Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors. - [2019] NSWSC 507 - NSWSC 2017 case summary — Zoe

NSWNSWSC

Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors.

[2019] NSWSC 507

Supreme Court of NSW|2017-09-29|Before: Bellew J

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Source facts

Court

Supreme Court of NSW

Decision date

2017-09-29

Before

Bellew J

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

INTRODUCTION

On 9 February 2010, Gengiz Capar ("the plaintiff") was carrying out duties as a security guard at the Lidcombe Power Centre located at 92 Parramatta Road, Lidcombe ("the premises"). An alarm sounded and upon making enquiries, the plaintiff observed that a trolley had smashed through the doors of one of the shops located in the premises ("the February incident"). He called his supervisor, who told him to call the police. He did so, and from the plaintiff's point of view, nothing further came of the February incident.
On the evening of 17 March 2010, the plaintiff was again on duty at the premises, performing a shift that commenced at 10:00pm and ended at 6:00am the following day. Whilst he was in the security control room ("the control room") having a meal, he looked at a CCTV monitor and saw a person ("the intruder") outside the premises. The intruder then ran towards one end of the premises, before disappearing out of the range of the nearest CCTV camera.
The plaintiff decided to leave the control room to investigate the intruder's presence. He made his way to level one of the premises. Having reached that level, he waited for a short time before the intruder appeared in front of him, in possession of an axe. The plaintiff then identified himself as a security guard, in response to which the intruder said to him: "I'm going to kill you."
The plaintiff immediately ran back to the control room and locked himself inside before calling the police. The police attended and the intruder was later apprehended. I will refer to the circumstances surrounding the intruder's presence on the premises as "the subject incident".
It is the plaintiff's case that the subject incident occurred as a consequence of the negligence of the three defendants. He asserts that as a result, he has suffered chronic Post Traumatic Stress Disorder and associated Depression. He also asserts that he continues to suffer ongoing psychological sequelae, and that he has been rendered permanently unfit for any form of employment. He does not allege that he suffered any physical injury. Each of the defendants has denied liability and a number of cross-claims have been filed.

[10]

THE PROVISION OF SECURITY SERVICES AT THE PREMISES

A document entitled "Services Agreement" [1] ("the agreement") between BPG and SPG forms part of the evidence before me. SPG's address is nominated in the agreement as being care of ROB. The agreement relates to the provision of security services at the premises. The second page of the agreement includes the words "Proposal July 2009".2 BPG is referred to as the "provider", and SPG as the "customer". Clause 7 of the agreement provides that BPG would supply "security services" to SPG, for which SPG was required to pay BPG specific rates of remuneration. The agreement is expressed to commence on 1 July 2009, [2] and to conclude on 30 June 2012. [3] It therefore covers the date of the subject incident.
The copy of the agreement which is in evidence before me is not signed. There is no other evidence which establishes that the agreement, or any other document in a similar form, was ever executed between SPG and BPG.
There is, however, other evidence which indicates that BPG provided security services at the premises pursuant to some form of agreement with SPG. That evidence includes a document entitled "Work Order 5068 Approval for Works" [4] ("the Work Order") which is dated 3 December 2007 and addressed to BPG. It is under the hand of Gary Hodge with a contact email address at ROB. The document is marked for the attention of Gerald James [5] and is in the following terms: Dear Gerald We provide written confirmation for you to proceed with the following work: Description: Please proceed with Security Patrols at Auburn Power Centre. Service period ongoing. Any queries please phone the Center (sic) Manager - Gary Hodge on 02 9648 345. At: 92 Parramatta Road Lidcombe 2141 NSW Contact: Gary Hodge ROB 9690 9422 Agreed Cost: $13,041.60. Property ID: SPG 09/09/5310 Please invoice to SPG Investments Pty Limited C/- Spotlight Management Services Pty Limited, 75 Cecil Street, South Melbourne, 3205. Please ensure that the remittance advice is attached to the invoice. If you have any queries please contact the undersigned.
The evidence before me also includes a Tax Invoice ("the Tax Invoice") dated 1 April 2010 issued by BPG to SPG. [6] Under the heading "description" the following appears in the Tax Invoice: Work Order 5068 Period 01.03.10 - 31.03.10 24/7 Security Services at Lidcombe Power Centre 744 normal hours at $29.80. $22,171.20.
The Work Order is therefore expressly referred to in the Tax Invoice. The period to which the Tax Invoice relates encompasses the date of the subject incident.
On the basis of this evidence, I am satisfied that at the time of the subject incident there was an agreement in place between SPG and BPG, pursuant to which BPG undertook to, and did, provide SPG with security services at the premises. Beyond that, I am unable to make any findings as to any remaining terms and conditions of that agreement.
I am also satisfied that BPG engaged Dynamite to provide the security services at the premises. [7]

[13]

THE PLAINTIFF'S EMPLOYMENT WITH DYNAMITE

The plaintiff commenced working with Dynamite in 2009, having found the position by looking in the newspaper. [23] At his initial interview, his duties were explained as including "locking up gates, checking things and just general duties (and) patrolling". [24] He was told [25] that he would be required to undergo a period of training and was introduced to a number of people, including Bill Morris [26] who was the Operations Manager for BPG. Gerald James was Managing Director of BPG. [27]
The plaintiff explained that his initial interview with Mr Morris took between 10 and 15 minutes, following which he participated in a number of training modules [28] which involved familiarising himself with the premises and learning things such as the location of the control room, the positioning of the security cameras, the operation of the CCTV console, and the procedure for locking the premises. [29] He also recalled being asked to complete a number of forms and sign them. [30]
The plaintiff's evidence was that he understood Mr Morris to be an employee of "Dynamite and BPG". He said that he (the plaintiff) wore a uniform bearing the BPG logo. [31]
I am satisfied that Mr Morris, in his capacity as the Operations Manager for BPG, was at least partly responsible for the plaintiff's training. Quite apart from the evidence of the plaintiff to which I have referred, the name of Mr Morris appears (along with that of the plaintiff) on one of the manuals to which I have referred below. [32]
There is no dispute that the plaintiff was employed by Dynamite at the time of the subject incident. However, there is evidence that BPG had some input into devising the plaintiff's system of work. On 16 February 2009 Mr James forwarded an email to Mr Abdul Morris of Dynamite (not to be confused with Mr Morris, the Operations Manager of SPG) [33] in (inter alia) the following terms: *Standard Duties Lidcombe Power Centre Basement - Patrol of all car park bays & common areas Ground - Patrol all common areas Building levels - Patrol of all levels Building levels - Check corridor lights above and car park entries Building levels - Check garbage chute room & bins Reporting - Broken items, lights requiring replacement, incidents, breaches Mail collection area Review all incidents via CCTV Visit stores just to be visual only Attend to retail store issue .. air con, heating, etc etc. Lock up and open procedures Carry site phone at all times Carry centre keys at all times (GMK) Do not engage in any confrontation with people (retail stores will handle this and the centre manager). Security are to observe and review and protect the customers. All issues must be reported to your office for action & response (Dynamite Security). Report all incidents or issues to centre manager. Incident reports must be acted on immediately to ensure the Risk is controlled. All reports to be sent to: Gerald email or fax Morris Email or fax Gary Hodge (centre manager) email or place hard copy on desk/Gary will advise the course of action to be taken on all issues. A hard copy for filing I will adjust any procedure once authorised by the client. Please ensure the SOP, work Health & Safety Risk management Plan forms (sic) into your security officers induction and training. It's important that they understand how important it is to ensure safety and following procedures. Regards, Gerald James Managing Director Business Protection Group.
Later the same day, Mr Morris replied in the following terms: Good morning, I have read the security procedures and will advise bill (sic) to implement to the security officers. I will ensure the paperwork is on file on site and (sic) my office. Bill will have the security officer's (sic) sign and acknowledge. I have also received the Work Health & Safety/Risk Management Plan. I have given this to bill (sic) to fill out and he will and I will ensure that these documents are party of Dynamite Security officers induction and understanding your recommendation and process. Bill will be your direct contact for Dynamite Security as he will be on site for immediate response (sic) all other issues will come to me. Thank you, Dynamite Group Solutions Morris General Manager
In devising these aspects of the plaintiff's system of work, BPG exercised some control over the plaintiff. That control included directing the plaintiff as to certain aspects of how he was to carry out his duties, and the procedure he was to follow if any incident arose.

[15]

The Operations Manual

One of the manuals to which the plaintiff had access was entitled "Lidcombe Power Centre, 92 Parramatta Road, Lidcombe (NSW) Site Operations Manual" ("the Operations Manual"). Whilst there are two copies of the Operations Manual in evidence, [34] the contact list on one of them bears the name of the plaintiff as well as that of Bill Morris. [35] I infer in those circumstances that it was this version to which the plaintiff was given access when he commenced employment. I am fortified in that view by the plaintiff's evidence [36] that the contact list in that document bears the name of a number of other persons who were his fellow workers. That is usefully contrasted with another version of the Operations Manual which is in evidence [37] , the names on which do not include that of the plaintiff. [38] It is evident from its title page [39] that the Operations Manual was issued by BPG.
Clause 35 of the Operations Manual was in the following terms: 35. Armed Person/s If security personnel see, find, notice any person armed with any weapon or item which you believe may be used to cause harm call the police immediately. Take a note of the person's height, weight, clothing, age, vehicle registration, direction when leaving and weapons or item description. Call and wait for the police to arrive. Pass on all information to Police. Contact the site supervisor, Centre Management and BPG Management. Security personnel will need to complete an incident report (my emphasis in each case).
The plaintiff generally agreed [40] that this was one of the provisions of the Operations Manual with which he had familiarised himself, and said that he had "probably" read it and understood it. [41] On the basis of that evidence, as well as that which follows, I am satisfied that he was familiar with clause 35, that he had read it, and that he understood it.
The plaintiff was cross-examined about the contents of clause 35: [42] Q. If you can just look at it a bit more closely, it was dealing with armed persons? A. Yes. Q. And it said that, "If security personnel see, find or notice any person armed with any weapon, or item which you believe may be used and can cause harm, call the police immediately." A. Mm-hmm. Q. That was pretty clear, wasn't it? A. Yeah. Q. You understood why it was necessary to call the police immediately if you saw somebody who was armed or had something that could be used to cause harm? A. Mm-hmm. Q. And that was because not doing so could cause you to come into the way of harm? A. Correct. Q. Then a little bit further on, "Call and wait for the police to arrive"? A. Yeah, I can see that. Q. Yes. And you understood that meant that you call the police and then did nothing until the police arrived, didn't you? A. Virtually, yeah. Q. And that was, again, for your own personal safety? A. Mm hmm. Q. Because you weren't armed? A. No. Q. You weren't trained to tackle anybody who was armed? A. No. Q. And it wasn't a very smart thing to do to tackle somebody who's armed-- A. Of course.
Bearing in mind the finding that I have reached regarding the plaintiff's familiarity with the terms of this provision, [43] and having regard to his evidence, I am satisfied that the plaintiff clearly understood that in the event that he saw somebody on the premises who was armed, or who was in possession of something that could be used to cause harm, he was to call the police and do nothing else until they arrived. I am also satisfied he understood that part of the underlying rationale for the instructions contained in clause 35 was to ensure his own personal safety, in circumstances where he was not armed, and was not trained in how to deal with anybody who might be armed.
Clause 41 of the Operations Manual was in the following terms: [44] 41. Tenant Break-ins When finding a tenants (sic) premise has been broken into or forced entry has been identified, security personnel are to do as follows: • Do not enter premises (offenders still may be on site) • Back off and retreat to a safe distance to where you can still see the premise (sic) clearly • Call for back (sic) (either other guard or Victoria Police) • Contact the after-hours (sic) for the premises. • Wait for the police to arrive • Enter premises with Police • Check for any damage and/or stolen items. • Inform after-hours, centre management, Site supervisor and BPG management. • Stay on site till after-hours and provide assistance. • Security personnel will be required to enter this in daily log and complete an incident report (my emphasis in each case).
The plaintiff agreed, and I am satisfied, that he was familiar with the instructions contained in this provision. [45] He was cross-examined about those instructions as follows: [46] Q. And a break in means that somebody breaks into the premises. Correct? A. Mm hmm. Q. And you understood that a person could break into premises without actually breaking anything? A. What do you mean by that? Q. If somebody illegally entered the premises, that was regarded as a break in, wasn't it? A. Yeah, if they broke the window or door to go in to steal something, yeah, of course. Q. All right. And you understood that in the event of a break in, the site operations manual required you not to enter the premises? Item the first bullet point? A. Well, if you're referring to the first break and enter before-- Q. No, Mr Capar, I'm referring to what's on this document. … Q. You see the first bullet point said, "Do not enter premises. Offenders still may be inside." A. Well, yeah, of course. Q. And that was just plain common sense, wasn't it? A. Well, virtually, yeah. Q. And it said "Back off and retreat to a safe distance where you can still see the premises clearly". A. Well, yeah. Q. That meant don't go anywhere near the offender. Correct? A. Well, of course not. Q. "Call for back". That meant - you understood that meant call for back up? A. Well, call for police, of course, yes. … Q. It said "Wait for the police to arrive". A. Mm hmm. Q. And check - "enter the premises with police". So you understood that-- A. Well, yeah, I have to give them a statement while I go up there, of course. Q. That's right. So you understood that your own safety was paramount and you weren't to do anything unless the police were there. … Q. You understood that the gist of this was to say that you weren't to go anywhere near somebody who had entered the premises illegally and that you're only to approach that person once the police were there. A. Well, yeah, if he was still there or if he took off, yeah.
Based on this evidence, the plaintiff clearly understood that it was dangerous to go to any part of the premises where an intruder might be present. He also understood the related necessity to keep a safe distance away from any intruder. He also understood the express instruction in clause 41 that in the event that an intruder came on to the premises he was to "back off", retreat to a safe distance, call the police and wait for them to arrive. I am further satisfied, given his evidence, that the plaintiff was aware that these instructions were put in place with a view to ensuring his safety, and that he knew that acting contrary to such instructions would have the potential to jeopardise that safety.

[16]

The Work Health and Safety Management Plan

Another document to which the plaintiff had access was the "Work Health and Safety Management Plan" ("the Management Plan") which was also issued by BPG. [47] The plaintiff agreed that this was "probably" a document which was at the premises, and with which had familiarised himself. [48] I am satisfied that the plaintiff was familiar with its contents.
The plaintiff agreed that the work that he performed as a security officer at the premises included doing patrols. [49] Under the heading "Mobile Patrols - Venue Protection - Alert Installation", the Management Plan identified a number of hazards which could possibly arise at the premises. One such hazard, referred to in clause 10, was that of assault. In that context, a number of instructions relevant to dealing with intruders and offenders were set out in the following terms: [50] • Consider own personal safety first • Always call for assistance/back up/instruction from control room • Do not resist or cause conflict • Follow hold up procedure • At all times adhere to Firearms legislation • Follow procedure for patrol officers (my emphasis in each case)
A separate section of the Management Plan was headed "Venue Protection". It identified other possible hazards, and contained instructions as to the procedures to be implemented in relation to them with a view to maintaining safety. Clause 10 in that section was identical to the terms of clause 10 set out at [52] above.
The plaintiff was cross-examined about the instructions contained in these parts of the Management Plan: [51] Q. Did you understand that, again, to be telling you that your own personal safety was paramount? A. Well, that's correct, yeah. Q. And that you should call for assistance and backup, and not take any action, on your account, to confront an intruder or an offender? A. Well, if you're talking about that night, the alarm went off, and I had to go check Q. Mr Capar, I'm asking you about what you understood this document to be requiring you to do … A. Yeah, I understand the, yeah, call for help, the police, the supervisor. Yeah, I get what you're saying.
I am satisfied that the plaintiff clearly understood that at all times, but particularly in the event of an intruder coming on to the premises: 1. his own safety was the paramount consideration; 2. upon becoming aware of the presence of an intruder he was required to call for assistance; and 3. he was not to act in a way which jeopardised his own safety.
Importantly, he understood all of this to be the case in circumstances where it was obvious that an intruder could be a dangerous criminal.

