Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre

Introduction This appeal concerns a claim for damages by the appellant, Mr Gengiz Capar, against the three respondents, SPG Investments Pty Ltd (SPG Investments), Business Protection Group Pty Ltd (Business Protection) and the Workers Compensation Nominal Insurer (the Insurer), which is the workers' compensation insurer of Dynamite Security Protection Services Pty Ltd (Dynamite). Mr Capar's claim arises out of psychiatric injury that he suffered as a consequence of being threatened by an intruder on premises known as "the Lidcombe Power Centre" (the Premises), where Mr Capar was employed as a security guard. The incident occurred in the early hours of 17 March 2010, when an intruder on the Premises threatened him with an axe. The Premises were owned and operated by SPG Investments. w

1. Mr Capar sued SPG Investments, Business Protection and Dynamite in the Common Law Division of the Supreme Court, claiming damages on the basis that his psychiatric injury was the result of a breach of the duty that each of those defendants owed to him. Dynamite was deregistered on 7 December 2013 and the Insurer is sued as the entity liable to indemnify Dynamite.
2. On 13 May 2019, for reasons published on that day, a judge of the Common Law Division (the primary judge) directed the entry of verdict and judgment for each of SPG Investments, Business Protection and the Insurer. His Honour also dismissed cross-claims brought by SPG Investments and Business Protection. By amended notice of appeal of 2 June 2020, Mr Capar appeals from the orders made by the primary judge.
3. I have had the considerable advantage of reading in draft form the reasons of Basten JA for concluding that the appeal should be allowed. Unfortunately, I have the misfortune to disagree with the conclusion reached by his Honour on a critical aspect of the appeal, namely, whether there was a breach by SPG Investments, Business Protection or Dynamite of a duty owed by any of them to Mr Capar. I have concluded, for reasons that follow, that there was no breach of any duty owed to Mr Capar. Apart from that difference, I agree with the other conclusions reached by Basten JA.

Background

1. During 2009 and 2010, Mr Capar was employed by Dynamite as a night-time security guard. Dynamite had entered into contractual relations with Business Protection, whereby Dynamite provided Business Protection with labour in the form of security guards. The security guards, including Mr Capar, were required to attend to their duties at the Premises. SPG Investments had entered into contractual relations with Business Protection whereby Business Protection provided security services at the Premises. Mr Capar's duties required him to man the Premises alone when they were closed at night. He was required to perform patrols of the Premises both internally and externally and had various other responsibilities.
2. During Mr Capar's evening shift of 9 and 10 February 2010, two intruders gained entry into the Premises by climbing over a roller shutter that protected one of the fire stairs in the Premises. Mr Capar investigated the intrusion and found that the intruders had smashed their way into a store in the Premises, stole merchandise from the store and decamped. There was no evidence that the intruders were apprehended.
3. The break-in in February 2010 was reported to the police and was the subject of various emails on the following day between persons involved in the control and management of the Premises. There was a question as to the capacity in which those various persons received the emails. In the course of the emails, the gap above the roller shutter, through which the intruders entered the Premises, was identified as a security weakness. However, nothing was done to rectify the weakness.
4. In the early morning of 17 March 2010, while attending to his duties alone at the Premises, Mr Capar observed, on the security camera in the security room that he occupied, a man with a duffel bag outside the Premises. The man ran in the direction of the roller shutter where the break-in had occurred in February 2010. That area was out of sight of the camera. Mr Capar left the security room, went up the escalators to a higher level of the Premises and stood there waiting to see whether anybody had entered. Mr Capar observed the man that he had seen on the security camera and called out "security". The man raised an axe and threatened to kill Mr Capar. Mr Capar turned and ran back to the security room and immediately called the police and his supervisor. The intruder then left the Premises but shortly afterwards was apprehended by police and charged with offences to which he pleaded guilty. As a result of the sudden shock that Mr Capar experienced when threatened, he suffered psychiatric injury.

Mr Capar's Claims

1. In his second further amended statement of claim filed on 18 September 2017, Mr Capar asserted that SPG Investments was the owner and occupier and had the care, control and management of the Premises and had entered into contractual arrangements with Business Protection. He asserted that SPG Investments, as the owner and occupier of the Premises, being responsible for their care, control, and management, owed a duty to all persons who were lawfully on the Premises to exercise reasonable care for the safety of such persons.
2. Secondly, Mr Capar asserted that, having regard to the purpose for which and the circumstances in which he was on the Premises, SPG Investments owed him a more generalised duty of care, arising from its position as occupier, in relation to any risk of injury to which he might have been exposed whilst on the Premises. Finally, Mr Capar asserted that, in the light of the incident of February 2010, the duty of care owed to him by SPG Investments extended to taking reasonable care to protect any security guard, who was in attendance at the Premises when they were closed, from risk of injury following upon the unauthorised entry onto the Premises by any person, where such entry was gained by means of climbing over the roller door.
3. Mr Capar also asserted that, by reason of its contractual arrangement with SPG Investments, Business Protection was also an occupier of the Premises and owed a duty to exercise reasonable care for the safety of persons who were lawfully on the Premises. He also asserted that, having engaged Dynamite to discharge its contractual obligations to SPG Investments, Business Protection owed Mr Capar a duty of care that was analogous to that owed by an employer to an employee, including a duty to exercise reasonable care in the provision of a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same allegation against Business Protection as he made against SPG Investments in relation to unauthorised entry gained by way of the roller door following the February incident.
4. Mr Capar's claim against the Insurer was that, in circumstances where Dynamite employed him as a security guard and, together with Business Protection, directed him to attend at the Premises and undertake security services there, Dynamite owed him a non-delegable duty to exercise reasonable care for his safety as an employee, including a duty to provide a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same claim against the Insurer as he made against SPG Investments and Business Protection in relation to unauthorised entry gained by way of the roller door following the February incident.

