, he was Ms Hedges’ superior and the person she turned to for guidance and assistance when she became aware of George’s aberrant behaviour. He assumed responsibility for managing the situation including causing enquiries to be made to ascertain which agency supplied George’s services; liaising with that agency; and consulting Ms Taylor. 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 [1972] AC 153 at [171] (Lord Reid) and [187] (Viscount Dilhorne). 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.

114. Tesco Supermarkets Ltd v Nattrass was concerned with the criminal liability of a corporation for a statutory offence. In Director General, Department of Education & Training v MT [2006] NSWCA 270; 67 NSWLR 237 at [19] Spigelman CJ said:

… identifying the relevant rules of attribution is a process that must be separately conducted in each particular context. For example, the rule will not be the same when a court is considering vicarious liability for a tort committed by a person associated with a corporation, as a rule that establishes criminal liability of a corporation for the conduct of a person. The policy issues that must be considered in every context differ considerably.

115. (See also North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240).

116. Spigelman CJ made reference to Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [42]. 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. 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].

167. Dr Gordon R.W. Davies took over the treatment of Mr Wright on 7 September 2007. As I have already said at [82] he is also of the view that Mr Wright suffers from PTSD. He also continued to see his GP, Dr. McLeod and a psychologist Mr Weaver. Dr Davies summarised the position in March 2011 in the following terms: (Exhibit R2, p 7)

Mr Wright is a 29 year old man who has suffered from a severe post-traumatic stress disorder following an incident at work in 2001. Since that time he has manifested ongoing and severe psychiatric symptoms and has had substantial problems in coping with day to day life.

I am unable to comment properly on his progress in the initial 6 years after the incident, but can see a slight improvement over the last 4 years. However, there is still a long way to go before he can be considered to have a reasonable level of emotional functioning.

169. Dr Peter Klug examined Mr Wright at the request of his solicitors on 1 June 2011. He has provided various reports which are Exhibit X. As I have outlined, he agrees that the primary diagnosis is chronic and severe post-traumatic stress disorder caused by the attack of 15 March 2001. He agreed with Dr Sternell that Mr Wright is not suffering from a border-line or narcissistic personality disorder. He said at page 8 of his report:

Given the severity of his symptomatology, however, I find it difficult to come to the conclusion that his is suffering from a personality disorder, although I am willing to accept that he may have traits along this spectrum (sic).

Mr Wright is now a chronically and severely dysfunctional man who leads an isolated and unproductive life. He is on multiple psychotropic drugs, which, to my reckoning should be rationalised, but I acknowledge that he has been a difficult person to effectively treat and manage.

170. It is clear that his chronic post-traumatic stress disorder and poly-drug abuse, and dependence have been directly caused by the relevant incident in March 2001. Dr Klug regarded Mr Wright as chronically and severely disabled.

Non-economic loss

171. In my judgment this evidence which I have recounted and accept justifies a conclusion that Mr Wright’s psychiatric injury is in a near-catastrophic category. His previous hopeful life having been virtually destroyed by the consequences of the attack on him. Some doctors such as Dr Davies and Dr McLeod have expressed some small hopeful degree of optimism for the future. Given the course of events of the last 14 years, I cannot share it. It seems to me that even if he improves to the extent where his life becomes more organised and ordered he would be unlikely to function in anything like a normal way.

172. From the evidence of his father and his interaction with his family, I think it extremely unlikely that he will ever be able to form a permanent meaningful and satisfying domestic partnership. The quality of life that is left to him will relate to him living an isolated life in country New South Wales where at least he will have the comfort and enjoyment of working with his horses. Having regard to the nature and severity of his injury, the pain and suffering he has endured, the loss of amenity of life and loss of enjoyment of life he has gone through, the severity of this case of non-economic loss is 75 per cent. This equates to damages of $426,000.

Past Economic loss

173. There was no issue that Mr Wright has in the past suffered a total diminution of his earning capacity. Indeed, the parties were able to agree upon the amount of his damages for the past based upon an average of the figures published by the Australian Bureau of Statistics for average weekly earnings of adult males in full time employment in New South Wales over the pre-trial period. The agreed figure is $1,004. I have adjusted the amount of the parties’ agreement to take account of the time during which my decision has been reserved. The total number of weeks pre-judgment on my calculation is 706. The amount I allow is $708, 824.