[17]

Standing Operating Procedures

A further document issued by BPG was entitled "Standing Operating Procedures" ("the Operating Procedures"). [52] The plaintiff agreed that this was "probably" a document which had been made available to him and with which he had familiarised himself, but said that he could not "recall everything". [53] I am satisfied that the document had been made available to him, and that he was familiar with its contents.
Clause S11 of the Operating Procedures was in the following terms: [54] S11 Leaving your post Officers are not to leave their posts unless properly relieved, or upon instructions or permissions of a superior, or client, or to assist another officer, or to assist an injured person, or in the case of fire or other similar emergency or extenuating circumstances or when requiring a toilet break. When leaving a post under such circumstances, the officer should endeavour to notify control or another officer, or take any other precautions necessary for the protection of their posts during their absence such as lock gates etc. if needed. Similarly patrol officers are not permitted to leave their allotted rounds unless specifically instructed by management. Pursuits of offenders is (sic) a matter for the Police (my emphasis in each case).
In respect of this instruction the plaintiff was asked: [55] Q. Now, if you go to page 356, there was an item S11 which had the heading Leaving of Post. Do you see that? A. Yeah, I can. Q. All right, and that said that "Officers are not to leave their posts unless properly relieved or upon instructions or permission of a superior or client or to assist another officer or assist an injured person," et cetera. Do you see that? A. Yeah. So what are you trying to say? I can't leave my post? … Q. The question is that you understood that when you were at your post, carrying out a particular aspect of your work, you weren't allowed to leave that post unless you followed the procedure. Correct? A. Nah, it's incorrect.
On the evidence before me, the plaintiff was the only security guard on duty at the time of the subject incident. As I have noted [56] it had been explained to him when he commenced working at the premises that his responsibilities included locking them up. Discharging that particular responsibility obviously necessitated his absence from the control room.
If one regards the control room as the plaintiff's "post" for the purposes of clause S11, it would have been difficult, if not impossible, for any person in his position to comply with the instructions contained in that clause, given that he was the only person on duty on the evening of the subject incident, and was therefore responsible for tasks which necessarily required him to leave the control room. There is, therefore, a degree of incongruity between the instruction contained in clause S11, and the reality of the duties and responsibilities of the plaintiff's position. That said, for the reasons I have already set out, the plaintiff knew that pursuing intruders was a matter for the police and not the security staff, and that he should not leave the control room for the purpose of doing so.
Under the heading "Robbery Procedure", the Operating Procedures contained the following instructions: [57] In order to provide the most effective protection for staff, clients and the property, an officer should be prepared to take prompt and appropriate action in the case of a robbery. The Officer should not attempt to interface with the offenders or make any attempt to apprehend or chase the offenders unless the immediate events unfold that gives the officer, in their opinion, no other reasonable choice. The Officer, providing they can do so without any risk to themselves or other persons, should raise the alarm by the most expedient means available. This may mean using your two-way radio or leaving the immediate area to access a telephone in order to contact the police on the emergency 000 number. The officer should then observe the situation and mentally note all the relevant details and descriptions appropriate to the offenders and the means of transport etc. Officers are to record all details in the incident report or official statement at the earliest possible convenience. Even if the officer is armed, response should be exactly the same. The officer is not use their firearm to prevent the robbery. The officer may only use the firearm for his or her own protection or to protect the lives of others. Even then, firearms should only be used when the lives of innocent people are not in danger. The officer must be aware and remember that the primary function of a Security Officer is Prevention not Apprehension. They must Observe and Report, first and foremost, and intervene only if given no other choice (my emphasis in each case).
These instructions were drawn to the plaintiff's attention in cross-examination: [58] Q. And you understood that very clearly to be saying that under no circumstances were you to intervene or interfere or approach an offender and that your job wasn't to apprehend or do anything of that sort but simply to notify the police. A. Well, yeah, of course.
The plaintiff's admitted understanding of that particular instruction was unequivocal. He knew that if he became aware of the presence of an intruder on the premises, he had a responsibility to call the police. He specifically understood that under no circumstances was he to attempt to intervene by interfering with, or approaching, the intruder. He knew that attempting such intervention was not part of his job.
Under the heading "Offenders on Premises" the Operating Procedures instructed as follows: [59] If offenders are discovered on a client's premises, immediately contact, notify the police. Do not attempt to capture the offenders on their own unless circumstances allow you no other choice of action. Whilst waiting for the police to attend leave the premises normally and observe from a remote position. Assist the police as directed when they arrive but don't be a hindrance. If you see an offender on a non-client premises, do not enter the premises but contact office or the Operations Manager immediately for notification to the police, and if possible remain and observe from a remote position. Record all activity in the security logbook in case a statement is required at a later time (my emphasis in each case).
The plaintiff agreed [60] that this was another provision with which he had familiarised himself, and I am satisfied that this is so. He was cross-examined about it as follows: [61] Q. The question was this, that you understood very clearly that you were being told in no uncertain language that you were not to go anywhere near an offender on the premises and that the very first thing that you had to do was to call the police and wait for the police, didn't you? A. I know what you're saying, but in relation to that I had to get - leave my post and see what was actually happening-- … Q. Mr Capar, you'll get a chance to talk about the incident a little bit later. But at the moment I'm just directing your attention to your understanding of the instructions that you had as to how you were to conduct yourself. You understand what I'm putting to you? A. Yeah, obviously. Q. And you understood that in the clearest of language you've been told that if there was an offender on the premises you were to keep clear of the offender unless circumstances allowed you no other choice of action. You understood-- A. Well, that's correct. Q. So, if you had a choice of action, the choice you were required to make was to stay away from the offender and call the police and stay out of the way until the police came. You understood that, didn't you? A. Well, I don't believe so but-- Q. You didn't - do you say-- A. I can't-- Q. Just a moment. Do you say you didn't-- … Q. I'd like you to just focus on what I'm asking you, which is the understanding you had of the instruction you received from your employer, as to how you were to conduct yourself. I'm not asking you about what might have happened later, but simply what you understood your requirements to be. Do you understand that? A. Well, yeah. Q. And you understood, that in no uncertain terms, the instruction was that if there was an offender on the premises, unless you had no other choice of action, you were to stay clear of the offender, and call the police, and wait until the police arrived. Correct? A. Yeah. Q. Now, the next paragraph in that section said, also, "If you see an offender on a non-client premises, do not enter the premises, but contact the head office, or the operations manager immediately, for a notification to the police, and if possible, remain and observe from a remote position." You see that? A. Whereabouts is it Q. This is the second paragraph in that section headed Offenders on Premises. A. Okay. Yeah, well, I was observing. That's why I went up to the top, to see what the problem was. Q. Mr Capar, you understood the instruction to be that if there was an offender on the premises A. Mm-hmm. Q. You had to stay right away, you had to be remote. You understood that, didn't you? A. Well, if there was the problem, of course I had to investigate it. Q. Mr Capar, I realise that you want to keep talking about the incident, but you'll get a chance not too far in the future. I'm just asking you about your understanding of the instructions you had. A. Yeah, observe from the cameras. I get what you're saying. That's what I did.
Contrary to the plaintiff's assertions, he did not have to leave his post to investigate anything. He was aware of the presence of the intruder because he saw him on the CCTV footage from within the safe confines of the control room. He also knew, as a result of his familiarity with the instructions contained in the various manuals to which I have referred, that if he became aware of an intruder on the premises he was to keep clear, call the police, and wait for them to arrive. All of that could have been done from within the control room.
Under the heading "Monitored Alarm Client" [62] the Operating Procedures contained the following further instructions: When directed by control to attend the premises of a monitored alarm client that has gone into alarm makes certain that control has notified the police, where such notification is appropriate, (multi-sector etc). If you hold keys to the premises, follow this procedure: 1) Thoroughly check the exterior of the premises for any signs of entry. If there are any signs of illegal entry DO NOT ENTER and call the police. 2) Enter with extreme caution. 3) Check alarm panel to determine what sector is in alarm. 4) Switch off the system and thoroughly investigate the entire complex. 5) Advise the relevant monitoring company of the full and precise details of your investigation, be it the result of a genuine or false alarm. 6) Leave an alarm docket on the panel or designated place, advising the client on the date, time and sector(s) you attended. 7) Reset the alarm and check with the relevant monitoring company for a full seal, then the premises. 8) If unable to obtain a seal, advise relevant monitoring company accordingly and follow their instructions. When following up any alarm situation you must be satisfied in your own mind and to the best of your ability that - 1) The entire complex was thoroughly investigated and nothing was found to be disturbed. 2) The alarm call was either a genuine or false alarm. 3) All information was recorded by the relevant monitoring company for advice to the after-hours contact. Remember, before leaving any client's premises, reset the alarm and check that the relevant monitoring company that a full seal has been obtained. If you are uncertain of the internal layout of the alarm system for any clients for whom you hold keys, check with relevant monitoring company. Also, the handling of police in Alarm situations is important. Usually they will follow your lead due to the assumption that you know more about the premises than they do, but occasionally they will want to be in control, if so, let them, it's their error. You must be confident when dealing with police or else you will not earn their respect (my emphasis).
The plaintiff was cross-examined further: [63] Q. Mr Capar, so when you embarked on your work at the Lidcombe Power Centre, you understood very clearly that your role was that of an observer? A. Yeah, observed the cameras, and things like that, yes. Q. And if you saw that somebody was on the premises, your role was to notify the police immediately? A. Or look on the cameras, and see what they're actually doing, and then, I suppose, see what's going on, yeah, then notify police and the supervisor. Q. Mr Capar, if you saw, on the cameras, that somebody had illegally entered the premises A. Mm-hmm. Q. You knew what they were doing, you knew that they were up to no good, didn't you? A. Well, yeah, obviously. Q. So there would be no reason why you wouldn't notify the police immediately, upon seeing that someone had entered the premises illegally, would there? A. Well, I had to go observe and see what Q. Mr Capar, please answer my question. A. They did. … Q. The question was this: if you saw on your camera that someone had illegally entered the premises, you wouldn't need to investigate what they were doing because you knew straight away that they shouldn't be in the premises, didn't you? A. Well, I - yeah. Q. That's correct, isn't it? A. Well, the way you're saying it's not really. I observe Q. Mr Capar A. In case they - - - … WITNESS: - - - case they took off and there was a false alarm. Yeah, then rang the police and supervisor. HIS HONOUR Q. But Mr Capar, what's being put to you is this: that when you realised somebody was on the premises after hours, you must have realised that they were up to no good. Do you agree with that? A. Yeah, I agree with that. Yes. FELLER Q. And if you saw that somebody was carrying a weapon, for example, you'd really know that they're up to no good, wouldn't you? A. Yeah, if I monitor it on the camera, yeah. Q. Or even if you suspected that they were carrying some type of a concealed weapon, then you'd really think they're up to no good? A. Well, how can I tell if they've got something concealed? Q. Well, because they shouldn't be on the premises in the first place, should they? A. Well, yeah. After hours, that's correct. Q. And if you saw somebody on the premises illegally after hours, then you would know that they had either forced entry into the premises or somehow gained entry in a way which wasn't authorised? A. That's incorrect 'cause there was bowling all night so there was people walking around. Sometimes the electric slide doors were no good so people would walk in. I'd go tell 'em what's happening and they go, "Oh, we want to go to the bowling and things like that." So the centre wasn't up to scratch.
In summary, and in light of the evidence I have set out, I am satisfied that at the time of the subject incident the plaintiff knew and understood (inter alia) that: 1. it was dangerous to go to any part of the premises where an intruder might be present; 2. there was a consequent necessity to keep a safe distance away; 3. there was an express instruction in clause 41 of Operations Manual that in the event that an intruder came onto the premises who was armed, or who appeared to be in possession of something that could cause harm, he was to "back off", call the police, and wait for them to arrive; 4. in the event that an intruder did come on to the premises, his (i.e. the plaintiff's) own safety was the paramount consideration, and he was not to act in a way which jeopardised that safety; 5. pursuing intruders was the responsibility of police, not security staff; and 6. the underlying rationale of all of these matters was, at least in part, the preservation of his own safety.

[19]

EVENTS FOLLOWING THE FEBRUARY INCIDENT

At 8:21am on 10 February 2010 a person described as "Janet" forwarded an email to a number of persons regarding the February incident. Her email originated from what was described as "045 Lidcombe Manager. [69] At the foot of her email were the words: Spotlight Lidcombe Lidcombe Power Centre, 92 Parramatta Road Lidcombe 2141.
Her email was in the following terms: [70] Morning, please be advised, our store got broken into last night. I will send photos through to you tomorrow. However, they used our trolleys to smash our front door in. We have organised the door to be replaced hopefully before end of trade, can't see any stock taken. If you have any further inquiries please don't hesitate to call.
Janet has not been otherwise identified. However, given what appears at the foot of her email, and given her reference to "our store" being the subject of a break-in, I infer that she worked for Spotlight at its store which was located at the premises.
Included in those persons to whom Janet's email was sent was Georgia Hall. Ms Hall responded at 8:29am: [71] Hi Janet, please ensure as previously discussed, you contact the police and supply them with the CCTV footage from the Centre. Also, please request an Event No from them you can use to follow up on any outstanding issues, arrests etc. Also, before you open, would you please request DTL's and team members to walk the floor and check for any missing merchandise, emergency exit doors wedged, blu-tac/chewing gum open, fire extinguishers, footprints on counters and also look up and check the ceiling areas, especially near the cash office in lay-by. It may be an idea to check your alarm/back of house panels to ensure they aren't damaged and the POS drawers to check for same. Please advise the status of all this or any further damage. Also, please let us know when you have contacted the police and made the report after checking the store. Thanks Janet. If I can assist any further just give me a call.
The email from Ms Hall included the following electronic signature: Georgia Hall Risk Management Spotlight Pty Limited Level 6, 111 Cecil Street South Melbourne 3205
I infer from those circumstances that Ms Hall was also an employee of Spotlight.
At 9:47am Janet sent a further email to Ms Hall [72] in the following terms: Hi Georgia, Based on the cctv footage from Centre Management it was a male and lady and did get stock out of the store. The police came out last night and are coming in today for the cctv footage. Thanks Janet
At 11:58am on the same day Richard Stanwix of BPG forwarded an email to "Marc Thompson (Property)" and Gerald James headed "Lidcombe break-in" [73] which was in the following terms: The break in occurred via entry "over" an (sic) roller shutter. They allegedly used the trolley to break the glass which activated the alarm. The control room called the guard who was at 10 Pin City and the John Street Gates. Guard attended but in the few minutes and on route they threw the items over the balcony and absconded. The site security will have all the reporting paperwork and Centre Manager/Asset Managers have been advised by centre security. I have reviewed the closing and patrolling procedures performed by the security officers and all is fine. The issue will be with the gap on top of the roller door which you will need to asses (sic) and make arrangements.
There is an issue as to whether SPG became aware of the February incident at or around the time that it occurred, and thus became aware of the gap near the roller shutter through which the intruders gained access on that occasion. Senior Counsel for SPG submitted that the communications set out above centred upon the fact that the Spotlight premises has been broken into, and that there was no evidence as to the nature of any relationship between Spotlight and SPG, and thus no evidence that SPG was made aware of the gap.
Senior counsel for the plaintiff submitted that I would be satisfied of the relevant connection between SPG and Spotlight, and satisfied that SPG had become aware of the February incident, and aware of the gap through which entry was gained on that occasion.
Although there is evidence that some employees of SPG became aware of the gap at or around the time of the subject incident, [74] there is no direct evidence that any person within SPG was informed of the February incident around the time that it occurred. More specifically, there is no direct evidence that any person within SPG was informed of the existence of the gap over the fire stairs at each end of the ground level of the premises at the time of the February incident. In that regard, it is significant that out of all of the correspondence which I have set out above, the only reference to entry having been gained through the gap at the time of the February incident was contained in the email of Mr Stanwix. [75] Mr Stanwix was an employee of BPG, not SPG. [76] His email was sent to two persons. The first, Mr James, was the Managing Director of BPG. The second, Mr Thompson, appears to have been an employee of ROB. As far as Janet is concerned, she appears to have been employed by Spotlight, as was Ms Hall. Spotlight obviously had a store at the premises, but there is no evidence of any other association between Spotlight and SPG.
The effect of the submission of senior counsel for the plaintiff was that I should infer, from all of the correspondence set out above, that SPG knew of the February incident, and thus knew of the gap through which entry to the premises was gained on that occasion. An inference is a conclusion of fact which is rationally drawn from a combination of other facts. Even if it were established that all, or even some, of those persons who sent and received emails were employees of SPG (and there is no evidence that this is so) it would be an error to infer from that fact that SPG had knowledge of the February incident, and thus knowledge of the gap. [77] In the circumstances I am not satisfied that knowledge of the February incident, or knowledge of the gap, came to the attention of SPG at or around the time of the February incident, or indeed at any time between the February incident and the subject incident.
The position of BPG is different. Senior counsel for BPG did not suggest that BPG was not aware of the gap. Indeed, consistent with the evidence, senior counsel's submissions tended to accept that BPG was so aware. [78] I am satisfied that this is the case.