The Civil Liability Act

1. The Civil Liability Act 2002 (NSW) (the Civil Liability Act) does not prescribe the circumstances under which a duty of care arises. However, it imposes constraints on the existence of a duty of care in particular circumstances. The only injury suffered by Mr Capar was mental harm. Accordingly, s 32 of the Civil Liability Act was relevant. Under s 32(1), a person (defendant) does not owe a duty of care to another person (plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. Relevantly for the purpose of s 32, the circumstances of the case include whether or not the mental harm was suffered as the result of a sudden shock and whether or not there was a pre-existing relationship between the plaintiff and the defendant. However, s 32 does not require the Court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. That provision does not appear to have any application in the present case.
2. Section 5I of the Civil Liability Act relevantly provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Section 5G relevantly provides that, in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. SPG Investments and Business Protection both relied on both provisions.

Duty of Care

1. The primary question is whether the duty of care owed to Mr Capar by any of SPG Investments, Business Protection and Dynamite extended to preventing unauthorised entry into the Premises after hours by an intruder who might, by his actions, cause injury to Mr Capar. Much of the evidence and argument focused on the incident in February 2010, when the two intruders entered the Premises by climbing over the roller shutter in the same way as it appears that the intruder who threatened Mr Capar climbed over on 17 March 2010. There was no suggestion that, prior to the incident in February 2010, any of the parties was aware or had reason to be aware of the possible security defect constituted by the gap between the top of the roller door and the ceiling above it. Essentially, Mr Capar asserted that, because SPG Investments, Business Protection and Dynamite were aware of that defect in the security, they had a duty to Mr Capar to eliminate it. There is considerable dispute as to which of SPG Investments, Business Protection and Dynamite had knowledge of the security deficiency. It is convenient to consider the matter first on the basis that each had relevant knowledge.
2. It was common ground that SPG Investments owed a duty of care to Mr Capar. On one view, the concession that SPG Investments owed a duty of care to Mr Capar was sufficient to dispose of the issue on the basis that, if there were a means of access to the Premises, which was not properly secured, SPG Investments had the capacity to take reasonable steps to rectify any lack of proper security in relation to access to the Premises.
3. The duty of an occupier of a building is to take reasonable care for the safety of persons in the building. The question in the appeal was the content of that duty. As the owner of the Premises, SPG Investments had responsibility for the physical elements of the security of the Premises, including doors. The question is whether that duty included providing a secure perimeter during hours when the Premises were not open to the public. More particularly, the question is whether SPG Investments was under a duty to take particular steps in relation to access over the roller door in order to prevent harm to a security guard employed to work alone on the Premises after normal business hours.
4. Mr Capar's case must be that SPG Investments owed him a duty to prevent unauthorised entry into the Premises after hours. It is possible to test Mr Capar's case by considering the position that might have prevailed had the roller door not been present at all. In those circumstances, it would have been possible for intruders to walk up the fire stair in order to gain access to the Premises. On Mr Capar's case, that would have been a breach of the duty owed to him. It may be that SPG Investments owed a contractual obligation to its tenants to afford security. That, however, is beside the point. The question is whether SPG Investments owed a duty to Mr Capar, a security guard employed by Dynamite, whose services were provided to Business Protection, which had contracted to provide security services to SPG Investments.

Conclusion

1. Those conclusions would be sufficient to dispose of the proceedings. I would dismiss the appeal with costs.

Endnotes

1. Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 5) [2019] NSWSC 507 ("primary judgment").
2. Primary judgment at [146].
3. Primary judgment at [86], [88].
4. Primary judgment at [151].
5. Primary judgment at [152].
6. Primary judgment at [154].
7. Primary judgment at [194].
8. Primary judgment at [197].
9. Primary judgment at [207].
10. Primary judgment at [208].
11. Ibid.
12. Primary judgment at [211].
13. Primary judgment at [212]-[213].
14. Civil Liability Act, s 5I(2).
15. [2006] NSWCA 45.
16. The judge in fact wrote "are not", but clearly meant "is".
17. Primary judgment at [238]-[251].
18. Primary judgment at [250]-[251].
19. Primary judgment at [228].
20. Peel and Goudkamp at [26-018].
21. 318 US 54, 69 (1942).
22. Peel and Goudkamp at [26-019].
23. Commonwealth of Australia, 2002 (Final Report).
24. Final Report, par 8.32.
25. Peel and Goudkamp at [26-023].
26. Final Report, [8.25], set out at [47].
27. There was no reference to the worker's compensation legislation.
28. Interpretation Act 1987 (NSW), s 35(1).
29. McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073.
30. [1935] 1 KB 146.
31. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310; Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455.
32. Ogwo v Taylor [1988] AC 431 at 447 (Lord Bridge).
33. (1967) 116 CLR 383; [1967] HCA 39.
34. (1972) 128 CLR 99; [1973] HCA 12.
35. Caterson, p 111 (Gibbs J).
36. (1961) 106 CLR 112; [1961] HCA 46.
37. Chapman at 120-121.
38. Chapman at 120.
39. Chapman at 119.
40. At the time of the accident the subject of Chapman v Hearse, contributory negligence was no longer a complete defence: Wrongs Act Amendment Act 1951 (SA), inserting s 27a in the Wrongs Act 1936 (SA) (now the Civil Liability Act 1936 (SA)), which commenced on 13 December 1951.