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

Court of Appeal (NSW)|2020-06-10|Before: Basten JA, McCallum JA

Background

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.
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.
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.
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

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.
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.
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.
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.
All three defendants put in issue the precise content of the duty of care owed to Mr Capar, there being no dispute that a duty was owed to him. Each disputed that there was any breach of the duty that it owed to Mr Capar. Each also disputed that Mr Capar's psychiatric illness was caused by any breach of duty on its part.

The Civil Liability Act

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.
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

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.
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.
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.
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.
The object of Mr Capar's presence in the Premises was to observe the Premises and, in the event of unauthorised intrusion, to report that circumstance to the police. Clearly, the very fact that Business Protection was retained by SPG Investments to provide security guards indicates an expectation that there may be intruders attempting to gain access to the Premises. It would be curious, therefore, for SPG Investments, as occupier of the Premises, to be held to owe a duty to a security guard, whose function was to report intruders, to take steps to ensure that there were no intruders. I do not consider that SPG Investments owed to Mr Capar the duty formulated above.
The claim against Business Protection and the Insurer was based on the assertion that Mr Capar was not provided with a safe system of work. Business Protection disputed that it owed a duty to Mr Capar to provide him with a safe system of work. I shall assume, for present purposes, that it owed the same duty that Dynamite owed to him as his employer.
The system under which Mr Capar was required to work enabled him, by means of security cameras, to observe the intruder on the morning of 17 March 2010. Mr Capar's duties did not require him to leave the security room. Had he remained there, there is no reason to doubt that he would have been perfectly safe and would not have been threatened. Nevertheless, Mr Capar left the comfort of the security room in order to ascertain whether or not the person that he had observed on the security camera had in fact gained access to the Premises. He was not required by his system of work to do so. Indeed, it was contended that Mr Capar failed to abide strictly by the instructions of Business Protection as to the manner in which he was to discharge his duties. Thus, by reason of the incident in February 2010, he was aware of the security defect. He hoped that, by making his presence known, the intruder would flee. In fact, the intruder fled without causing any damage to the Premises or stealing any property, but not before making the threat to Mr Capar's life. In the circumstances, I do not consider that there was a failure by Business Protection or Dynamite to provide Mr Capar with a safe system of work.
It is not clear how close the intruder came to Mr Capar. The evidence rather suggests that it was not closer than 20 or 30 metres. That, it appears, was sufficient, when coupled with the threat of death with the axe, to cause Mr Capar psychiatric injury. The question that arises under s 32 of the Civil Liability Act is whether SPG Investments and Business Protection ought to have foreseen that a person of normal fortitude might, in the circumstances of this case, suffer a recognised psychiatric illness if reasonable care were not taken. The primary judge concluded that it was not reasonably foreseeable that the intruder might threaten Mr Capar in the way in which he did. His Honour also concluded that Mr Capar's conduct, in drawing attention to his presence, was not foreseeable. The question is whether his Honour erred in those conclusions.
It is arguable that the requirement to consider the circumstances of the case is not a requirement to inquire whether the circumstances were reasonably foreseeable but whether, in the circumstances found, a person of normal fortitude might suffer psychiatric illness. Section 32 would be attracted if SPG Investments, Business Protection or Dynamite ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness as a consequence of a breach of duty owed to Mr Capar.
Business Protection had no physical presence in the Premises and therefore was not an occupier of the Premises. Its liability turned upon its role, either as an employer or as an independent contractor. Business Protection had not delegated its responsibilities entirely to Dynamite. Rather, it maintained a significant degree of control over the services provided by security guards, including by providing training and instructions through the means of manuals and requiring that security guards comply with instruction manuals prepared by it.