[20]

THE SUBJECT INCIDENT

In the first of his evidentiary statements [79] the plaintiff described the subject incident in the following terms: 21. On 17th March 2010 I was working the 10pm to 6am security shift at Lidcombe Power Centre. I was in the office having something to eat on my break when I noticed on the security camera, a man standing outside the Anaconda store outside the Power Centre. He had a big duffel bag and a cap pulled down so no one could see his face. 22. I noticed he ran to the roller shutter (where the previous break in happened a few months prior) which is out of sight of the cameras. 23. I put down my food and knew that something was going on. I grabbed the keys and went to the top level of the shopping centre and waited near where I thought he would come out. I heard footsteps coming up and they were getting louder and my heart was racing and I was getting very nervous. 24. The man then appeared and I yelled out "Security", before the man dropped the bag and said "I am going to kill you", and he had a huge fireman's axe and started chasing me. 25. I ran as fast as I could back to the office and was shaking but managed to open the door and lock myself in there. I called the police and thought that I was going to faint and I could hardly talk. The woman on the phone was trying to calm me down. I managed to tell them about the break in that was happening. 26. The police then called back about ten minutes later to say that they had caught the man and asked if I could come up to the level they were on to give a statement. 27. The next day I called my supervisor and said that I didn't want to do night shift. He said that I had to as no one else could do it.
The account of the subject incident set out in the plaintiff's evidentiary statement is not the only account that he has provided. He also gave: 1. a statement to the police; [80] 2. a statement to an insurance investigator; [81] 3. an account in an incident report; [82] 4. an account to Dr Wendy Roberts; [83] 5. an account to Dr Lewin, Psychiatrist; [84] 6. an account to Dr John Roberts, Psychiatrist; [85] and 7. an account to Dr Phillips, Psychiatrist. [86]
There were some discrepancies between the various accounts that the plaintiff gave (particularly to doctors) about which he was cross-examined at some length. However, those discrepancies are, in my view, largely immaterial. There is no real dispute that the subject incident occurred, generally speaking, as the plaintiff has described it in his evidentiary statement.
Three excerpts of security footage which were taken at the time of the subject incident were tendered in evidence, along with still images taken from some of that footage. [87] The first excerpt was taken from camera 16 which was located at the front of the premises near Parramatta Road. That footage shows the intruder entering the front concourse of the premises from the eastern end. He is then seen to walk up a set of steps at that end and walk in a westerly direction away from the camera, and towards the fire stairs located at the western end of the ground level. The plaintiff confirmed that this was the footage which alerted him to the intruder's presence, and which led him to believe that the intruder had "gone over the roller door". [88] The plaintiff said that upon seeing the intruder on that footage, he immediately made his way to level one by coming out of the control room and walking up the escalators. [89] He said that he went up to level one to "have a look". [90]
The plaintiff gave evidence that he believed from what he had seen on the CCTV footage that the intruder had entered the premises through the gap near the roller door over the fire stairs located at the western end of the ground level of the premises, [91] and had gone from there to level one. Given the direction in which the intruder headed (as depicted in the footage taken from camera 16) I am satisfied that the intruder gained entry in the manner the plaintiff described, and then made his way to level one of the premises.
The second excerpt of footage was taken from a camera referred to as "east plaza, level one" [92] which was located at the eastern end of level one of the premises, near the Spotlight store. It shows the plaintiff standing on the concourse [93] where he is seen to remain for a short time before running towards the escalators. At about the same time, the intruder appears in the foreground of the footage, near the seats located outside the Spotlight store on the concourse. The intruder then disappears from view.
The plaintiff agreed that this footage showed him standing near the escalator on level one for approximately 41 seconds [94] before running away. He said that when he heard footsteps coming up the stairs he became increasingly frightened [95] and had in mind that the intruder could be violent. [96] He said that when he was confronted by the intruder, he ran back down the escalator to the control room, locked himself inside and telephoned the police. [97]
The third excerpt of footage was also taken from camera 16 on the ground level. [98] It shows the intruder exiting the premises by running in an easterly direction along the concourse on the ground level before disappearing from view.
Based on this evidence, I am satisfied, that: 1. the plaintiff became aware of the intruder's presence as a result of seeing him, from the control room, on the CCTV footage; 2. the intruder entered the premises via the gap over the roller door at the western end of the ground level of the premises; 3. upon seeing the intruder on the CCTV footage the plaintiff left the control room and walked up the escalator to level one to the area where the intruder was likely to be present, in order to (in his words) "have a look"; 4. having reached level one by walking up the escalator, the plaintiff stopped and remained nearby for a period of approximately 41 seconds; 5. the intruder then appeared in possession of an axe, and the plaintiff shouted "security"; 6. the plaintiff was then threatened with death by the intruder; and 7. the plaintiff then fled back to the control room, locked himself inside and called the police.
Bearing in mind the plaintiff's knowledge and understanding of the instructions contained in the various manuals, [99] he was cross-examined about the circumstances which led him to pursue the intruder: [100] Q. And in order to, as you put it, have a look, you took yourself up to the same level. Correct? A. Yes. Q. To where you knew the man was likely to be? A. Yes. Q. In fact that was the only place he could be, having gone over the roller door and up the fire stairs. Correct? A. Correct. Q. So you knew that it was inevitable that you would come into contact with this man if you went up to the first level, didn't you? A. Yes. Q. You stood up over the escalators for 30 seconds? A. That'd be about right. Q. So in fact it was about 41 seconds, wasn't it? A. I can't be precise. Q. In any event you were there for a short period of time waiting for the man to show up, weren't you? A. I was hoping he wouldn't. But he did show up. Correct. Q. You knew that he was coming up to the first level, didn't you? A. I wanted to make sure. I didn't know if he was or he wasn't. That's why I went up to have a look. Q. Didn't you tell me a moment ago that you saw him going over the roller door? A. Yes. Q. And that you believed that he was going to the first floor because that was the only place he could end up? A. Yeah. On that level. That's correct. Q. So that you fully expected that he was going to show up on the first level, didn't you? A. I didn't expect it. I was just you know hoping he didn't. But he - yeah. He did obviously show up. Q. But you knew that there was nowhere else he could end up having gone over the roller door and up the fire exit. You knew that, didn't you? A. That's correct. That's where he'd come out from. Yes. Q. So you knew that it was inevitable that, if he'd gone up the fire stairs. A. Yes. Q. That he was going to end up on the first level? A. Yeah. Q. And it was inevitable that, if he ended up on the first level, that you were going to come into contact with him? A. Obviously of course. Q. So you waited for 30 seconds or more? A. Mm-hmm. Q. In that position waiting for the man to show up? A. Yes. Q. During that time you realised that you were in great danger, didn't you? A. If he was coming up, yes of course I'd realise that. Q. In fact you were very frightful of what might happen as you were waiting there for that period of 30 seconds or more, weren't you? A. Yes. Correct.
The plaintiff's evidence was that immediately upon becoming aware of the presence of the intruder on the premises, he left the control room and went to level one to "have a look". The reality is that the plaintiff went to level one to ascertain where the intruder had gone, and what he was doing. He did so in circumstances where he must have known that it was highly likely, if not inevitable, that the two of them would come, as it were, face to face. The plaintiff's decision to go to level one was directly contrary to the instructions that he had been given in the various manuals, namely that in such a situation he was not to pursue the intruder, but was to (inter alia) "back off", remain in the secure confines of the control room, and call the police.
Having reached level one, the plaintiff remained in the vicinity of the escalators for a period of approximately 41 seconds, effectively waiting for the intruder to appear. The intruder did appear, and threatened the plaintiff, causing him to flee to the control room. Once again, the plaintiff's actions in these respects were, to his knowledge, completely at odds with both the instructions contained in the various manuals, and his understanding of proper safety procedures.
The plaintiff was cross-examined further: [101] Q. What you knew was going on was that somebody had gained illegal entry onto the premises. Correct? A. Prior or this? Q. No. On this occasion. A. Yes. Q. You knew that somebody had gained illegal entry onto the premises? A. Not right at the start. That's why I was going to check. Q. The premises were closed, weren't they? A. Yes. Of course it was. Q. And the roller shutter door was down, wasn't it? A. Yes. Q. And you understood from your observation of the CCTV that he'd launched himself over the top of the roller door and was going up the fire exit. Correct? A. He went right near it and I just wanted to make sure if he did come over or he didn't. That's why I stood up at the top of the escalators. Q. Do you say that you didn't know that he'd gone up over the roller door? Is that what you want to say? A. No. There was a previous break in before that and that's where they probably gained entry. Like I'm saying I wanted to just check to make sure. Q. So you say that you were aware of a previous unlawful entry? A. Yes. Spotlight.
He was then asked: [102] Q. You believed, did you not, that this man had gone over the roller shutter. That's correct, isn't it? A. That's where he gained entry. Yeah, of course. Q. At the time that you went to have a look at … A. Yes. Q. …the scene, you believe that the man had gone over the roller shutter, didn't you? A. Well, that's where he got in from. That's where I saw him come up the steps. Q. But you saw him going over the roller shutter on the CCTV security video, didn't you? A. Yeah, he went to that area and I believed in my mind, yeah, he was probably going over there, yes. That's correct. Q. Now, you also knew that he had a large bag. A. Yes. Q. And you couldn't see what was in that bag, could you? A. No, I didn't. Q. But it was apparent to you, was it not, that in that bag the man might be carrying implements to be used for breaking and entering? A. Well, obviously that's why he had the bag. Q. So it was obvious to you that the bag might contain break and enter implements? A. Correct. Like with the axe to smash the door in. Q. So it was obvious to you at the time that he might be carrying something like an axe to smash the door in. A. Yeah. Breaking implements like you just said, yes. Q. Or he might be carrying offensive weapons like a knife. A. Well, virtually, yes. Q. Or he might even have a gun. A. Well, if he had a gun I wouldn't be here. I'd be dead. Q. Mr Capar, I'm not asking you anything about that at the moment. What I'm asking you is, what was obvious to you when you saw that he was carrying a large bag, and you agree that it was obvious to you that that bag might have all manner of things in it, including A. Yeah, when I - when I seen it, yes. Of course.
He was then asked. [103] Q. The other thing that you noticed about him, as you told various people, was that he had his cap pulled down over his face. A. Well, yes. Q. Was it pulled right down so you couldn't see his face? A. Right down - it was pulled down, but you could still see his face a bit, yeah. Q. But was it your impression that he was attempting to conceal his face? A. Well obviously, yes. Q. So you knew that this man was up to no good. A. Well, that's why he was there, of course. Q. And it was obvious to you that he could be a dangerous criminal? A. Mm hmm. Q. Was that answer "yes"? A. Yes. Q. You knew that if you came into contact with a dangerous criminal of the type I've just described to you that harm could come to you. A. Well, yes. Of course. Q. In particular, if you confronted a violent or dangerous criminal you appreciated that he could injure you or wound you in some way. A. Yes. Q. You're not a large man. A. No, I'm only little. Q. And you have no means of defending yourself. A. Nuh, nothing. Q. You had no weapon. A. Nuh. Q. And you understood that you were totally vulnerable to being hurt of injured by a violent criminal if you confronted him. A. Well obviously. Q. Notwithstanding, you decided to go up to level one - where you fully expected this man to show up - to confront him, didn't you? A. I just wanted to observe and see if he did come up.
The cross-examination continued: [104] Q. Mr Capar, knowing what you did about this man, or the view that you formed about this man, you knew that if you actually came into contact with him you would be putting yourself at serious risk of injury. A. Well that makes sense, but I had a bit of a distance and I just wanted to make sure, like I told you. Q. You knew that there was a risk, didn't you? A. Well obviously. I don't … Q. Then you decided to … A. … have any weapons or anything. Q. Then you decided to take that risk, didn't you? A. Not take it, I just wanted to check to make sure. … Q. You see, you knew that there was a risk that if you came into contact with a violent or dangerous criminal who was in the course of an unlawful entry into the premises that he might do you some harm. A. Well, if I was close to him, probably, yes, but I managed to run away. Q. But you appreciated that he may have outrun you. A. Well, I can't tell you that. Q. But you knew there was a risk that could happen. A. Well, I was at a bit of a safe distance, so Q. But when you went up to that area; to the top of the escalator, you didn't know precisely where he was on the first level, did you? A. Well, he had to come up the steps, there was nowhere else unless Q. But you didn't know A. … he could fly up there. Q. Yes, but you didn't know where he was at that point in time, whether he'd gotten up the stairs or whether he'd hidden himself, or where he was, did you? A. Well, that's why I stood next to there and I just observed and after a little bit I heard the footsteps come up and, yeah, that's when I yelled out.
It is clear from this evidence that when he decided to leave the control room and go to level one of the premises, the plaintiff was obviously aware that he was pursuing an intruder who was carrying a large bag which might contain weapons or other implements which could be used to break and enter the premises. In particular, it was obvious to the plaintiff at the time that the intruder could be carrying something like an axe or a knife. The plaintiff was also aware that by pulling a cap down over his face, the intruder was trying to conceal his identity.
In other cross-examination [105] the plaintiff agreed that the intruder was "tall", that his face looked "scary", and that he thought he "might be a junkie". He also agreed that all of these factors gave him an additional warning that the intruder could do something very unpredictable. Put simply, and as the plaintiff expressly conceded, he was aware that the intruder was "up to no good" and could be a dangerous criminal. The plaintiff was also aware that in the event that he came, in effect, face to face with such a dangerous criminal, in circumstances where he (the plaintiff) was not of a large build, was not armed, and had no means whatsoever of defending himself, he was at risk of being injured or wounded in some way.
It must have been obvious to the plaintiff from the moment he decided to leave the control room and go the very area where he thought the intruder would be, that it was likely that he would be confronted by the intruder. It follows that he must have known that by acting as he did, he would be placing himself in a position of great danger, and one of significant, if not total, vulnerability. The plaintiff must also have known that in acting as he did, he was ignoring the instructions set out in the various manuals about which he was cross-examined.
The purpose for which the plaintiff remained on level one for approximately 41 seconds, waiting for the intruder to emerge, is not satisfactorily explained on the evidence. From the point of view of the plaintiff's safety it was both dangerous and futile. Waiting unarmed, for an intruder who was thought to be armed, was an inherently dangerous thing to do. It served absolutely no purpose. The plaintiff's conduct in that regard increased his already significant vulnerability, something that he knew to be the case. That much is clear from the following passage of cross-examination: [106] Q. When you heard the footsteps coming up … A. Mm hmm. Q. … as you say in para 23 of your statement, they were getting louder and your heart was racing and you were getting very nervous. Do you see that? A. Well, yeah, I do see that. Q. So you were in fear for your safety at that point in time, weren't you? A. That's correct. Q. And notwithstanding, you waited there for 30 seconds or more, waiting for this man to show up. A. Yeah, to make sure if it was. Q. To make sure what? You knew that this man had a bag that you didn't know the contents of, you knew that he had a cap over his head A. Mm hmm. Q. … you knew that he shouldn't be in the building and you knew that he was in the building going up the stairs. A. That's correct. Q. What else did you need to know? A. I just wanted to stand there and observe and see if he did come up, or if he was going up and then probably, I don't know, was going to go back out. I'm not sure, but I had to go up and make sure, you know what I mean.
The plaintiff's evidence that he waited for a period of time on level one to "make sure" that the intruder had in fact gone to that area of the premises is entirely illogical. Going to level one in the first place to "have a look" served no purpose, nor did remaining there for the intruder to appear. Acting in that way was entirely antithetical to ensuring the plaintiff's own safety. I do not accept the plaintiff's evidence that he "had" to go up to level one for the purposes of making sure of anything. Going up to level one unarmed, effectively in pursuit of an unpredictable intruder who was armed with some kind of breaking implement, put the plaintiff's safety at extreme risk. The plaintiff clearly knew that to be the case at the time.
Having waited near the top of the escalators on level one for what was, in all of the circumstances, a significant period, the plaintiff must have known that it was likely that the intruder would eventually see him. For reasons which remain entirely unexplained, the plaintiff then acted in a way which ensured that what was initially a likelihood became a certainty: [107] Q. You knew that it was inevitable that once the man showed up at the top of the stairs he was going to see you, didn't you? A. Well, yeah, and I thought he was going to - when I yelled out he was going to go back down the stairs, go over the roller shutter and take off, you know what I mean. Q. Well, you made sure that the man knew that you were there, didn't you? A. Yeah, cause I yelled out. Q. Before you yelled out, "Security," you saw that this man already had an axe in his hand, didn't you? A. Well, when I saw him, yeah, and I yelled it out, yeah, he did have an axe in his hand. Q. No, what I'm putting to you is that when he came up the stairs, he already had the axe in his hand. A. Correct, and duffle bag. Q. He had the axe in his hand A. Yes. Q. … and you saw him there, coming up the stairs A. Mm hmm. Q. … and turning towards you with the axe in his hand. A. Correct. Q. And what you did was call out, "Security." A. Yes. Q. So you drew his attention to the fact that you were there A. Yes. Q. Notwithstanding the fact that he was carrying an axe. A. Well, what do you mean by that? Q. You knew he was carrying an axe A. Yeah, I - I just told you that. Q. …and you must have realised at that point in time that he was potentially a violent and dangerous person. A. Well obviously, that's why he had the axe. Q. And instead of turning around and exiting immediately A. Mm hmm. Q. … and silently A. Yes. Q. … you called out to him, "Security." A. Yeah, in the hopes that he'd take off, but he didn't and that's when he said he'd kill me. Q. And you realised that if you called out to him, "Security," A. Mm hmm. Q. that there was a serious risk that he might come after you. A. Well, I didn't know that for certain. I thought he'd just get scared cause I yelled it out and take off back down the steps and over the roller shutter. HIS HONOUR: No, but what's being put to you is that you were aware that there was a risk that he would go after you. WITNESS: Yes. Q. Do you agree with that? A. Yes, I do agree with that, yes. FELLER Q. And you decided to take that risk. A. That's why I took off. Q. But you took off after you took the risk and it didn't pay off. A. Well, it didn't pay off, obviously.
The situation in which the plaintiff found himself at the top of the escalators is conveniently summarised in the following passage of cross-examination: [108] … Q. You saw that the man had an axe in his hand as he … A. Yes. Q. … came up the stairs, correct? A. Yes. Q. That told you that the man posed a real risk to your safety, correct? A. Yes, when I saw him. Yes, I saw the bag and the axe, yes. Correct. Q. Notwithstanding your realisation that there was a real risk to you from this person, you drew attention to your presence on the first level by calling out, "Security"? A. Yeah. Q. You, knew that by calling out, "Security", the man might do one of two things. He might attack you or he might turn around and flee, correct? A. Yeah. Obviously, I was hoping he'd flee. Q. But you had it in mind that there was a risk that he might do the opposite and attack you? A. Well, of course there's that risk. Q. You decided to take that risk? A. No, I didn't take the risk. I was hoping he'd take off. Q. But by calling out "Security", you took that risk, didn't you? A. Well, yeah, I did call that out. Q. So, you decided to take the risk that he mightn't attack you, correct? A. Well, yeah, I was hoping he'd take off, like I told you. Q. But notwithstanding you knew it was a risk to you by calling out, "Security"? A. Well, obviously. Q. When the risk didn't pay off, you then turned around and fled down the escalator, correct? A. That's right.
In acting as he did, the plaintiff completely abandoned the instructions set out in the various manuals of which he was aware and, in doing so, put himself in a position of extreme danger. The plaintiff knew what to do if he became aware of the presence of an intruder on the premises. He knew that pursuing an intruder was not a matter for him and that he should not, under any circumstances, even attempt to approach such a person. The plaintiff, by acting as he did, placed himself in a position of extreme vulnerability, and extreme danger, for which he was solely responsible.

[21]

EVENTS FOLLOWING THE SUBJECT INCIDENT

On 17 March 2010 at 8:10am Mr Stanwix sent an email to a number of people (including Georgia Hall) in the following terms: [109] Last night during lockdown 2 offenders scaled the shutters and gained access to the centre. The security guard saw this on camera and immediately attended. The offenders were trying to break into Dick Smith and Spotlight. The guard confronted them and they produced (and threatened him) with an axe. They ran at the guard with the axe wielding and he sensibly took flight! The guard made it back to the security office and called Police. The offenders fled but the guard followed them at a safe distance. He communicated with Police and they apprehended the offenders! As all the finer details come to hand I will advise so that you can communicate to Dick Smith if you wish. A great result even though it would have been a terrifying experience for the guard! I commend his bravery! Regards, Richard.
It should be noted that the references to there having been two offenders, and to the guard following the offenders at a safe distance, are not in accordance with the evidence before me.
On 17 March 2010 Alison Hall replied to the email of Mr Stanwix in the following terms: [110] Good Morning All, I have spoken to Security at Lidcombe regarding the incident last night and it appears we are vulnerable on Level 1 with a small gap between the roller shutter and the balcony. I will start looking at our options as a matter of urgency as this is the second similar incident within a month and we do not want word to get out we are an easy target. In addition I was contacted by Security at 8.52pm last night regarding the auto doors on Level 1 that would not close. Dorma attended and they were fixed by the shift changeover at 10pm, this is probably not related but worth noting. Thanks again to Jengas (sic) who handled the situation well with a good outcome. Kind regards, Alison Hall Asset Manager SPG Investments
It is appropriate to note at this point that in the course of final submissions, senior counsel for the plaintiff relied generally upon the contents of these emails, and specifically upon the compliments given to the plaintiff by Mr Stanwix and Ms Hall, as evidence supporting a conclusion that the plaintiff had not breached any security instructions, procedures or protocols at all, or that if he had, any such breach was inconsequential. I accept that this correspondence does not contain any suggestion that the plaintiff breached any instruction, procedure or protocol. However, that is not to the point. For the reasons I have given, the evidence overwhelmingly supports a conclusion that the plaintiff knowingly breached his instructions in a number of material respects.

[22]

THE EXPERT EVIDENCE

The plaintiff relied upon the expert opinion of Terrence Flanders, a security expert who prepared a report dated 31 July 2013. [111] Under the heading "Report Findings" [112] Mr Flanders stated (inter alia) the following: 64. About 1.15am on Wednesday 17 March 2010 the Plaintiff while employed as a security guard at Lidcombe Power Centre, 92 Parramatta Road Lidcombe NSW 2141. Responding as instructed to an incident within the site, the Plaintiff was allegedly assaulted by an intruder and suffered psychiatric/psychological injuries. 65. A number of separate entities appear to have had control over workplace systems. Yet while these separate entities were working together it would appear that none of them took responsibility to rectify a weakness in the physical security at the site. A weakness that had allowed an earlier intruder access to assets in the internal retail precinct. A weakness that could be expected to be exploited by the same intruder or an associate, sometime in the future. A weakness that still has not been corrected 66. The injuries suffered by the Plaintiff are a direct result of the inaction of management to assess security risks and implement cost effective controls within a reasonable time frame. As such and based on the available information, I am of the opinion that failures in the Defendant's workplace systems led directly to the injuries suffered by the Plaintiff. 67. At this time failures in the Defendants system of work based on the available information include, but are not limited to: A. Failure to comply with the Occupational Health and Safety Act 2000 (Section 8 Duty of Employers) • Not correcting a reported site physical security weakness in a timely manner that being the blocking the air space/void above the roller door. • Not conducting a security risk assessment after being notified of the security weakness reported by the Plaintiff in February 2010. • Not providing adequate instruction or training to the Plaintiff • Instructing the Plaintiff to investigate incidents at the Lidcombe Power Centre alone at night. • Not instructing the Plaintiff to immediately contact Police, await their arrival in a secure location and then respond to an incident. • Failing to provide a second security guard to work the night shift. • Failing to install audible contact alarms to external doors to alert night guards to a forced entry. • Failing to install alarmed movement detectors in corridors immediately behind external doors so that nigh guards would be alerted to movement at entry points after lockdown. • Failing to install CCTV cameras inside stairwells at ground floor level • Failing to provide a back to base radio monitoring system to support guarding activities. • Failing to provide a call centre to monitor and respond to mobile telephone calls • Failing to install adequate security signage • Failing to install adequate lighting • Failing to apply target hardening principles as described in Crime Prevention Through Environmental Design •Not applying a safe system of work based on AS/NZS 4801:2001 Occupational Health 8c Management Systems B. Failure to comply with the Occupational Health and Safety Act 2000 (Division 2 - Duty to Consult) • Not conducting a security risk assessment after being notified of the security weakness reported by the Plaintiff in February 2010 • Not responding to reported incidents that lead to the Plaintiff's injuries • Not including security guards in the site health and safety committee C. Failure to comply with the Occupational Health and Safety Regulations 2001 (Chapter 2 - Places of work-Risk management and other matters) • Not conducting security risk assessments at the site • Not conducting a security risk assessment after being notified of the security weakness reported by the Plaintiff in February 2010
Mr Flanders then expressed the following conclusions: [113] 68. It is well known generally that retail/wholesale businesses are subject of thefts and act as an attractor to criminal's intent upon stealing. It is also well known that when criminals are confronted they may engage in a flight or fight response. A security risk assessment along with administrative processes outlined in free publicly available health and safety material from WorkCover NSW are a cost effective and reasonable way for any businesses exposed to the known risk of workplace violence to reduce the likelihood of violence in the workplace. 69. Legislation, WorkCover Codes of Practice, WorkCover guides and Australian Standards have all evolved to alert business managers how to overcome past mistakes. To purposefully ignore the law and standards is unconscionable 70. Not to apply cost effective and reasonable controls to prevent workplace violence is a failure to provide a safe work place and safe systems of work. In my view the failure to implement the control measures referred to in this report resulted in the Plaintiff's injuries.
One of the fundamental assumptions upon which Mr Flanders acted in forming his opinions was set out at paragraph [47] of his report in the following terms: [114] The plaintiff was not formally inducted into the operation of workplace systems at the site. Instead he was shown around the site once and then put on a night shift alone. If Security policies and procedures were available, their location and content were unknown to the plaintiff.
In his oral evidence, Mr Flanders confirmed [115] that the plaintiff had informed him that he had not been shown any security policies or procedures when he commenced employment at the premises. Mr Flanders was in no doubt that this was what he was told by the plaintiff. [116] He agreed that these instructions (as well as others) formed the basis of the conclusions he had expressed in his report. [117]
It is clear from his evidence that in forming his opinions, Mr Flanders accepted the information provided to him by the plaintiff as to his (i.e. the plaintiff's) lack of training and instruction [118] in security policies and procedures: Q. So when you make that report do you assume that to be correct? A. Yes. Q. You considered it a matter of some significance that Mr Capar had not been given instructions to immediately contact police, await their arrival in a secure location and then respond to the incident. A. That's correct. Q. If it were the fact that he had been given those instructions then that would lead you to form a different view, would it not? A. That's right. Q. Yes. You would change the views that you expressed in your report. A. If that were the case, yes.
Mr Flanders' evidence also included the following: [119] Q. Your assumption was that Mr Capar had no instructions about how to conduct himself in the event that an intruder entered the building. Is that correct? A. Yes. Q. Your assumption was that he was not given instructions that accorded with best practice about staying away from intruders, not in any way interfering with them, observing from a remote location and calling the police? A. That's correct. Q. And you based your report on those assumptions? Is that correct? A. Yes.
Clearly, the assumption set out at paragraph [47] of his report, upon which Mr Flanders acted in forming his opinions, was incorrect. As I have previously outlined at length, the evidence establishes that the plaintiff knew and understood the various instructions contained in the manuals. Any suggestion that the plaintiff was not instructed as to (inter alia) what to do when he became aware of the presence of an intruder is completely at odds with the evidence. It follows that in forming his opinions, Mr Flanders proceeded on a fundamentally incorrect assumption. [120]
In these circumstances, the following evidence of Mr Flanders is of some significance: [121] Q. Best practice would require a security guard who becomes aware of an offender on premises to stay away from that offender. Correct? A. There's a little bit in the front of that but, yes, at the back end of it, yes. Q. Best practice would require the security guard to monitor the situation from a distance. A. Yes. Q. If the security guard had a security room with CCTV monitors, that is an ideal location to monitor the situation from a remote situation, is it not? A. It could be. Q. And if the security guard had a telephone, the ideal situation would be for the security guard to telephone the police. A. I would recommend that. Q. It would be dangerous for the security guard to leave the security of the security room and approach the offender. A. Depending on the circumstances. Q. And a security guard in that situation would be far safer by locking the door on the security room and waiting there until the arrival of the police. Correct? A. In some circumstances, yes. Q. If you were setting up a system in accordance with best practice, they would be the requirements of that system, would they not? A. Not all the requirements. Q. A very important element of the requirements. A. Not the most important. Q. But an important element of the requirements, correct? A. An element of the requirements. Q. Would you say one of no importance? A. I didn't say it's of no importance. Q. So you say it's an element that's important, do you? A. No, it's just an element. I don't give the value yet. Q. Did Mr Capar tell you that he understood his instructions, based on the various documents I've taken you to, to be that he was not to approach intruders on to the premises? A. No. Q. Did he tell you that it was his understanding that he was permitted to approach intruders on to the premises? A. I know that he did. Q. Sorry? A. I know that he did. He did approach them. Q. I'm not asking you what he did. A. I'm just trying to think what he told me about the documents that you're presenting to me that he didn't see them. Q. He told you that he didn't see any documents of this type? Correct? A. That's right. Q. So you based your reports and conclusions on that assumption? A. That's right.
Other aspects of Mr Flanders' report, and his evidence, are also worthy of comment. As I have noted above, [122] one of the failures on the part of SPG which Mr Flanders identified was a failure to comply with the Occupational Health and Safety Act 2000 (NSW) by, in particular, "not applying a safe system of work based on AS/NZS 4801:2001 Occupational Health & Management Systems". When cross-examined as to this issue, Mr Flanders accepted that he was entirely unaware of the particular part of that provision to which he was referring when expressing that view. [123]
Further, Mr Flanders formed his opinions having regard to (inter alia) three inspections of the premises. He conceded that each of those inspections was "cursory". [124] Not one of them included an inspection of the control room. [125] Mr Flanders was cross-examined about these matters as follows: [126] Q. And you only wrote a cursory report. A. Based on a cursory site inspection. Q. So we just had a cursory report based on a cursory site inspection. Correct? A. I wouldn't call the report cursory. It was based on in part on a cursory site inspection.
Quite apart from these obvious shortcomings, and having observed him carefully as he gave evidence, I found Mr Flanders to be a less than satisfactory witness. He gave the distinct impression that he perceived his role to be that of an advocate for the plaintiff, rather than an independent expert whose primary duty was to assist the Court. My conclusion in that regard arose, in part, from the fact that Mr Flanders was often argumentative when giving evidence, and on occasions displayed an obvious reluctance, sometimes to the point of refusal, to concede the most obvious of propositions that were put to him, seemingly out of concern that to do so might not assist the plaintiff. I formed the view that in that sense, Mr Flanders had a tendency to tailor at least some of his answers so as to express them in terms which he thought would be most conducive to the plaintiff's best interests.
Such approach was typified by Mr Flanders' answers when cross-examined in relation to the provisions of clause 41 of the Operations Manual: [127] Q. Mr Flanders, going back to item 41, do you see that there is an instruction, "when finding a tenant's premise has been broken into or forced entry has been identified, security personnel are to do as follows", and then there's a series of bullet points as the things that they were to do or not to do. A. Mm-hmm. Q. The first one is, "Do not enter premises, offenders still may be on site." You see that? A. Yes, I do. Q. That was a clear instruction as to staying away from offenders, was it not? A. Well, no, they're saying go over to the premises and if you find they're broken into, you're already there. So, I don't - it would be on the guard how close he got to the breach. He might only be feet away from somebody hiding behind the other side of a broken door or - it's directing the guard to go to the site where the crime has been committed, and once you get there and you see that it's broken, don't go in. Q. Where does it say - where is it directing - which words do you say are directing the guard to go to the premises that have been broken into? Which are those words? A. Well, it says, "Do not enter premises." Q. But which are the words that you say are directing the guard to go to the premises? A. Well, how does a guard know that they've been broken into if he doesn't go there? … Q. The question is, which of the words that you refer to in this item which you say direct the guard to go to the premises that have been broken into? A. It's not explicit but it's implied. Q. I see. Implied from which words? A. The title, "Tenant Break-ins. When finding a tenant's premises", that. Q. So, you say that "when finding a tenant's premises" implies a direction to the guard to go to a tenant's premises that have been broken into, is that what you suggest? A. It's not exactly what I suggested. That's the way that I'm taking the meaning. Q. Even if you're right about that, it's quite clear, isn't it, that the guard is being instructed not to enter the premises? A. Yes. Q. And that's because quite obviously offenders might still be on the site? A. Yes. Q. That was a very clear instruction, wasn't it? A. I have difficulty answering that question when you use the word "clear." I'm not familiar with this document. The document that I had had contradictory advice in it that when you took it in total made it unclear. Q. But if you assume that this is the document that Mr Capar read when he commenced working at the centre, that's a very clear instruction not to enter into premises which appear to have been broken into, wasn't it? A. Solely on its own in this section, yes. Q. And the next bullet point is an instruction to, "Back off and retreat to a safe distance to where you can still see the premises clearly." Do you see that? A. Yes. Q. That was a clear instruction as to what had to be done in those circumstances, isn't it? A. Yes. And it also supports my interpretation of it.
Having given that evidence Mr Flanders was then asked: [128] Q. The other items clearly instructed the guard to wait for the police to arrive and then enter the premises with the police, correct? A. That's correct. Q. So that the whole tenor of this item was telling the guard not to engage with offenders but to back off, call the police and wait till the police arrived. Correct? A. That's one view, yes. Q. And that's in accordance with industry practice and protocols, is it not? A. Yes.
Those passages of cross-examination were reflective of what I regard as the generally unsatisfactory nature of Mr Flanders' evidence.
For these reasons, I place no weight upon his report, his oral evidence, or his opinions.

[27]

Consideration

One effect of s 32 of the CLA is that a duty of care is not owed by a defendant to a plaintiff unless a particular condition is satisfied, namely 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. Whilst s 32(2) identifies four circumstances encompassed by the phrase "the circumstances of the case", they are not exhaustive.
Another effect of s 32 is that it imposes a qualification on the test of reasonable foreseeability by specifying three elements that a defendant ought to have foreseen, namely: 1. that a person of normal fortitude might; 2. in the circumstances of the case suffer; 3. a recognised psychiatric illness if reasonable care were not taken. [134]
In Optus, Basten JA observed: [135] Because it is necessary to assess whether a person of normal fortitude would suffer a recognised psychiatric illness "in the circumstances of the case", it may be necessary to specify the critical event with a degree of precision. For example, a course of conduct involving bullying or abuse directed at an individual employee may satisfy the criterion, whereas an individual instance of abuse in an otherwise harmonious workplace may not. Further, it is implicit in the expression of the criterion that the circumstances which might lead a person of normal fortitude to suffer a psychiatric illness must themselves be reasonably foreseeable.
In the present case, the question to be asked for the purposes of s 32 is whether it was reasonably foreseeable that an intruder who came on to the premises might threaten the plaintiff in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude. That question is to be answered by reference to "the circumstances of the case", including those in s 32(2) which are individual considerations that may bear upon the question of whether SPG and BPG ought to have foreseen that the plaintiff might suffer a recognised psychiatric illness if reasonable care were not taken. [136]
In terms of the individual circumstances set out in s 32(2), the plaintiff was clearly subjected to a sudden shock, [137] as a consequence of which he asserts that he suffered mental harm. There was no warning that an intruder would come on to the premises. The plaintiff did not witness any person being killed, injured or put in peril, although the plaintiff himself was obviously in peril. [138] There was some pre-existing relationship between the plaintiff and each of SPG and BPG. [139] SPG owned the premises on which the plaintiff was present. BPG arranged security services for the premises, and was at least partly responsible for devising aspects of the plaintiff's system of work and training.
However, as I have noted, s 32(2) does not purport to constitute an exhaustive list of relevant circumstances. The circumstances of the present case necessarily encompass the conduct of the plaintiff as I have described it. The plaintiff's conduct commenced with him being alerted by CCTV footage to the sudden presence of the intruder entering the premises. The plaintiff made that observation from the secure confines of the control room. He did so in circumstances where it was obvious that the intruder was armed, and that he was intending to commit some criminal act.
The fact of becoming alerted to the presence of the intruder came against a background of the plaintiff having been given clear and unequivocal instructions about what he was to do in such a situation. Fundamentally, the plaintiff knew that it was no part of his role to pursue an intruder. He also knew that he was not to intervene when such a situation presented itself, and was to call the police and wait for their arrival.
The plaintiff acted completely contrary to the instructions that he had been given. He left the safety of the control room unarmed, and went to level one of the premises, the precise area where he knew that the intruder was likely to be present. He had no cogent reason for doing so. Having reached level one, he placed himself in a position of acute vulnerability by effectively waiting by the escalator for the intruder to emerge. Having waited for a period of approximately 41 seconds, the plaintiff then inexplicably drew the attention of the intruder to the fact that he was a security guard, prompting the intruder to threaten to kill him.
In my view, taking into account all of the circumstances, it was not reasonably foreseeable to either SPG or BPG that the intruder might threaten the plaintiff in the manner in which he did. I have reached this conclusion for a number of reasons.
Firstly, the presence of the intruder was sudden and unexpected. There was no forewarning that the intruder would arrive at the premises on this particular occasion as he did.
Secondly, the plaintiff was a trained security guard. He had been instructed that pursuing offenders was not a matter for him, but was a matter for the police. Those instructions were repeated, and were conveyed in clear and unequivocal terms which, for the reasons I have already set out, I am satisfied that the plaintiff knew and understood.
Thirdly, the plaintiff knew that in acting as he did, he was acting with complete disregard for his own safety.
Fourthly, having left the control room contrary to the instructions given to him, the plaintiff then compounded the gravity of what he had done by waiting for the intruder, only to then expressly draw the intruder's attention to his presence, in circumstances where he knew that the intruder was armed and was in close proximity.
Fifthly, and leaving aside the fact that the plaintiff acted in a way which was at odds with the instructions which had been given to him, his conduct completely defied common sense, and had no legitimate purpose.
In my view, SPG and BPG were each entitled to assume that no person in the plaintiff's position, who had been given the instructions that the plaintiff had been given, would act in the manner in which the plaintiff acted. In particular, SPG and BPG were each entitled to assume that if alerted to the presence of an intruder from within the control room, the plaintiff would do as he had been instructed.
SPG and BPG were also each entitled to assume that in circumstances where the plaintiff knew that the intruder was armed and was likely intending upon committing a criminal act, he would not leave the control room unarmed and follow the intruder. They were also entitled to assume that having done so, the plaintiff would not place himself in a position of extreme peril by waiting in an about the area where he suspected the intruder to be, only to then expressly draw the intruder's attention to his presence.
It follows that in all of the circumstances of the case, it was not reasonably foreseeable that the intruder might threaten the plaintiff as he did. In these circumstances, having regard to the operation of s 32 of the CLA, neither SPG nor BPG owed the plaintiff a duty of care. The plaintiff's case against each of SPG and BPG fails on this basis. However, notwithstanding that conclusion, it is necessary for me to address a series of other issues in respect of which the parties made submissions. The first of those issues, s 32 of the CLA aside, concerns the nature and scope of any common law duty of care owed by SPG and/or BPG to the plaintiff.

[28]

Submissions of the plaintiff

Senior counsel for the plaintiff submitted that SPG owed the plaintiff a duty of care in three respects.
Firstly, it was submitted that as the occupier of the premises, SPG had the responsibility for their care, control and management, and therefore owed a duty to exercise reasonable care for the safety of persons who were lawfully on such premises.
Secondly, given the purpose for which, and the circumstances in which, the plaintiff was on the premises, it was submitted that SPG, as the occupier of the premises, owed the plaintiff a more generalised duty of care in relation to any risk of injury to which the plaintiff might be exposed whilst on the premises.
Thirdly, it was submitted that following the February incident, SPG's duty of care extended to the taking of reasonable care to protect a person in the position of the plaintiff from a risk of injury consequent upon the unlawful entry of persons onto the premises, after the premises had closed, by means of the gap near the fire stairs.
Senior counsel for the plaintiff submitted that as the occupier of the premises, SPG should have controlled access to them, particularly in circumstances where the commercial activities conducted on the premises were of a kind likely to attract the interest of wrongdoers. He submitted that on these bases, the duty of care owed to the plaintiff by SPG extended to a duty to provide the plaintiff with a safe place of work.
As against BPG, senior counsel for the plaintiff submitted that a duty of care arose in three ways.
Firstly, it was submitted that by reason of its engagement by SPG, BPG became an occupier of the premises and that accordingly it owed to the plaintiff, as a person lawfully present on the premises, a duty to exercise reasonable care for his safety.
Secondly, it was submitted that having engaged Dynamite to provide security services, SPG owed the plaintiff a duty of care which was analogous to that owed by an employer to an employee, which encompassed a duty to provide a safe place of work, a safe system of work, and safe plant and equipment. It was submitted that this was so, even if it were concluded that BPG had no direct dealings with the plaintiff, and had no physical presence on the premises.
Thirdly, it was submitted that upon the February incident occurring, BPG owed a duty of care to the plaintiff which, if it did not already do so, extended to a duty to take reasonable care to protect a person in the position of the plaintiff from a risk of injury following upon the unlawful entry of persons onto the premises, after the premises had closed, by means of the gap above the fire stairs.

[31]

The position of SPG

At the time of the subject incident, SPG was the occupier of the premises and the plaintiff was a lawful entrant. SPG did not take issue with the proposition that it owed the plaintiff a duty, in accordance with ordinary principles of negligence, to take reasonable care to avoid a foreseeable risk of injury to him. [140] The real issue in the present case is whether any duty owed by SPG extended beyond that, so as to encompass: 1. a duty of care in relation to any risk of injury to which the plaintiff might have been exposed as a consequence of his entry onto the premises; and/or 2. a duty to take reasonable care to protect security guards on the premises, when the premises were closed, from risk of injury consequent upon the unlawful entry onto the premises of a person by means of the gap over the fire stairs.
That issue is to be determined by reference to a number of factors, one of which is the nature of any relationship between SPG and the plaintiff.
SPG and the plaintiff had no relationship other than that of occupier and entrant. SPG did not employ the plaintiff and accordingly had no control over the manner in which he discharged his duties and responsibilities. That, in my view, is a factor which tends against a conclusion that the duty owed by SPG to the plaintiff extended beyond that arising from the relationship of occupier and entrant.
Further, as a general proposition, the common law does not impose a duty of care on one person to protect another person from the risk of harm unless that person has created the risk. [141] Although such statement of principle was made in the context of duties imposed upon public authorities, it remains one of general application. The submissions advanced on behalf of the plaintiff in support of a conclusion that an extended duty of care was owed by SPG were based, at least in part, upon the proposition that SPG knew of the gap over the fire stairs around the time of the February incident. For the reasons I have already set out, I am not satisfied that SPG did know of the gap prior to the subject incident, much less that it created it.
Moreover, the common law does not ordinarily impose liability for omissions. [142] In Smith v Littlewoods Organisation Limited [143] Lord Goff of Chieveley observed: … it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage (emphasis in original).
In Pyrenees Shire Council v Day [144] McHugh J observed that the common law renders a person liable in damages for a failure to act only when some special relationship exists between the person harmed and the person who fails to act. Similarly, in Smith v Leurs [145] Dixon J observed that the common law does not generally impose any duty on a person to take steps to prevent even very serious harm befalling another. Those statements of principle tend against a finding that SPG owed the plaintiff any extended duty of care of the kind for which the plaintiff contends.
Further, and for the reasons I have already set out, the plaintiff clearly knew that in pursuing the intruder he was acting completely contrary to the instructions he had been given. He also knew that by acting that way, he was placing himself in great danger. That, in my view, has a direct bearing upon the scope of any duty which SPG might have owed the plaintiff, and tends against a conclusion that such duty extended beyond that imposed by the relationship of occupier and entrant. In Papatonakis v Australian Telecommunications Commission [146] Mason J observed that the content of an occupier's duty to exercise reasonable care for the safety of an invitee will vary according to the circumstances, including the degree of knowledge and skill which may reasonably be expected of the invitee, and the purpose for which the invitee is on the premises. In the present case, the plaintiff, who was not engaged or employed by SPG, was present on the premises in the capacity of a trained security guard who had been instructed about what to do when an intruder came onto the premises, and who acted contrary to those instructions. SPG was entitled to expect that he would do as he was instructed, and act in a way which was conducive to protecting his own safety.
Another difficulty faced by the plaintiff in seeking to extend the duty of care owed by SPG arises from the fact that his injuries were a consequence of the criminal behaviour of an intruder whose entry was unauthorised and unexpected. In Modbury Triangle Shopping Centre Pty Limited v Anzil and ors [147] ("Modbury") the plaintiff, who was an employee of a store owner in a shopping centre, sued the centre (as occupier) for damages arising out of an assault perpetrated in a car park at a time when the lighting which would otherwise have illuminated the area was turned off. Gleeson CJ observed [148] that whilst the occupier owed the plaintiff a duty of care in relation to the physical state and condition of the car park of the premises, it was another question entirely as to whether the occupier owed a duty of a kind relevant to the harm which befell the plaintiff, namely the assault. Having noted [149] that the occupier had no control over the behaviour of those who were responsible for the assault, and no knowledge or forewarning of what they planned to do, his Honour said: [150] [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. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions. This was explained by Lord Goff of Chieveley in Smith v Littlewoods Ltd. His Lordship said, with reference to a general duty of an occupier to take reasonable care for the safety of neighbouring premises: "Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood … then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage." (original emphasis)
Whilst his Honour found it unnecessary to express a concluded view as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, in the absence of some special relationship, the common law would impose a duty to exercise reasonable care to prevent harm to another from such behaviour, he noted that as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another. His Honour then said: [151] … To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. There was nothing special about the relationship between the appellant and the first respondent. There was nothing about the relationship which relevantly distinguished him from large numbers of members of the public who might have business at the Centre, or might otherwise lawfully use the car park. Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.
In the same case Hayne J reiterated that whilst an occupier of land owes a duty of care to those who enter it, [152] in cases where a duty to control the conduct of a third party has been held to exist, the party found to have owed the duty has had the power to assert control over the third party. [153] That is obviously not the case here. His Honour went on to say: [154] [113] The appellant, in this case, did not control what happened to the first respondent. It is not enough to say that the appellant had power to act in a way that may have made the occurrence less likely (by leaving the lights on). That is doing no more than restating, in other words, a conclusion about foresight or, perhaps, causation. The conduct which caused the first respondent's injuries was deliberate criminal wrongdoing. By its very nature that conduct is unpredictable and irrational. It occurs despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That is, such conduct occurs despite the efforts of society as a whole to prevent it. Yet the respondents' contention is that a particular member of that society should be held liable for not preventing it. [114] I have emphasised the inability of the appellant to control the conduct of the assailants who injured the first respondent because a duty to take steps to control that conduct should not be found if the person said to owe the duty has not the capacity to fulfil it. It may be said, however, that analysing the matter in this way pays too much attention to the position of the occupier and too little to the position of the injured party. In particular, it may be said that the question should be whether the occupier could reasonably have hindered the offending behaviour, if only by doing something which would have better allowed the injured party to protect himself from attack. …. [116] To hold that the appellant owed a duty to take reasonable steps to prevent or hinder the attack on the first respondent is not only to hold the appellant responsible for conduct it could not control, it is to impose liability on it when its contribution to the occurrence, compared with that of the assailants, is negligible. As Professor Stapleton points out, the coherence of tort law depends upon "the notions of deterrence and individual responsibility". Those values would be diminished if the appellant is held to owe a duty of care of the kind for which the respondents contend. To accept the respondents' submissions would be to impose a duty which does nothing to deter wrongdoing by the appellant or other occupiers. Further, it would shift financial responsibility for the consequences of crime from the wrongdoer to individual members of society who have little or no capacity to influence the behaviour which caused injury. [117] Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action.
In the present case, SPG had no control over the plaintiff, and no control over the intruder. Further, given my conclusion that SPG was not aware of the gap, this was not a case in which SPG had failed to control access to, or the continued presence of persons on, the premises.
The circumstances in which one party might owe a duty of care to another in relation to the criminal behaviour of a third was also considered in Ashrafi Persian Trading Company Pty Limited t/a Roslyn Gardens Motor Inn v Ashrafinia [155] . In that case, the respondent suffered severe injuries as a result of being assaulted by an unknown person whilst sleeping in a ground floor room of a motel occupied by the appellant. The respondent successfully sued the appellant, as occupier, for damages at first instance. Heydon JA (as his Honour then was, and with whom Mason P and Handley JA agreed) allowed the appellant's appeal and concluded that the trial judge had erred in concluding that the appellant owed a duty of care to prevent the respondent from being attacked by a third party.
In my view, there was nothing particular about the relationship between SPG and the plaintiff which would support the conclusion that a duty of care, over and above that imposed by the relationship of occupier and entrant, was owed to the plaintiff by SPG. In those circumstances, and bearing in mind that the plaintiff's asserted injuries were brought about by the unlawful act of a third party, I accept the submission of senior counsel for SPG that it would be generally contrary to both authority and principle to conclude that SPG owed the extended duty of care for which the plaintiff contends.

[32]

The position of BPG

BPG had the obligation of providing security services at the premises. BPG did not own or lease the premises and had no physical presence there, for example by way of an office. There is no evidence that BPG controlled any commercial activity on the premises, or controlled who could come onto, and go from, the premises. All of these circumstances, particularly the absence of any control, [156] support the conclusion that BPG was not an occupier of the premises.
That leaves the question of whether BPG owed the plaintiff a duty of care which was analogous to that owed by an employer to an employee. In the course of his submissions, senior counsel for the plaintiff referred me to the decision in Karatjas v Deakin University [157] ("Karatjas") in support of the proposition that BPG did owe such a duty of care. In Karatjas the appellant, who was an employee of a contractor which operated a cafeteria on the campus of Deakin University, was assaulted in the course of walking to her car. Ordinarily, the appellant made her way to her car by means of a well-lit path, however temporary arrangements had been put in place which had necessitated her taking an alternative route to the car park. It was not disputed that the appellant's employer (the contractor) owed her a duty to take reasonable care to provide a safe system of work. The respondent University argued, by reference to Modbury, that the appellant had failed to establish that it owed her a duty of care. That submission was upheld by the trial judge. However, the appellant's appeal was successful
In referring to Modbury, Nettle JA (as his Honour then was, and with whom Hansen JA and Kyrou AJA agreed) concluded [158] that the mere fact that the University was the occupier of the campus was not a sufficient basis on which to impose a duty of care to guard entrants to the campus against the risk of criminal attacks by third parties. In the present case, for the reasons I have already outlined, BPG was not even an occupier of the premises. Taken by itself, his Honour's reasoning would support a conclusion that BPG did not owe the plaintiff a duty to prevent injury arising from criminal acts committed by a third party such as the intruder.
However, having made reference to the decision in Stevens v Brodribb Sawmilling Co Ltd [159] ("Stevens") Nettle JA said (in passages specifically relied upon by senior counsel for the plaintiff): [160] [35] Parity of reasoning implies that, where a defendant retains an independent contractor to carry out the work; the contractor carries out the work through the agency of employees; and there is a need for the defendant to give directions as to when and where the work is to be done by those employees, the defendant owes to the employees an obligation to provide a safe system of work in relation to those aspects of the work. [36] Of course, there is a difference. In Brodribb there was a contractual relationship between the principal and the contractor. In a case like this, where the principal retains a contractor and the contractor engages the employees, there is no contract between the principal and the injured employee. But the lack of a contract is not determinative. Liability in negligence turns on foreseeability and proximity, the total relationship between the parties and questions of fairness, policy, practicality, proportion, expense and justice. Contract aside, the question is whether it is reasonable to require the principal to have in contemplation the risk of injury to the worker which eventuates. Hence, as English shows, here a principal retains a contractor who engages employees, but the principal retains control over some aspect of the work, it may be reasonable for the principal to have in contemplation the risk of injury to the contractor's employee arising out of that aspect of the work.
His Honour's reference to English was a reference to the decision in English v Rogers [161] in which it was found that the owner of a hotel was liable to an employee of a contract cleaner for injuries sustained whilst working at the hotel in the early hours of the morning.
His Honour stressed the importance of looking at the totality of the circumstances in order to determine whether a duty of care was owed. In the present case, and although the relationship between BPG and the plaintiff was not strictly one of employer and employee, I am unable to accept the submission advanced by senior counsel that BPG and the plaintiff had no relevant relationship at all. This is so for a number of reasons.
Firstly, there is unchallenged evidence that the plaintiff wore a uniform which bore the BPG logo. [162]
Secondly, I am satisfied, for the reasons previously set out, that Bill Morris, the BPG Operations Manager, was at least partly responsible for the plaintiff's training. [163]
Thirdly, and consistent with what I have found to be the training role played by Mr Morris, the various manuals which contained the instructions to the plaintiff as to security procedures to be adopted were issued by BPG. [164]
Fourthly, the email of Mr James, the Managing Director of BPG, of 16 February 2009 prescribed aspects of the system of work to be adopted at the premises. It also directed that any reports in relation to security issues be directed (amongst other people) to him. In these respects BPG had some degree of control over the plaintiff. [165]
All of this evidence establishes that there was a relationship between BPG and the plaintiff which, relevantly, extended to matters of the system of work, training and reporting. In each of those respects, BPG had some control over the plaintiff's conduct, and the discharge of his responsibilities. In these circumstances, I am satisfied that the relationship between BPG and the plaintiff was such as to impose a duty of care on BPG to provide the plaintiff with a safe system of work.
The further question is whether or not that duty of care extended to a duty to protect the plaintiff from the criminal behaviour of an intruder. In Modbury Gleeson CJ [166] identified the relationship between employer and employee as being in one in which such a duty may be owed, regardless of the fact that such behaviour may be both random and unpredictable. One of the authorities to which his Honour referred in that context was Chomentowski v Red Garter Restaurant Limited. [167] In that case, the plaintiff had been employed by the defendant as the head waiter and manager of a restaurant, and had the responsibility to deposit takings in the night safe of a bank near the restaurant. When doing so in the early hours of one morning, the plaintiff was attacked and robbed, suffering severe injuries for which he was awarded damages. On appeal it was asserted that there was no evidence upon which the jury could properly have found that the defendant employer was liable. In dismissing the appeal, the Court concluded that a duty of care arose from the relationship between the plaintiff and the defendant. Sugerman P [168] found that it was open to the jury to conclude from all of the circumstances that there was a reasonably foreseeable risk of robbery, and of injury to the plaintiff. His Honour went on to say: [169] Everything depends in each case on the circumstances. If no more appeared than subjection to the degree of risk which everybody takes each time he goes to or from a bank with money - the degree of risk as to which I have suggested that if a mathematical assessment of probabilities could be made it might well be found to be very small - it might be held in particular circumstances that a reasonable man would be justified in ignoring it. However, I am not called upon to decide that case. The only case which I do have to decide is one of exposure of an employee to an enhanced risk - a jury might well think a greatly enhanced risk - peculiar to himself as originating from the circumstances in which he was required to perform his duties…
In Ashrafi Heydon JA [170] made reference to relationships in which one party may have a duty to protect another from the criminal conduct of a third. One of the relationships to which his Honour referred in that context was that of employer and employee, although his Honour also observed [171] that ultimately the determination rested upon the existence of particular circumstances which rendered it just to impose a duty of care.
In the present case, and quite apart from the matters to which I have already referred, [172] the relevant circumstances included the fact that the premises housed a number of commercial businesses which, as a matter of common sense, would necessarily attract the interest of potential criminals. That was obviously a circumstance known to BPG, because it was BPG who was engaged to provide security services at the premises. It was as consequence of that that the plaintiff came to be employed by Dynamite.
In all of these circumstances, I am satisfied that the duty owed by BPG extended to taking reasonable care to prevent the plaintiff from being attacked as the consequence of the behaviour of an intruder who came onto the premises.

[37]

CONSIDERATION

For the purposes of s 5B of the CLA, the relevant enquiry is prospective. [175] Hindsight reasoning, in which a retrospective identification is made as to what would have avoided the injury, reflects an erroneous approach.
For the purposes of s 5B, the proper formulation of the risk faced by the plaintiff in the present case was the risk that he might sustain injury as a consequence of an encounter with an intruder. In my view, the formulation of risk relied upon by the plaintiff [176] involves adopting a retrospective approach to the events that are now known to have happened. [177]
Having regard to the nature of the premises, and the plaintiff's position, I am satisfied that the identified risk was both foreseeable [178] and not insignificant. [179] The real question is whether a reasonable person in the position of SPG and or BPG would have taken precautions.
In determining that question, I must take into account the provisions of s 5B(2) of the CLA. I am satisfied that there was a probability that harm would come to the plaintiff if care were not taken, [180] and that having regard to all of the circumstances, including the nature of the plaintiff's work, there was a likelihood that such harm would be serious. [181] There is no social utility in intruders making unauthorised entry into commercial premises. [182]
In the case of SPG, the plaintiff placed significant emphasis upon what was submitted to be SPG's knowledge of the gap over the fire stairs. However, for the reasons I have already expressed [183] the evidence does not satisfy me that SPG was aware of the gap. Beyond that, there is no evidence of any failure on the part of SPG to take precautions to avoid any identified risk. For these reasons I am not satisfied that SPG breached any duty of care that it owed to the plaintiff.
In terms of BPG, I do not accept the proposition that it breached the duty it owed to the plaintiff by not adequately training him. The plaintiff's evidence is to the contrary, as is the evidence concerning his familiarity with, and understanding of, the instructions conveyed to him in the various manuals issued by BPG. His admitted understanding of those instructions reflects the fact that his training was effective. In my view, the training which was administered reflects BPG having provided the plaintiff with a safe system of work. That training, and the instructions which were provided to the plaintiff, discharged BPG's obligation to take reasonable care to prevent the plaintiff from being attacked by an intruder.
In terms of a failure on the part of BPG to close the gap, its position is different to that of SPG by virtue of the fact that it obviously knew of the gap through Mr Stanwix. However, the response by Mr Stanwix was, in my view, a reasonable one, particularly bearing in mind that BPG was not the occupier of the premises and had no physical presence there.
For these reasons, I am not satisfied that BPG breached the duty of care it owed to the plaintiff.

[41]

CONSIDERATION

In Carey v Lake Macquarie City Council [184] ("Carey") McClellan CJ at CL, having summarised the common law defence of volenti non fit injuria, [185] concluded that the effect of ss 5F and 5G of the CLA is that a plaintiff is presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. Whilst that presumption is rebuttable, a plaintiff cannot rebut it by claiming that even though he or she was aware of the general risk of harm, they were not aware of all its possible manifestations, including the one that eventuated. [186] Accordingly, the question which must be asked is whether the conduct of the plaintiff involved a risk of harm that would have been obvious to a reasonable person in his position. [187]
Whether a risk is obvious is an objective determination which is to be made having regard to the circumstances in which the particular plaintiff finds himself or herself. [188] It is not the plaintiff's state of mind which is relevant, but what a reasonable person in his or her position would regard as obvious. However, the plaintiff's evidence remains material to that assessment.
The term "obvious" means that both the factual scenario facing a plaintiff, and the risk, are apparent to, and would be recognised by, a reasonable person in the position of a plaintiff exercising ordinary perception, intelligence and judgment [189] . In the context of the present case, a person in the position of the plaintiff would be an experienced security guard with knowledge of the presence, on premises he or she was guarding, of an intruder with obvious criminal intentions.
The essence of the primary submission of senior counsel for the plaintiff was that because the plaintiff was injured in the course of his employment, the so-called "employment cases" meant that the provisions of ss 5F and 5G did not apply. That submission was based upon commentary in Villa, in the context of the author discussing the common law defence of volenti non fit injuria [190] . Leaving aside the fact that SPG did not employ the plaintiff, the author does not suggest that the economic imperative to do dangerous work will displace any notion of voluntariness, to the point that ss 5F and 5G of the CLA will never apply to a case where a person was injured in the course of his employment. Whether ss 5F and 5G apply in the present case is not to be resolved according to whether the plaintiff was injured in the course of his employment (as was clearly the case). The question is whether the risk that I have identified was obvious in the sense contemplated by s 5F, and whether the plaintiff should be presumed to have been aware of it as contemplated by s 5G.
For the reasons I have previously set out, the plaintiff was well aware of the instructions which had been given to him in the various manuals. At their most fundamental level, those instructions made it clear to the plaintiff that in the event that an intruder came onto the premises, it was not his function to intervene. His function was to stay within the confines of the control room and call the police.
The plaintiff also knew that to act contrary to those instructions, and in particular to pursue the intruder as he did, was inherently dangerous from the point of view of his own safety. His conduct in following the intruder to level one served no purpose whatsoever. Having followed the intruder, the plaintiff inexplicably drew the intruder's attention to his immediate presence.
The plaintiff made a conscious decision to pursue, and then confront, the intruder, in the knowledge that in doing so he was breaching his instructions, breaching his training, and jeopardising his safety. The plaintiff was aware that there was a risk that he might sustain injury as a consequence of an encounter with an intruder. For these reasons the risk of sustaining injury by a direct encounter with an intruder was obvious to him. It would also have been obvious to any reasonable person in his position.
It follows that as a consequence of the operation of ss 5F and 5G of the CLA the risk of the plaintiff being assaulted was an obvious risk, of which the plaintiff is presumed to have been aware.

[48]

CONSIDERATION

There is no doubt that Dynamite owed a non-delegable duty of care to the plaintiff or, in other words a duty, the performance of which cannot be delegated on the basis that such delegation constitutes compliance with it. [196] The issue is whether or not that duty was breached.
In advancing the submission that a non-delegable duty is not one of strict liability, counsel for the Nominal Insurer relied upon the reference by Wilson and Dawson JJ in Stevens [197] to a "direction" taken by the High Court away from the notion of imposing strict liability in respect of tortious behaviour, and towards the notion that the extent of any duty of care would depend upon the magnitude of the risk involved, and the degree of its probability.
Counsel also placed particular significance on the observations of Campbell JA in Transfield Services (Australia) Pty Limited v Hall; Hall v QBE Insurance (Australia) Pty Limited [198] ("Transfield"). In that case the respondent, a member of the Royal Australian Navy Reserve, sustained injury whilst abseiling down a high ropes course. A corporation had contracted with the Commonwealth to maintain the course, pursuant to a contract which provided (inter alia) that the corporation was to ensure that any sub-contractor which was engaged by it to carry out work was to do so in a proper and workmanlike manner. A sub-contractor to the corporation had, prior to the respondent's accident, negligently failed to carry out a proper inspection of the ropes and it was argued that the contractor had owed the respondent a duty of care which could not be delegated to the sub-contractor.
It will be evident from such summary that the facts in Transfield were quite different from those in the present case. It will also be evident that the principal issue before the Court in Transfield, namely whether the contractor owed the respondent a duty of care, does not arise in this case. There is no dispute that Dynamite, as the plaintiff's employer, owed him a non-delegable duty of care.
The first submission advanced by counsel for the Nominal Insurer based upon the decision in Transfield was that Dynamite did not breach its duty because the existence of a non-delegable duty "did not make (Dynamite) strictly liable for injury to the plaintiff in the absence of breach of duty by anyone else". [199] In support of that submission, counsel relied upon the following passages of the judgment of Campbell JA [200] relating to the nature of a non-delegable duty: [55] What the non-delegable duty contemplates is a duty that is more stringent than this. It is not a duty of strict liability, in the sense that the defendant is liable for any damage suffered regardless of whether the defendant, or anyone else, has been negligent. [201] Before a plaintiff can succeed in a case based on breach of such a non-delegable duty, the plaintiff must establish that someone [202] has been negligent. However, the situation differs from an ordinary duty of care in negligence in that a person subjected to such a duty cannot perform it by taking reasonable care to select an appropriate independent contractor to carry out the acts that eventually injure the plaintiff. [56] In one aspect of its operation it may not be appropriate to call a non-delegable duty a "duty of care" at all. This is because a defendant bears liability for any injury that the plaintiff sustains by reason of a failure on the part of an independent contractor to take care not to cause the type of harm in question to the plaintiff, when there has been no personal want of care on the part of the defendant in selecting the contractor or in any other respect whatever. But the non-delegable duty of care retains the ordinary aspects of a duty of care if the defendant seeks to perform it completely through his own actions, rather than by having an independent contractor act on his behalf (my emphasis in each case).
The effect of counsel's submission, as I understood it, was that if I were to find that neither SPG nor BPG breached their respective duties of care (if any) to the plaintiff, it would follow that Dynamite was not in breach of its non-delegable duty. I am unable to accept that proposition. I am equally unable to conclude that those parts of Campbell JA's judgment in Transfield which are set out above should be regarded as authority for it. What his Honour said [203] was that before a plaintiff can succeed in a case based on a non-delegable duty of care, he or she must establish that someone has been negligent. The italicised portion of his Honour's judgment at [55] makes it clear that the "someone" would include someone in the position of Dynamite. In the context of the present case, I do not understand his Honour's judgment to be authority for the proposition that a finding that neither SPG nor BPG breached their respective duties of care should, as a matter of course, lead to a finding that Dynamite did not breach its duty of care. Irrespective of what conclusion might be reached in relation to the respective positions of BPG and SPG, Dynamite's position is to be resolved by asking whether it breached its (admitted) non-delegable duty to provide the plaintiff with a safe system of work.
For the reasons previously stated [204] I have concluded that the relationship between the plaintiff and BPG was akin to that of the relationship which exists between an employer and an employee, and that in those circumstances, the duty owed by BPG to the plaintiff extended to the duty to protect him from the criminal acts of third parties. Given that the relationship between Dynamite and the plaintiff was one of employer and employee, the same conclusion must follow. However, although that duty was owed by Dynamite to the plaintiff, I am not satisfied it was breached.
In conjunction with BPG, Dynamite provided the plaintiff with a safe system of work by ensuring that he was properly trained and instructed, not only in how to carry out his duties at a general level, but specifically in what to do in the event that he was confronted by the very situation with which he was confronted in the present case. The instructions which were administered in the course of the training which was provided to the plaintiff, which included the contents of the manuals, were specifically directed to the very situation in which the plaintiff found himself. The plaintiff knew and understood those instructions. He acted in plain breach of them. There was no breach of duty on the part of Dynamite. It was the plaintiff who was entirely the author of his own downfall. The plaintiff's action against the Nominal Insurer therefore fails.

[52]