Interest on past economic loss

174. Interest on past economic loss is recoverable in accordance with s 18 CLA. As Mr Wright has been in receipt of weekly payments of compensation throughout the whole of his period of incapacity it is necessary to deduct the amount paid from the figure allowed for past economic loss for the purpose of calculation of interest. I have increased the figure agreed at trial of $267,690.04 to take account of the additional period of 65 weeks during which my judgment has been reserved. I have used the rate of $452.60. This produces an additional amount of $29,419, bringing the total of weekly payments of compensation, on my calculation, to $297,109.04. Subtracting that figure from the amount I have allowed for past economic loss produces a subtotal of $411,715. This is the starting point for the calculation of interest. Conventionall, to take account of the accrual of this figure over the full period, I have divided that figure by 2 to produce a result of $205,857.50. The parties have agreed that the appropriate rate of interest, adopting an average over the period, is 5.21 per cent. There is a dispute between them about the period over which interest should be allowed.

175. The primary limitation period in respect of Mr Wright’s cause of action expired on 15 March 2004. Proceedings were not commenced until 11 March 2009. The defendant argues that I should exercise my discretion to deny the plaintiff interest during the period between the expiry of the limitation period and the commencement of proceedings. The plaintiff argues that I should maintain the conventional approach which is to reason that whatever the delay, the plaintiff has been kept out of his money until judgment and the defendant has had the benefit or use of it during the same period. Accordingly, it is fair that interest run for the whole period since the cause of action arose.

176. Given the long delay, which is probably explained by the plaintiff’s severe psychiatric injury, I think there is force in the defendant’s argument. Although the plaintiff is at a very significant disadvantage in advancing his own affairs, he was able to consult solicitors during the limitation period. Of course, whether he was able to act on their advice and promote his own interests is quite another matter. As I will explain later, on the evidence of Dr Davies and Dr Klug, I am persuaded, on balance, that he was not. Having said that and bearing in mind that interest is compensatory, I think it unduly punitive to mulct Optus in interest for the whole period. The annual rate of interest is $10,725. I think it appropriate to allow interest for 10 years. The amount is allowed is $107,250.

Past employer’s superannuation contribution

177. The parties agree that I should apply the conventional figure of 11 per cent of past economic loss. On my calculation the allowance is $77, 970.64.

Past out of pocket expenses

178. The past out of pocket expenses have been paid by IPA’s workers’ compensation insurer. Until December 2013, they had totalled $412, 262.32. Optus agreed that this amount should be allowed. Because this figure may have increased over the period during which judgment was reserved. I will grant liberty to the parties to apply in respect of all of my calculations lest they are erroneous.

Future economic loss

179. Optus accepts that currently and most probably the plaintiff remains totally incapacitated for the rest of his working life. To express it another way, Optus accepts that the plaintiff suffers from a total diminution of his earning capacity. However, two issues are advanced. First, it is said that I should only allow damages up to the “current superannuation preservation age of 60” rather than award damages to age 67 at which time Mr Wright will become eligible for an age pension. Secondly, it is argued that one should allow for the possibility that Mr Wright will improve sufficiently to return to some form of remunerative work. This should be achieved by increasing the conventional discount for the vicissitudes from 15 per cent to 25 per cent.

180. I reject these arguments. There is no reason to suppose that but for the negligence of the defendant, Mr Wright would have left the workforce at age 60. He is most likely to undertake work of a clerical nature rather than hard manual work, the wear and tear of which might have forced him out of the workforce prematurely. Moreover, one is entitled to know that as people live longer so too they work longer. This trend is encouraged by current governmental policy. It is not only judges who in the future can be expected to work into their seventies. There is no reason to find that Mr Wright would have retired before reaching the age of entitlement to the age pension.

181. Dr McLeod and Dr Davies in particular 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. Moreover, there was evidence elicited in cross-examination that as part of his compliance with the requirements of rehabilitation undertaken in accordance with his obligations under the workers’ compensation legislation, Mr Wright had put forward the idea that he could conduct a small business fabricating and selling horse and dog blankets. Apparently he has skills in this area and has made such articles from time to time over the years. However, nothing of a business nature came of it.

182. Dr Klug, whose opinion I prefer expressed the following view in his report of 28 June 2011:

He appears chronically impaired and unlikely to re-enter the open labour market in the foreseeable future. Taking into account his education, training and experience, the prospect of his returning to appropriate employment is negligible and I regard him as chronically and severely disabled.

183. I accept this evidence.

184. Reluctant as one is, as Dr McLeod put it, to “scrap heap” a young man, I regard the prospect of Mr Wright returning to financially productive work as speculative.

185. The parties agreed that I should approach the calculation of the allowance using as a starting point the same statistical information. The figure agreed is $1,184 per week net. I have taken it upon myself to check the current figure by reference to the Furzer Crestani Handbook. The figure is $1,620.30 gross. Making an allowance for taxation in accordance with the information provided in the same source, I have arrived at a net figure of $1,207. The 5 per cent multiplier for 33 years to age 67 is 855.7, producing a figure of $1,032,830. The amount to be deducted for the vicissitudes at the conventional rate of 15% is $154,924.50. The allowance is $877,905.50.

Future employer superannuation contributions

186. The parties agree that the conventional rate is 14.4 per cent, producing an amount of $126,418.

Fox v Wood allowance

187. The parties have agreed this allowance in the sum of $21,427.64.

Future out of pocket expenses

188. The parties are not agreed about future out of pocket expenses for medical treatment and the like. As can be seen from what has been paid so far, Mr Wright’s treatment has proved very expensive. The relevant prescription appears at page 8 of Dr Klug’s report of 28 June 2011. This prescription translates into a weekly amount of $515, which Mr Wright claims for the remainder of his expected life, a period of 52 years on the medium life expectancy tables. The defendant challenges this approach, but has no evidence of an alternative prescription. Notwithstanding this, I think there are aspects of Dr Klug’s prescription which are unduly pessimistic. For instance, he estimates that Mr Wright will require hospitalisation every year for a period of 2 to 4 weeks and needs to see a psychiatrist on a fortnightly to monthly basis. Mr Wright has not been hospitalised since 2009, as far as I can tell. But I do not doubt that he will require hospitalisation from time to time in the future. His condition is severe and he will need, I find, lifelong ongoing treatment. I do not think better than a broad-brush approach can be taken. I allow one consultation with a psychiatrist per month at $350 per session, one consultation with a psychologist per month at $180, $200 per week for ongoing medication, and an additional $5,000 a year to take care of GP visits for prescriptions and the prospect of hospitalisation. Annualised the figure is $17,260 which converts to $331 per week. The 5 per cent multiplier for 52 years is 984.9 and the total allowance is $326,001.

Past voluntary care

189. The plaintiff claims damages under s 15 CLA for gratuitous attendant care services. There is no doubt on the medical evidence that as the plaintiff is so dysfunctional his need is great. A comparatively modest amount of 10 hours per week is put forward as an average. There are difficulties with this. As counsel for Optus point out, s 15(2)(c) imposes two thresholds, both of which must be satisfied. They are generally referred to as an intensity threshold and a duration threshold: see Hill v Forrester [2010] NSWCA 170. I accept the argument of Optus that the effect of Hill v Forrester is that “unless the evidence establishes that the plaintiff was provided with gratuitous attendant care services for a period of at least 6 hours per week for contiguous period of at least 6 months, the plaintiff is not entitled to any damages for gratuitous attendant care services at all. If that threshold is satisfied, he is only entitled to such damages for any period in which such services were being provided for at least six hours per week.”

190. Moreover, it seems to me that to be entitled to any damages at all under s 15, in contra-distinction to the common law, the evidence must establish that the need has in fact been satisfied.

191. There are a number of problems about these matters in the plaintiff’s case. First there is no clear evidence at all of continuous provision of services for any period of 26 weeks at any time. This is in the context of the persons who have provided assistance from time to time is the plaintiff’s parents. Initially, the plaintiff was living in Sydney and them on the South Coast. Frequently up until 2009 the plaintiff was hospitalised. Moreover, and most significantly the plaintiff’s conditions renders him volatile and he argues with his parents frequently. This much is established by the evidence of Mr Stuart Wright. His evidence was that he and his wife would take their son to appointments and the like and that from time to time “if he will let us in we usually clean the house up a bit”. Often if they ring ahead, their son will say he does not want to see them. When they are there, something will “touch him off” and he becomes quite abusive. I rather had the impression that because of these relationship difficulties, there may be at least weeks, if not months, when they had little contact with their son because of his volatility. As I have said, the claim is a modest one and I am satisfied the plaintiff’s need is great, but I am not satisfied that the evidence makes out a case which crosses and satisfies the statutory thresholds. I make no allowance for this head of damage.

Future Care

192. The future is in a slightly different category. The plaintiff gave evidence, on which he was not challenged, that if he had someone available to him and he could afford it, he would pay someone to do it. He said “I wouldn’t choose to live in filth” (42.10T). As I have said, the difficulty with his relationship with his parents, notwithstanding their willingness to look after him, is his volatility. I expect that would be different with a paid provider. The amount claimed is 10 hours per week and the rate is agreed at $35 per hour. I am satisfied that the largest problem is his psychiatric injury which makes him unmotivated and disorganised. For this reason he requires help with housework, cleaning, washing and perhaps some shopping to assist to make sure there is food in the house. Ten hours per week is a modest amount for this. As I have said the 5 per cent multiplier is 984.9 and the weekly allowance is $350 and the total allowed $344,715.00.

Fund Management

193. Since my decision was reserved, the decision of Nominal Defendant and Garikiotis [1996] HCA 53; 186 CLR 49 has been revisited by the High Court of Australia in Grey v Richards [2014] HCA 40. The unanimous court stated the principle in the following terms at [4]:

… in case 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 awarded as damages, expenses associated with obtaining that assistance is a compensable consequence of the plaintiff’s injury

194. I am satisfied that the plaintiff’s psychiatric injury falls into this category. As I have said, Dr Klug described Mr Wright as a chronically and severely dysfunctional man living an isolated and unproductive life. Dr Davies, in his report of 24 June 2009, expressed the opinion that Mr Wright had suffered from a mental impairment “that has impeded the management of his affairs in general and in particular in seeking legal remedies related to his trauma”. In my judgment nothing has changed since then. I regard this condition as a relevant impairment of Mr Wright’s intellectual capacity such as to put him in need of assistance. This is borne out by his father’s evidence. Mr Stuart Wright said that his son was irresponsible and prone to spontaneous irrational decisions. He would be inclined to give away money he had under his control (271.25T). It was the father’s view that any damages should be controlled by someone outside the family (272.45T). The parties agreed at the trial that if I was persuaded to award a sum for funds management, I should adopt the rates at page 22 of the Furzer Crestani Handbook involving no quantification of the cost of fund management upon fund management costs. Given this agreement I do not propose to further consider the effect of the decision in Grey v Richards.

195. My calculations are: Total damages for all other heads $3,407,346; deduct workers’ compensation assumed to be $709,373.36; subtotal $2,697,975; add back to total damages $443,940 for fund management; grand total $3,851,286.

Summary of Damages

Non-Economic Loss 75%   $426,000.00

Past Economic Loss   $708,824.00

Interest on past economic loss   $107,250.00

Past employer superannuation contributions   $77,970.74

Past out of pocket expenses   $412,262.32

Future economic loss   $877,905.50

Future employer superannuation contributions   $126,418.00

Fox v Wood   $21,427.64

Future medical expenses   $326,001.00

Past care   Nil

Future care   $344,715.00.

Fund management   $443,940.00

Total damages   $3,851,286.00

196. I propose to pronounce orders in final form today in Mr Wright’s claim against Optus. However, I will delay the entry of those orders for a period of 2 weeks for a number of purposes. First, this will enable the parties to check my calculations and to make application to vary my figures in the event of miscalculation or to take account of workers’ compensation actually paid currently. Secondly, it will allow time for the application of s 23 CLA. The parties will have the opportunity to consider whether to negotiate a structured settlement and for that purpose they will need the opportunity of considering the terms of the award of damages I propose to make when I enter final orders. Thirdly, on the findings I have made, Mr Wright may be a person who is liable to be subject to an order that his estate be subject to management under New South Wales Trustee & Guardian Act 2009 (NSW). In those circumstances, I am required to notify the New South Wales Trustee of the terms of the award I propose to make. Delay in entry of the orders will allow time for all of these necessary steps to be taken.

197. My orders are:

1. Judgment for the plaintiff against the first defendant in the sum of $3,851,286.

2. Under s 77(2) Civil Procedure Act 2005 (NSW), I direct that the judgment money is to be paid into Court and to be held by the Registrar pending an application for either management under New South Wales Trustee & Guardian Act 2009 (NSW) or an order for payment under s 77(3) Civil Procedure Act 2005.

1. Direct the Registrar to inform the New South Wales Trustee & Guardian of the terms of the award I propose to make in accordance with s 23(3) Civil Liability Act 2002.

2. Judgment for the second defendant on the first defendant’s cross claim.

3. Declare that under the provisions of s 151Z(1)(d) Workers’ Compensation Act 1987, the first defendant is bound to indemnify the second defendant for all amounts paid to, for or on behalf of the plaintiff under the 1987 Act.

4. The first defendant to pay the plaintiff’s costs of and incidental to the proceedings forthwith after they have been agreed or assessed.

5. First defendant to pay the second defendant’s costs of and incidental to the proceedings forthwith after they have been agreed or assessed.

6. Under Rule 36.11 Uniform Civil Procedure Rules 2005 defer entry of the judgments and orders pronounced until further order.

7. List the matter for directions for Campbell J at 9:30 am Friday 20 March 2015.

8. Parties to have liberty to apply to be exercised by written submissions lodged with the associate to Campbell J no later than 4:30 pm 18 March 2015.

**********

Amendments

11 March 2015 - Paragraph [110] after the words "purposes of CLA" the word "which" should be added.

09 March 2015 - Hearing Dates has been amended to include 11, 12, 13, 14, 15, 18, 21 and 22 November 2013

Decision last updated: 11 March 2015