Conclusion

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

Endnotes

Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 5) [2019] NSWSC 507 ("primary judgment").
Primary judgment at [146].
Primary judgment at [86], [88].
Primary judgment at [151].
Primary judgment at [152].
Primary judgment at [154].
Primary judgment at [194].
Primary judgment at [197].
Primary judgment at [207].
Primary judgment at [208].
Ibid.
Primary judgment at [211].
Primary judgment at [212]-[213].
Civil Liability Act, s 5I(2).
[2006] NSWCA 45.
The judge in fact wrote "are not", but clearly meant "is".
Primary judgment at [238]-[251].
Primary judgment at [250]-[251].
Primary judgment at [228].
Peel and Goudkamp at [26-018].
318 US 54, 69 (1942).
Peel and Goudkamp at [26-019].
Commonwealth of Australia, 2002 (Final Report).
Final Report, par 8.32.
Peel and Goudkamp at [26-023].
Final Report, [8.25], set out at [47].
There was no reference to the worker's compensation legislation.
Interpretation Act 1987 (NSW), s 35(1).
McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073.
[1935] 1 KB 146.
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.
Ogwo v Taylor [1988] AC 431 at 447 (Lord Bridge).
(1967) 116 CLR 383; [1967] HCA 39.
(1972) 128 CLR 99; [1973] HCA 12.
Caterson, p 111 (Gibbs J).
(1961) 106 CLR 112; [1961] HCA 46.
Chapman at 120-121.
Chapman at 120.
Chapman at 119.
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.
(1970) 125 CLR 383; [1970] HCA 60.
(2010) 241 CLR 60; [2010] HCA 22.
Wicks at [22].
Smith v Baker [1891] AC 325; C Sappideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011), [24.90] (maintaining Prof Fleming's original text).
[2007] NSWCA 4; (2007) Aust Torts Rep 81-874, at [70]ff, [90], [93].
Carey at [3] (point not pressed), (McColl JA), [115]-[117] (inappropriate vehicle) (McDougall J).
Primary judgment at [61]
Primary judgment at [66].
Primary judgment at [44].
Tcpt, 19/09/17, p 117(8).
Primary judgment at [48].
Tcpt, p 118(25).
Site Operations Manual, clause 31-38.
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler, Nettle and Edelman JJ).
Primary judgment at [146].
Primary judgment at [154].
Above, fn 41, at 405.
[1967] 1 WLR 912 at 922.
Tcpt, 25/09/17, p 420(25).
Second defendant's outline of submissions, 21 November 2017, par 2(b)(ii).
Primary judgment at [172].
Primary judgment at [177].
(2000) 205 CLR 254; [2000] HCA 61.
Primary judgment at [179] referring to Modbury Triangle at [111]-[112] (Hayne J).
(1985) 156 CLR 7 at 20; [1985] HCA 3.
Primary judgment at [190].
Tcpt, 26/09/17, p 493(23).
Tcpt, p 517(40)-(45).
Primary judgment at [114]-[128].
Primary judgment at [120].
Primary judgment at [123].
Primary judgment at [124].
Tcpt, p 571(5).
Report, 31 July 2013, par 67, set out at [114] of the primary judgment.
Tcpt, pp 557(38)-558(25).
[2011] NSWSC 1351.
Civil Procedure Act, s 61.
Civil Procedure Act, s 60.
Primary judgment at [207].
Primary judgment at [208].
Primary judgment at [73]-[84].
See the discussion by Basten JA in Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [50]-[52].
Primary judgment at [85].
Notice of contention, 18 May 2020, par 4.
Tcpt, 20/9/17, p 182.
First respondent's outline of submissions, 15 May 2020, par 24.
[1999] 2 AC 22 at 29-31.
See Chappel v Hart (1998) 195 CLR 232.
[2016] 1 QdR 495; [2015] QCA 50 at [102].
Jamieson at [141].
Second respondent's submissions, 15 May 2020, par 30.
Ibid at par 33.
Ibid at par 34.
See s 5I at [6w] above.
Primary judgment at [253]-[278].
Tcpt, p 37(10).
Primary judgment at [265].
Primary judgment at [276].
Tcpt, p 42(38).
Tcpt, p 41(2)-(24).
Tcpt, p 43(25).
Tcpt, pp 46-47(28).
Tcpt, p 49.
Tcpt, p 58(33).
Tcpt, p 62(4)-(16).
Primary judgment at [284].
Tcpt, pp 53(40)-54(3).
Primary judgment at [298].
Tcpt, pp 311(16)-314(20).
Tcpt, pp 303(34)-304(25), pp 306(45)-307(35).
Tcpt, pp 310(40)-311(15).
Evidentiary statement of Melissa Smith, 22.6.17, par 16.
Evidentiary statement, 8 May 2017, par 46.
Tcpt, p 469(38)-(45), p 471(7)-(17).
Pusey at 406 (Windeyer J); Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [117] (McHugh J), [279] (Hayne J); State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 at [40] (Spigelman CJ). The harm must be a recognized psychiatric illness: Civil Liability Act, s 31.
Primary judgment at [307]. 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: 22 December 2020