The plaintiff's medical history in the period following his mother's death

Following his mother's death, the plaintiff consulted Dr Summers, a General Practitioner. He was cross-examined at some length regarding his various consultations with Dr Summers and the feelings that he was experiencing at the time of those consultations. [213] The plaintiff agreed [214] that he saw Dr Summers on a fairly regular basis throughout 1996. He also agreed [215] that he continued to be depressed throughout 1996. When asked [216] whether his depression was worsening at that time, the plaintiff said that it was "just as normal", that he was "traumatised", and that his mother's death had affected (him). [217]
The plaintiff was specifically cross-examined in relation to a number of entries in the clinical notes produced by Dr Summers on subpoena. Those entries included the following: 1. 23 July 1996 - still very depressed. Sickness benefit report given; [218] 2. 21 October 1996 - starting work and doesn't to see psychiatrist; [219] 3. 16 December 1996 - depressed … still sees counsellor … [220] 4. 21 January 1997 - feeling less depressed. [221] 5. 24 March 1997 - Cert 24/3/97 > 24/5/97 "Depression". [222]
On 28 February 1996 the plaintiff consulted Dr Summers whose clinical note is in the following terms: Very depressed because of Mother's death (stabbed to death by father). Using marijuana regularly. Aropax 20mg 28. Cert: 28/2 > 28/5/96 - "Depression". [223]
A further clinical note of Dr Summers of 20 April 1996 is in the following terms: Still depressed. Did not take Aropax but still depressed. Cert 20/5 > 20/8/96. "Depression". Still sees counsellor. [224]
The plaintiff was also cross-examined regarding his use of marijuana in the period between 1996 to 1997. [225] He denied that he was a regular user of marijuana at that time and consistently maintained that he used it very occasionally. [226] As discussed further below, that is not consistent with the notes of Dr Summers.
It April 1997 the plaintiff's father died in prison. The plaintiff conceded that this had affected him. [227] On 17 April 1997 the plaintiff saw Dr Summers whose clinical note is in the following terms: Father died last wk (therefore) very stressed again. Psychiatrist has been arranged to see patient … Cert 24/3/97 > 24/6/97. [228]
The plaintiff had no recollection of this consultation, and no recollection of being prescribed Aropax. [229] In June 1997, and again in September 1997, Dr Summers issued the applicant with certificates certifying that he was unfit for work on account of "Depression". [230]
The plaintiff denied that he increased his intake of marijuana through 1997 and maintained that he was still using it only occasionally. He expressly rejected the proposition put to him in cross-examination that he was, at this time, using marijuana to "an excessive degree". [231] However, there is evidence that the plaintiff saw Dr Summers again on 9 January 1998. Dr Summers' note is in (inter alia) the following terms: Withdrawal from marijuana…Cert. 25/12/97 > 25/1/98 - "Depression". [232]
As a matter of common sense, the reference to "withdrawal" from marijuana suggests more than occasional use.
The plaintiff's consultations with Dr Summers extended into 1998. He agreed [233] that he had seen Dr Summers on 14 April 1998 at which time he was still very depressed and continuing to seek treatment from a counsellor. Dr Summers' clinical note of 14 April 1998 reads (inter alia) as follows: Still depressed and receiving Rx from counsellor. D/C 29/3 > 29/6/98 "Depressed" - See report. [234]
Another clinical note of Dr Summers of 23 September 1998 is in not dissimilar terms: [235] Still having counselling for depression. W/C 23/9/98 > 23/12/98. "Depression".
On 17 February 1999 the plaintiff again saw Dr Summers whose clinical note is in (inter alia) the following terms: [236] Seeing Shane Brown at Waterloo for counselling once - twice a week, still getting flash backs. Looking for work. No luck so far. Sickness benefit 2/2/99 - 2/4/99. Haven't seen psychiatrist yet. Will arrange next wk. ? antidep helpful
The plaintiff explained [237] that he had commenced suffering flashbacks after his mother's death and that at the time that he saw Dr Summers on 17 February 1999 he was continuing to experience flashbacks "here and there". He agreed that he was experiencing flashbacks from 1994 to 1997 but said that they were becoming less over that period. [238]
The plaintiff was also cross-examined as to why it was that in all of these circumstances he had not, by 1999, consulted a psychiatrist. He denied that he was resistant to doing so, and said that he "just didn't get around to it. [239]
On 29 June 1999 the plaintiff saw Dr Summers who recorded that he was "depressed again". [240] On 4 December 1999 Dr Summers issued the plaintiff with another certificate for the period 6 December 1999 to 6 January 2000 on account of "major depression". [241]
The plaintiff agreed that between 1994 and the end of 1999, a period of 5 years, he had not returned to any formal work and that his sole income was from Centrelink payments. He also agreed that the payments he received from Centrelink were supported by the issue of certificates from Dr Summers certifying that he was unfit for work because of depression. [242]
On 2 May 1999 the applicant again saw Dr Summers who noted that he had "been to see a psychiatrist". [243] Despite that note, the plaintiff denied that he had seen a psychiatrist and consistently maintained that he had seen only a "counsellor". [244] The plaintiff agreed that he continued to be depressed in 1998, evidence which was consistent of a clinical note of Dr Summers of 14 April 1998: [245] Still depressed and receiving Rx from counsellor. D/C 29/3 > 29/6/98 "Depressed" - see report.
In February 1999 the plaintiff was continuing to receive counselling from Shane Brown once or twice per week. It was about this time he commenced to look for work. [246] The plaintiff explained that he had no formal qualifications, as a consequence of which he decided to undertake a security course in 2000. He agreed [247] that he had commenced to think about going back to work in about December 1999. The plaintiff was cross-examined extensively about a consultation with Dr Robyn Haig, Psychiatrist, which had taken place on 17 December 1999 for the purposes of assessing, on behalf of Centrelink, his capacity for work. The plaintiff had no recollection of that consultation and did not believe that he had ever been to Campbelltown where Dr Haig's consulting rooms were located. [248] However, the plaintiff agreed [249] that in December 1999 he was still suffering from difficulties with sleeping, nightmares, a loss of appetite and concentration. He also agreed that these symptoms had persisted for about 4 or 5 years and dated back to the time at which his mother had died. [250] The plaintiff maintained that he did not take any anti-depressants between 1994 and 1999 and that he smoked marijuana only on a casual basis. [251]
Although the plaintiff had no recollection of a consultation with Dr Haig, a report of Dr Haig of 22 December 1999 was tendered. [252] The history recorded by Dr Haig included the following: He gave details of feeling depressed with difficulty sleeping, nightmares, loss of appetite and difficulty concentrating, which had persisted over the last five years since the occasion when his father stabbed his mother to death, Gengiz returned to the family home to find that this terrible incident had taken place. He was very distressed as he was close to his mother. His father was sentenced and died three years later from a heart attack in prison. His father was an aggressive man who suspected that his wife was having an affair when she WHS out shopping. He reported seeing a counsellor (Shane Brown) at a youth centre in Waterloo on a weekly basis. He was unsure if the counselling had helped him. He had obtained sickness certificates from a Dr. Stewart Summers at Kings Cross. (Gengiz currently lives in Hoxton Park). He had not been prescribed antidepressants. He reported seeing a "psychiatrist" on one occasion at the youth centre above, but the "psychiatrist did not return to the youth centre", (He was somewhat vague about treatment, but it appeared to have been non-existent from a psychiatric perspective), I questioned him about the possibility of finding an interesting job next year (2003 given that the Olympics were taking place and there would be many possibilities). He protested strongly, saying that he had muscular tension across his shoulders from "stress" and that he was frightened of people and could not concentrate* "I'm stressed out, how can I work?"
In terms of the plaintiff's mental state, Dr Haig reported [253] that the plaintiff was "not suicidal" and "did not appear to be seriously depressed". Whilst Dr Haig described the plaintiff as "tense", and as having reported a "preoccupation" with thoughts of his mother's death, he noted that there were no psychotic features such as delusions or hallucinations. Under the heading "Diagnosis" [254] Dr Haig said the following: In summary this 22 year old male experienced a traumatic death (the murder of his mother). There continue to be features consistent with Post Traumatic Stress Disorder, although I am not convinced at this point that this is severe. He has received substantial counselling sessions over the last three years. With treatment over the next three months he should improve significantly. He has no evidence of a serious mental illness.
In terms of the plaintiff's fitness for employment Dr Haig expressed the following opinion: [255] FITNESS FOR EMPLOYMENT In my opinion he is medically unfit to resume full-time employment over the next three months but is fit to work up to 20 hours per week in the interim. After three months he will be medically fit to resume employment for 30 hours per week. It would be beneficial to his mental state and health if he commences employment along these lines.
The views expressed by Dr Haig were somewhat at odds with those recorded by Dr Summers around the same time. On 14 January 2000 Dr Summers recorded having seen the plaintiff and having issued him with a medical certificate for the period 6 January to 29 February 2000 on account of "Major Depression". [256]
The plaintiff was assessed by a Dr Haperek on 4 May 2004 who diagnosed depression and who reported that the plaintiff had suffered from major depression since November of 2003. He noted that the plaintiff had been prescribed Effexor, which is inconsistent with the plaintiff's assertions in his evidentiary statement that he had never been prescribed medication. [257]
On 7 May 2004 the plaintiff, again consulted Dr Summers. He had not done so since 19 July 2001, at which time the plaintiff had sought a reference from Dr Summers for a security licence. Dr Summers' clinical note of the plaintiff's consultation with him on 7 May 2004 reads (inter alia) as follows: [258] V. depressed. View to abuse and break up with g'friend and abuse as a child. WCC 7/5/04 > 7/8/04. Major Depression. Efexor…+ 2 Rpts.
The plaintiff denied that he was suffering from any form of depression in 2004 but could not recall why it was that he saw Dr Summers on that occasion. [259] Clearly, given the clinical note, his denial in that regard was not accurate. He had no recollection of Dr Summers prescribing him with any medication. [260]
Dr Summers was not the only medical practitioner who recorded such matters. On 6 June 2004, the plaintiff was examined by a Dr Ying for the purposes of an application for a disability support pension. Dr Ying reported [261] that the plaintiff's ability to work was reduced because of his "mental condition". He also reported that he "functioned" with some difficulty due to moderated regular symptoms". Those symptoms were, given the balance of Dr Ying's report, symptoms of depression. Dr Ying also noted that his medications at that time included Effexor. It was the opinion of Dr Ying that the functional impact of the plaintiff's condition was not likely to change during the next two years.
On 7 January 2005 the plaintiff saw Dr Summers again. His clinical note records the following: [262] Depression continues. Cert 27/12 > 27/3/05 "Major Depression". Character reference given.
The plaintiff gave evidence that he did "not believe" that he had told Dr Summers that his depression was continuing and denied suffering any depression at all at that time, asserting that he was "completely normal". [263] Again, those denials are not consistent with the objective evidence.
The plaintiff commenced consulting medical practitioners at the Bonnyrigg Family Medical Centre in about 2007. He did not consult any of those doctors on account of depression or anxiety. [264]
I had the opportunity to observe the plaintiff closely as he gave his evidence. In some respects he was vague. In other respects his evidence was objectively false. When pressed in relation to some matters, he claimed an inability to recall. Overall, the plaintiff was a most unsatisfactory witness. I formed the view that he regularly, and deliberately, attempted to down play the significance of aspects of his medical history, either by claiming that the could not recall particular events and consultations, or by giving evidence which was at odds with other objective evidence. It is entirely unsurprising that the plaintiff suffered depression after the horrific experience of his mother's death. However, the plaintiff's assertion that he "suffered depression for a few years and had counselling" substantially understates the true position. Moreover, his assertion that he was never placed on medication is simply not consistent with the evidence.
The plaintiff's evidence concerning his use of alcohol and marijuana was also telling and generally unsatisfactory. Despite his evidence to the contrary, the plaintiff has clearly had a problem with marijuana addiction for some considerable time.
The plaintiff relied on the expert evidence of Dr Phillips who provided a report of 1 March 2017 and who also gave oral evidence. In his report, Dr Phillips expressed the following conclusion: [265] …The extreme psychological shock experience by Mr Capar on 17 March 2010 had been the trigger which led to the plaintiff's psychological decompensation, with development of his overt psychological problems now manifest as a major depressive disorder with co-existing trauma induced symptoms and anxiety spectrum symptoms. It can be said with certainty that Mr Capar has symptoms of depth, breadth and intensity sufficient to interfere with the smooth conduct of his everyday life, to reduce his pleasure in life, to reduce the quality of his life overall, and to interfere with employment prospects. … …Mr Capar has a poor prognosis without or with treatment. I do not foresee the plaintiff entering into another intimate relationship. He will never be able to return to his previous security work, and it is unlikely that he will return to the workforce in any manner.
In reaching these conclusions, Dr Phillips was provided with a medical history which he expressed in the following terms: [266] Mr Capar did not think that he had suffered any major medical problem in the past. Additionally he had never required surgery. He had never been involved in any substantive accident. The plaintiff said that he had never suffered psychological problems before the incident on 17 March 2010. He noted however that he had been seventeen years old when his mother died. He felt "down" during the process of grief. He undertook some counselling. He was not treated with medication. Turning to matters of past personality, Mr Capar said that he had been a happy and content person in the past. He had a girlfriend and a daughter. He had no sexual problems. He described his life as having been "really good".
It will be apparent from the evidence to which I have already referred that the history provided by the plaintiff to Dr Phillips was, to say the least, inaccurate. In particular, the suggestion that the plaintiff had never suffered psychological problems before the subject incident, and had not been treated with medication, was simply false. Significantly, Dr Phillips said the following in the course of his evidence: [267] Q: You agree that in the ranking of things, the history and the mental status examination are the two most important tools for the psychiatrist? A: I've always thought they were, but I'm not in any sense undercutting the importance of other things as well.
The significance of this is that Dr Phillips made it clear that his opinions were premised upon the accuracy of the history with which he was provided: [268] Q. Sir, can I just put the question to you again? Would you agree that the value of the conclusions in your report have an inverse relationship to the lack of truthfulness of the patient? A. I'd be the first person to agree to that. … Q. Yes. Well, doctor, you'd agree, would you not, that accuracy of history taking from the commission's point of view is of paramount importance? A. Absolutely. Q. And it may be able to tell us that you were just inaccurate in the history taking on that occasion, at least in relation to the incidents recounted? A. Yeah. I'm-I'm not sure I want to accept the word "inaccurate". I'm a very careful history taker. Obviously, in a long interview and with a difficult client - and this man, as I mentioned in the report, there were some difficulties - I can never guarantee that everything I write, and nor could any other psychiatrist, is 100% correct. I think I got it wrong.
Dr Phillips expressly agreed that a detailed and accurate history was of the utmost importance in determining the aetiology of a particular psychiatric condition. [269]
In assessing the evidence of Dr Phillips, it is also significant that the history with which he was provided contained no reference at all to the circumstances surrounding the death of plaintiff's mother. Dr Phillips accepted that the murder of the plaintiff's mother was a matter of some importance. [270] He accepted that an act of violence of that nature is always highly traumatic and must always be taken into consideration because it would be a matter of significance in determining that aetiology of the plaintiff's symptoms. [271] Notwithstanding these circumstances, Dr Phillips agreed that there was nothing in his report which indicated that he had even considered this issue. [272]
Dr Phillips was also cross-examined about the inconsistency between the histories recorded by some of the medical practitioners, and the plaintiff's evidence in relation to those histories. Dr Phillips was asked: [273] Q. So the only thing I'm asking you to consider is if you make those assumptions, then one can't have a great deal of confidence - and this is no criticism of you, but one can't have a great deal of confidence in the conclusion that you expressed in your report, taking those assumptions into account. A. As I said on page 1 of my report, I am working on the assumption that the materials put to me were true and correct. Q. Do you agree with what I've just put to you? A. I do.
Dr Phillips had previously been asked: [274] Q. But if it were to be the case that the patient were found to be untruthful to the psychiatrist, and the psychiatrist hadn't detected the lack of truth, then that would give cause for serious reconsideration of the conclusions expressed in the report, would it not? A. I'm not quite sure what you're asking me. If you're asking me if a patient or a client is consistently untruthful or malingering, yes, the answer would be I agree with you. On the other hand, self-serving behaviour and mistakes of timing and mistakes of place and mistakes of all sorts of things can reasonably honestly occur in the course of a history, and then it would not apply.
Dr Lewin, who examined the plaintiff on behalf of SPG, expressed conclusions which were diametrically opposed to those of Dr Phillips. In his report of 5 December 2013 Dr Lewin expressed the following conclusion: [275] Mr Capar described a single episode where he was threatened with an axe. He recalled that he was told "I am going to kill you". The offender came as close as 10 metres. The offender did not strike Mr Capar and the matter was very quickly resolved. I considered the question of whether these events satisfied the first diagnostic criteria with regard (sic) Post Traumatic Stress Disorder. Based on those facts, it is reasonable to conclude that he could have felt fearful or terrified. Mr Capar currently describes a range of reactive symptoms of depression and anxiety. Those symptoms occur against the background of a far more severe problem of substance use. He described almost daily use of marijuana in relatively large quantity (sic). Those quantities are certainly sufficient to give rise to a pattern of chronic intoxication with marijuana. Mr Capar described the onset of substance use prior to the events of March 2010. In my opinion, the primary diagnosis is a physical diagnosis. Mr Capar is dependent upon marijuana. This explains many of his symptoms, including his vague presentation, his undue suspiciousness and dysphoric disturbance of mood. Similar comments could be made with regard to the ongoing pattern of abuse of alcohol. Based upon the history reported by Mr Capar, I found evidence of dependence upon marijuana, abuse of alcohol, chronic Post Traumatic Stress Disorder and a Depressive Reaction. … If the diagnosis of Post Traumatic Stress Disorder is accepted, it is possible that the condition arises as the consequence of a death of a parent, for the reasons given above. I think it far less likely that this condition arose as the consequence of the events described in March 2010. However, I concede that such a causal hypothesis is possible (if unlikely) based upon a marked degree of premorbid vulnerability…Without the premorbid vulnerability, I think it most unlikely indeed that there is any causal relationship.
In cross-examination Dr Lewin said that the evidence suggested that, at the very least, the subject incident led to a worsening of something that was already there or in other words, an exacerbation. [276] He agreed that the alternative hypothesis was that posited by Dr Phillips, namely that it was a "fresh trigger super imposed upon a pre-existing vulnerability. [277]
Dr Lewin was taken to the evidence of the plaintiff's former partner Melissa Smith. Ms Smith had no recollection of the plaintiff becoming very depressed in late 2003 or early 2004, nor did she have any recollection of him seeing doctors around that time, yet this was at a time when their relationship had started. [278] Whilst she was familiar with Dr Summers [279] the plaintiff had not told her that he was seeing Dr Summers and she did not know, one way or the other, whether the plaintiff was seeing any medical practitioner and obtaining treatment for depression in 2004. [280] Ms Smith maintained [281] that in 2005 the plaintiff appeared "just normal". [282] In terms of the plaintiff's use of marijuana, Ms Smith that they had "tried it" [283] but that neither she nor the plaintiff were using it "like for a regular thing, day in and day out". [284]
Dr Lewin accepted that if Ms Smith's account was an accurate, it would be entirely inconsistent with the plaintiff suffering from any form of depressive illness prior to the subject incident. [285] The difficulty is that in light of the medical evidence to which I have referred, particularly some of the clinical notes, Ms Smith's account is not an accurate one. In my view, little weight can be attached to it.
In my view, the opinions of Dr Lewin should be accepted. There is a clear difficulty accepting the opinion of Dr Phillips in the light of the history that he was given.
I accept that the subject incident, involving as it did a threat of death, would have been a traumatic event from the plaintiff's point of view. As Dr Lewin opined it is reasonable to conclude that the incident could have left the plaintiff feeling fearful or terrified. I accept that there was a degree of chronic post-traumatic stress disorder suffered by the plaintiff following the subject incident. However, that disorder must be viewed against the background of the plaintiff's medical and other history which I have outlined and which included circumstances surrounding the death of his mother and his consistent use of marijuana.
In my view, the appropriate assessment in terms of non-economic loss is that the plaintiff's injuries constitute 25% of a most extreme case. [286]

[53]

