Attempted murder in the workplace – does a duty of care arise from unexpected and unforeseeable criminal conduct? – Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21

The plaintiff was employed by a labour hire company, IPA Personnel Pty Ltd, which supplied services to Optus Administration Pty Limited (Optus). In March 2001, the plaintiff was attending a training course for call operators held by Optus when another attendee, Nathaniel George (George), attempted to lift him up and over a roof balcony railing on the fourth floor of Optus premises at Gordon in an attempt to kill him. The attack was unprovoked and the plaintiff and George did not know each other before the week in which the attack took place.

On the third day of the course George was found in an unauthorised place on the fourth floor balcony. The course leader, Natalie Hedges (Hedges), reported this to her supervisor, Trevor Williams (Williams), who attended the balcony along with Paul Dee (Dee), where all three Optus employees observed George in a trance-like state, repeatedly asking for the plaintiff while pacing up and down the roof balcony.

The plaintiff reluctantly complied with a request of the employees of Optus to go to the roof and try to help. Without instructions of how to assist, the plaintiff approached George and spoke with him briefly while Dee and Hedges observed from 15 metres away. Williams left the balcony to get instructions from senior management. After encouraging the plaintiff to go close to the balcony’s edge to observe the view, George attempted to lift the plaintiff up and over the railing while punching and hitting him. Dee then intervened, allowing the plaintiff to escape.

At the time of the incident, the plaintiff was 20 years of age. The physical injuries he suffered were minor however he later developed chronic severe post-traumatic stress disorder (PTSD) and other psychological conditions.

In the initial judgment, the trial judge, Campbell J, concluded that the relationship between Optus and the plaintiff was analogous to that of an employer and employee and that duty extended to taking reasonable care to protect the plaintiff from the criminal acts of others in the workplace.

The trial judge also found that it was reasonably foreseeable that George might assault the plaintiff and that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken. The trial judge identified the risk of harm as the risk that George might inflict personal injury on the plaintiff, including mental harm, in the circumstances actually known to Optus employees, in particular Williams and Hedges, before the plaintiff was asked to attend the balcony.

The plaintiff was awarded over $3.9 million in damages.

Optus argued on appeal that they did not owe a duty not to cause the plaintiff mental harm, and it was not reasonably foreseeable that his life would be placed in peril. Optus also appealed with respect to aspects of the assessment of damages.

Given that the nature of the injury was pure mental harm, the majority of the Court of Appeal, Basten and Hoeben JJA (with Gleeson JA dissenting), disagreed with the trial judge’s finding as to a general duty before applying the terms of s 32 of the CLA, which requires attention to “the circumstances of the case”.

In applying s 32 of the CLA, the majority, determined that:

The majority found that the trial judge erred in identifying the event against which the foreseeability of mental harm was to be assessed as the risk that George “may assault” the plaintiff. They considered this an error which affected in a fundamental way the trial judge’s findings on the scope of duty and the question of breach.³

Hoeben JA held that the duty depended upon a finding (and there was none) that Optus should have foreseen the conduct of George in “seeking to kill the plaintiff”, which put the plaintiff’s life in peril, and that such conduct might cause a person of normal fortitude to suffer a psychiatric illness.⁴ Without a finding of foreseeability of such conduct, Optus was under no relevant duty to take reasonable care to prevent such conduct.

In addition, Basten JA considered the trial judge impermissibly aggregated the knowledge of Optus’ employees and then attributed that knowledge to the corporate employer for the purpose of demonstrating negligence on the part of Optus.⁵

It was held that it was not probable that any of Optus’ employees knew or should have known that George might attempt to kill or violently assault the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness.⁶ Consequently, none of the employees owed the plaintiff a duty of care with respect to mental harm and it followed that Optus could not be vicariously liable to the plaintiff.

As part of its appeal, Optus also submitted that the primary judge erred in his assessment of non-economic loss arguing an assessment of 75% was out of proportion to the evidence, and incompatible with awards in comparable cases. Ultimately, the majority of the Court of Appeal did not consider that issue as it held Optus did not owe any relevant duty of care to prevent psychiatric injury in the circumstances of the case. However, Gleeson JA dissented and in addressing the issue decided the primary judge's assessment of 75% of a most extreme case, whilst generous, should not be disturbed.

This case highlights the need to carefully consider the circumstances in which a person owes a duty of care to another with respect to 'mental harm'. Section 32 of the CLA imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely: