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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Wright by his tutor Wright v Optus Administration Pty Limited [2015] NSWSC 160
Case
[2015] NSWSC 160
Decision Date
CaseChat Overview and Summary
In Wright by his tutor Wright v Optus Administration Pty Limited, the plaintiff alleged that he suffered psychological injury as a result of an attempted murder by a co-worker, who was an employee of the defendant. The defendant was alleged to be vicariously liable for the co-worker's criminal act. The Court of Appeal was required to determine whether the defendant's liability for the co-worker's criminal act constituted an exception to the Modbury principle, whether the defendant owed a duty of care to the plaintiff, and whether the defendant breached that duty.
The court held that the defendant's liability for the co-worker's criminal act was not an exception to the Modbury principle. The court found that the defendant did not owe a duty of care to the plaintiff, as the plaintiff was contracted out from a labour hire company and the defendant did not have control over the plaintiff's employment. The court further found that the risk of personal injury, including mental harm, was not reasonably foreseeable and that the defendant's absence of control took the risk outside the scope of the defendant's liability. The court held that the plaintiff's claim was statute-barred under section 151Z of the Workers Compensation Act.
The court concluded that the plaintiff's claim for damages for negligence was statute-barred under the Workers Compensation Act. The court also found that the plaintiff's claim for damages for workers' compensation was statute-barred under section 151Z of the Workers Compensation Act. The court held that the plaintiff's claim for damages for psychological injury was not reasonably foreseeable and that the defendant did not owe a duty of care to the plaintiff. The court found that the plaintiff's claim for damages for workers' compensation was statute-barred under section 151Z of the Workers Compensation Act.