The plaintiff's work history

In the first of his evidentiary statements [287] the plaintiff gave the following work history: [288] 10. In 2000 I worked for Chubb Security as a Transit Security Officer during the Olympic Games. 11. From 2007 to 2009 I worked for SNP Security at Sydney Airport, screening passengers and baggage. 12. Since 2009 I work for Dynamite Security, PO Box 566, The Boulevard, Punchbowl, NSW 2196, predominately at Lidcombe Power Centre.
The plaintiff was cross-examined about the positions that he had previously held as a security officer: [289] Q. Now, would it also be correct to say that none of those jobs that you had were satisfactory as far as you were concerned? A. Some of them were just temporary, like, a day or two here and there or the boss wanted to see how I worked and get reports back to see if he'd give me more shifts and things like that, but yeah, most of them were - yeah. Q. Well, is it in the nature of security work that it tends to be casual and dependent on what shifts you can get? A. Yeah, casual, but then they want to see your abilities and how you work and that, then they give you part-time or full-time or more days. Q. Now, was your first security job with Chubb as a transit officer on trains during the Olympic year? A. That's correct. Q. And that was a casual position, was it not? A. Yeah, casual, part-time - I was getting three to four days a week, or something like that, yeah, or extra shifts. Q. Did you want to work full-time at that stage or were you content to work part-time? A. I didn't care what they gave me, as long as I was working, whether it was part-time or full-time, but yeah, I did want more work, yeah. Q. So you felt that you were mentally able to do the work? A. Correct, yes. Q. And this job lasted for about eight months, correct? A. That's right. Q. And it ended with your being sacked? A. Yeah, due to their negligence. Q. Yes - well, wasn't it the situation that you gave them a very late notification about A. No, that's incorrect. HIS HONOUR: Well, perhaps before you answer the question, perhaps you should let counsel finish it. Do you want to actually finish that question, Mr Feller? FELLER: All right. Q. Well, you see, haven't you given an account to Dr Roberts about making a call from a four wheel drive? A. No, I informed someone there - that the situation - they then pass it onto the supervisor, which was higher up than that person, and he didn't know about it, and then he wanted my uniform back and said I was fired. Q. When you say that A. Between them, it was a miscommunication, but I gave ample notice, so it was their fault. Q. Are we talking about you not being to turn up for work on one particular day? A. I believe - I think so, yes. Q. And the allegation, or the accusation, against you was that you didn't give sufficient notice? A. No, that's incorrect. Q. Perhaps we're at cross purposes. Chubb said that you didn't give him enough notice. A. No, that's incorrect. I did, actually. And HIS HONOUR Q. I know you say you did, but what's being put to you is that Chubb said, rightly or wrongly, that you didn't give them enough notice. Is that correct, or? A. Well, that's what they reckon, but Q. That's all I'm asking. That's what they reckon, you denied that? A. Right. FELLER Q. In any event, they gave you the sack and asked you to return your uniform. Correct? A. Yes, that's right. Q. Then, you were out of work for a period of time? A. Yes, that's right. Q. How long? A. I don't recall; I was just looking for other jobs in the newspaper. Q. They were hard to come by, were they? A. Sometimes, because, you know, I'm not a big person and they want big people. I'm only little, so yeah. Q. Was it also your experience that it was in the nature of the security industry that work tended to be intermittent? In other words, occasionally. A. What do you mean by that question? That I didn't find work straight away? Q. Yes, it wasn't that easy to find work straight away because it wasn't always available. A. Well, I rang up, made appointments and went to interviews. They said they'd get back to me, which, yeah, most of them didn't get back to me. Q. You then found a job which was two days per week. Correct? A. Which company was that? Q. I think you told Dr Roberts that you worked as a guard at Government House. A. That's correct, yeah. Q. And that was a part time job? A. Correct. Q. You left that job of your own volition? A. Yes, that's correct. Q. Why did you leave that job? A. Because the boss was lying to me. Q. Lying to you about what? A. Giving me extra work. I had proved myself for a while, he got reports back saying that I was a good guard and everything, and he just didn't have the extra work or didn't want to give me extra work. I'm not sure, to be quite honest, so I'm not going to stay there if I've proved myself. Q. Were you having disputes with your boss? A. No, not physical or anything like that. Q. Verbal? A. Verbal more like, yeah. Talking. Q. So you didn't get on with your boss? A. No, I got on with him. Q. But they sacked you anyway? A. No, I left. I didn't get sacked. Q. Then after that, you had, again, work from time to time in the security industry? A. That's correct, yes. Q. And you felt that the people in the security industry generally tended not to look after you. Would that be correct? A. Yeah, here and there. You know, in workplaces, you've got people that, you know, discriminate. "Look at him, you know, he's not big. Why should he be here?" and other things like that. Q. So would it be correct to say that for a number of years after you obtained your security license, you just worked intermittently? Do you understand what I mean by the word "intermittently"? A. Is that "here and there"? Q. Here and there. A. Yeah, more like, yeah. I wanted something more for long, but like I said, you know, I was making appointments, going. They didn't get back to me because I'm not a big stature of a person; I'm only little, so, you know. Yeah. Q. So in between jobs, how did you spend your time? A. More like, just looking for jobs. Yeah. Q. You then took a position at Sydney airport as a screening officer, and you were there for a period of time. Correct? A. Correct. Q. Do you recall how long you were there? A. A bit over a year and a half, maybe coming up to two years. Q. Do you remember which years you were there? A. 2007 to 2009, I think. Yeah. Ten years ago. Q. And you left that position yourself. Correct? A. Yeah. No, actually. They fired me. Q. Did they fire you because you were handing them medical certificates for sick days? A. Incorrect. Just sometimes, when I had a cold. Q. Didn't you tell Dr Wendy Roberts that the reason that you were fired was because you were giving them medical certificates for sick days? A. Sick days here and there, but I didn't turn up to most of the shifts because they were ridiculous. Four hours in the afternoon and I just didn't want to do that; I wasn't making much money. Q. Can I just see if I understand what you're saying; you had a good job at Sydney airport, but you didn't want to do the shifts they were giving you because the money wasn't good enough? A. No, the money was good. It wasn't the best job, though. They were just giving me ridiculous shifts. Q. So you didn't like the shifts they were allocating to you? A. Correct. Q. So you didn't bother turning up? A. Correct. Q. No doubt, you weren't surprised when they sacked you. A. No, I wasn't surprised. Q. Well, you didn't have a great work ethic at that time, did you, Mr Capar? A. No, I did. I was a good screening officer, I did my job properly. Q. Why didn't you do the shifts they were giving you? A. Because I spoke to them about it and I just didn't want to do it. Why should I go there for four hours?
The plaintiff's pre-accident employment history does him no favours. The history is limited and includes instances in which the plaintiff had his employment terminated. Those passages of the plaintiff's evidence set out above reflected a clear tendency on the part of the plaintiff to blame others for those occasions on which he lost his employment. They also reflected a poor attitude to employment generally.
The plaintiff's entitlement to future economic loss is governed by s 13 of the CLA which is in the following terms: 13 Future economic loss--claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
The plaintiff's work history prior to the subject incident consisted of positions which were part-time, casual or intermittent. In the light of that history, and in the light of the plaintiff's medical history, I cannot be satisfied that but for the subject incident, he would have continued to work as a security officer. In the light of his history, it seems to me that the most likely scenario was that the plaintiff employed, if at all, on the same intermittent, casual or part-time bases as was the position prior to the subject incident.
I would allow past economic loss of 6 months at a rate of $680.00 pw.
As to the future, I would allow a buffer of $25,000.00.

[56]

Endnotes

Exh D1/1 commencing at p.447.
Exh D1/1, p.449.
Exh D1/1, p.459.
Exh A, p.448.
As discussed further below at [35], Mr James was the Managing Director of BPG.
Exh D1/1 at p.509.
Exh D2/2.
Exh D2/1.
T143.15 and following.
Exh D2/1; Exh D1/3.
Exh D2/1, photographs 6-10 of Exh D1/2; T82.9-T82.40; T235.16.
Exh D2/1.
Exh D1/2, photographs 8 and 9.
Exh D2/1.
Exh D1/3.
T128.36-T129.5.
T129.7-T129.9.
Exh. A p. 340.
Commencing at para 9.
Commencing at [256].
Commencing at T43.9.
T41.5-T41.27.
T67.6.
T67.35.
Commencing at T67.37.
T67.41-T68.8.
Exh D1/1 p. 275.
T68.25-26; Exh. D1/1 p, 409-435.
Commencing at T70.29.
T68.25-30.
T68.8.
See [43] below.
Exh. D2/2 at p. 9-10.
Exh. D1/1, p 218A; Exh D1/1, p 272.
Exh D1/1, p.221.
Commencing at T115.28.
Commencing at Exh. D1/1 p.272.
Exh D1/1, p.275.
Exh D1/1, p 273.
At T117.3.
T117.8 - T117.9.
Commencing at T117.11.
At [45] above.
Exh D1/1 p.331.
T118.9-10.
Commencing at T118.12.
Exh D1/1 at p.179.
T120.12 - T120.14.
T120.16 - T120.18.
Exh D1/1 p.192.
Commencing at T120.40.
Exh D1/1 at p.349.
T121.17 - T121.19.
Exh D1/1 p.356.
T122.21 - T122.24.
At [35] above.
Exh D1/1 p.363.
Commencing at T123.23.
Exh D1/1 p.366.
T124.4.
Commencing at T124.26.
Exh D1/1 p.367-368.
Commencing at T126.38.
Exh A, p 340 commencing at para.19; T182.9-T182.36; T183.3.
Exh A, p 341, para. 20.
Exh A, p 341, para. 20.
Commencing at T183.3.
T184.35-T184.37.
Exh D1/1 p. 482.
Exh D1/1 p.483.
Exh D1/1 p.481-482.
Exh D1/1 p. 480-481.
Exh D1/1 p.479.
See for example an email from Alison Hall on 17 March 2018 at Exh D1/1 p. 508.
At [80] above.
See for example Exh D2/2 at p. 11.
See the discussion by Basten JA in Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [50]-[52].
See written submissions of BPG at (34) and (35).
Exh. A, p. 341 para [21]-[31].
Exh. A Vol 2, p. 363W.
Exh A Vol 2, commencing at p. 534.
Exh D 1/1, at p. 505.
Exh D 1/1 commencing at p. 74.
Exh D 1/1 commencing at p. 114.
Exh D 1/1 commencing at p. 56.
Exh A commencing at p. 372.
Exhs D1/5 and D1/6.
T176.7 - T176.8.
T176.10 - T176.12.
T163.49 - T164.4.
Position GO3; Exh D2/1 p.1.
T174.14 - T174.15.
Commencing at T176.32.
T176.47 - T176.49.
T177.42 - T177.44.
T177.46 - T177.48.
T178.1 - T178.12.
T174.48 - T174.49.
Commencing at [42] above.
Commencing at T164.1.
Commencing at T166.45.
Commencing at T166.45.
Commencing at 167.48.
Commencing at T168.48.
Commencing at T190.41.
Commencing at T169.42.
Commencing at T170.26.
Commencing at T172.20.
Exh D1/1 p. 507.
Exh D1/1 p. 508.
Exh A, Vol 2 commencing at p. 365.
Exh A, Vol 2 commencing at p. 374.
Exh A, Vol 2 commencing at p. 376.
Exh A, Vol 2 commencing at p. 372.
T556.40 - T556.47.
T557.4 - T557.5.
T557.31 - T557.33.
T559.14 - T559.27.
T607.20 - T607.31.
T607.20 - T607.31.
T605.24 - T606.34.
At [114].
T564.25 - T564.27.
T574.29 - T574.40.
T579.10 - T579.13.
Commencing at T588.25.
Commencing at T570.44.
Commencing at T572.37.
Wicks v State Rail Authority of New South Wales [2010] 241 CLR 60; [2010] HCA 22 ("Wicks") at [22].
(2017) 94 NSWLR 229; [2017] NSWCA 21 at [36].
At [39].
See fn 129 above.
At 3.32020 and following.
Optus at [36].
At [54].
Wicks at [27].
CLA s 32(2)(a).
CLA s 32(2)(b) and (c).
CLA s 32(2)(d).
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; [1987] HCA 7.
Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [81] per McHugh J.
Modbury Triangle Shopping Centre Pty Limited v Anzil & Ors (2000) 205 CLR 254; [2000] HCA 61 at [26] per Gleeson CJ.
(1987) AC 241 at 270.
(1988) 192 CLR 330; [1988] HCA 3 at [101]-[102].
(1945) 70 CLR 256; [1945] HCA 27 at 262.
(1985) 156 CLR 7; [1985] HCA 3 at 20.
(2000) 205 CLR 254; [2000] HCA 61.
At [17].
At [19].
At [26].
At [35].
At [102].
At [111]-[112].
Commencing at [113].
[2001] NSWCA 243.
Clarke v Coleambally Ski Club Inc. [2004] NSWCA 376 at [61].
(2012) 35 VR 355; [2012] VSCA 53.
At [22].
(1986) 160 CLR 16; [1986] HCA 1.
At [35].
[2005] NSWCA 327.
See [37] above.
See [35] and [38] above.
See [42] and following above.
See [39] above.
At [26].
(1970) 92 WN (NSW) 1070.
At 1073.
At 1074.
Commencing at [64].
At [66].
At [189]-[193] above.
At [80] above.
At [80] above.
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126] (Vairy").
At [199] above.
Vairy at [169].
CLA s 5B(1)(a).
CLA s 5B(1)(b).
CLA s 5B(2)(a).
CLA s 5B(2)(b).
CLA s 5B(2)(d).
At [84] above.
[2007] NSWCA 4.
Commencing at [70].
Carey at [90].
Carey at [93].
Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [75] per Beazley JA (as her Honour then was).
Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 at [138] per McColl JA.
At [1A.Div4.010] p. 173.
Paul v Cooke (2013) 85 NSWLR 167 at [68] per Leeming JA.
Nominal Defendant v Buck Cooper [2017] NSWCA 280 at [112] per Payne JA.
[2006] NSWCA 45.
These submissions were made by reference to the decision in Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14.
At [94]-[109] above.
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 at 679 per Mason J.
At 42.
(2008) 75 NSWLR 12; [2008] NSWCA 294.
Nominal Insurer's written submissions at (3).
Commencing at [55].
My emphasis.
Emphasis in original.
At [55].
At [183]-[197] above.
Exh. A p. 340.
T27.34-46.
T27.48 - T28.2.
T28.41-44.
T29.34-40.
T29.42-46.
T30.19 - T30.30.
T31.33-47.
Commencing at T31.49.
T32.29-31.
T33.46-47.
T34.13-14.
T34.13-14.
Exh. D1/1 p.1440.
Exh. D1/1 p. 1441.
Exh. D1/1 p. 1441.
Exh. D1/1 p. 1442.
Exh. D1/1 p. 1442.
Exh. D1/1 p. 1440.
Exh D1/1 p. 1440.
Commencing at T33.21.
T34.41-49.
T36.39.
Exh. D1/1 p. 1442.
T49.25-49.
Exh. D1/1 p. 1443.
T37.37 - T38.14.
Exh. D1/1 p. 1443.
T38.13-18.
Exh. D1/1 p. 1444.
Exh. D1/1 p. 1444.
Exh. D1/1 p. 1445.
Commencing at T. 38.37.
T39.1-15.
T39.20-33.
Exh. D1/1 p. 1446.
Exh. D1/1 p. 1447.
T40.1-14.
Exh. D1/1 p. 1443.
T50.8-14.
Exh. D1/1 p. 1444.
T50.31-38.
T51.34-36.
T51.45 - T52.10.
Commencing at T52.27.
T52.37-39.
T53.40-50.
The report forms part of Exh. D1/1.
At p. 3 of his report.
At p. 3 of his report.
At p. 3 of his report.
Exh. D1/1 p. 1447.
Exh D1/1 p. 1953-1959.
Exh. D1/1 P. 1447.
T59.5-15.
T60.20-21; T61.40-46.
Exh D1/1 p. 2023-2034.
Exh. D1/1 p.1448.
T62.4-16.
T65.22-29.
Exh A p. 336.
Exh. A p. 330.
T364.45 - T364.48.
T360.12 - T361.32.
T380.13 - T380.16.
T383.40 - T383.42.
T384.19 - T384.32.
T384.42 - T384.45.
Commencing at T406.17.
Commencing at T364.9.
Exh D1/1 p. 119 - 120.
T471.23 - T471.25.
T471.33 - T471.37.
T303.34 - T303.46.
T306.29.
T306.31 - T306.50.
T310.39 - T310.42.
T310.39 - T310.42.
T311.46.
T312.2.
T450.11 - T450.14.
CLA s16.
Commencing at Exh. A p.339.
Commencing at para.10.
Commencing at T43.24. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2019

Parties

Applicant/Plaintiff:

Capar

Respondent/Defendant:

SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors.

Legislation Cited (3)

Occupational Health and Safety Act 2000(NSW)

Annotated Civil Liability Act 2002(NSW)

Civil Liability Act 2002(NSW)

Cases Cited (41)

Chomentowski v Red Garter Restaurant Limited (1970) 92 WN (NSW) 1070 Clarke v Coleambally Ski Club Inc. [2004] NSWCA 376 Coco-Cola Amatil (NSW) Pty Limited v Pareezer & Ors [2006] NSWCA 45 Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 Karatjas v Deakin University (2012) 35 VR 355; [2012] VSCA 53. Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Modbury Triangle Shopping Centre Pty Limited v Anzil & Ors (2000) 205 CLR 254; [2000] HCA 61 Nominal Defendant v Buck Cooper [2017] NSWCA 280; (2017) 82 MVR 254 Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Pyrenees Shire Council v Day (1998) 192 CLR 330; [1998) HCA 3 Smith v Leurs (1945) 70 CLR 256; [1945] HCA 27 Smith v Littlewoods Organisation Limited [1987] AC 241 Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16; [1986] HCA 1 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wicks v State Rail Authority of NSW (2010) 241 CLR 60; [2010] HCA 22 Texts Cited: Annotated Civil Liability Act 2002 (NSW) (3rd Edition) (Villa) Category: Principal judgment Parties: Gengiz Capar - Plaintiff

[2005] HCA 14

[2012] VSCA 53

[1984] HCA 61

(1987) 162 CLR 479

(2015) 91 NSWLR 128

(2005) 214 ALR 349

(2002) 211 CLR 540

(2012) 35 VR 355

(1984) 154 CLR 672

(2000) 205 CLR 254

(2017) 82 MVR 254

(2017) 94 NSWLR 229