Amendment Act 1951(SA)

Police [1992] 1 AC 310 Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874 Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12 Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455 Haynes v Harwood [1935] 1 KB 146 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Ogwo v Taylor [1988] AC 431 Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3 Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39 Smith v Baker [1891] AC 325 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Tiller v Atlantic Coast Line Railroad Co 318 US 54, 69 (1942) Westpac Banking Corporation v Jamieson [2016] 1 QdR 495; [2015] QCA 50 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 X v Sydney Children's Hospitals Speciality Network (No 5) [2011] NSWSC 1351 Texts Cited: Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed) Review of the Law of Negligence - Final Report Commonwealth of Australia, 2002 C Sappideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011) Category: Principal judgment Parties: Gengiz Capar (Appellant) SPG Investments Pty Ltd t/as Lidcombe Power Centre (First Respondent) Business Protection Group Pty Ltd (Second Respondent) The Workers Compensation Nominal Insurer (Third Respondent) Representation: Counsel: Mr D Campbell SC / Mr E Young (Appellant) Mr DD Feller SC (First Respondent) Mr R Cheney SC (Second Respondent) Mr S Flett/Mr S Blount (Third Respondent)

Solicitors: Premier Lawyers (Appellant) Vardanega Roberts (First Respondent) Clyde & Co (Second Respondent) Sparke Helmore (Third Respondent) File Number(s): 2019/159993 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 507 Date of Decision: 13 May 2019 Before: Bellew J File Number(s): 2013/78535

headnote [This headnote is not to be read as part of the judgment] In March 2010, the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of the morning of 17 March 2010, an intruder entered the premises by climbing through a gap above an external roller door and up a set of fire stairs. The appellant, who was seated in his office, detected the presence of the intruder near the premises from external CCTV cameras, but lost sight of him, as the CCTV did not extend to an area where other intruders had entered a month earlier. The appellant left the control room and went to investigate. Upon seeing the appellant, the intruder, who was wielding an axe, began to move towards the appellant and threatened to kill him. Shaken, the appellant escaped to the safety of the control room and called the police, who arrived shortly thereafter. They arrested the intruder, who had himself fled after being accosted by the appellant, outside the Centre. The appellant suffered psychiatric harm as a result of the incident. The appellant brought proceedings in negligence against the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG Investments to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant's employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security), with whom Business Protection Group had contracted. The claims against the owner and security contractor turned on principles governed by the Civil Liability Act 2002 (NSW). The claim against the employer was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW). After a 12-day hearing in the Common Law Division, all the appellant's claims were dismissed. The trial judge ultimately concluded that, by leaving the safety of the control room and accosting the intruder, the plaintiff was the "author of his own downfall". The trial judge contingently assessed damages. In the Court of Appeal, the following issues were raised: (1) admissibility of a joint experts' report on breach of duty and the weight given to the evidence of the appellant's expert; (2) the defence of voluntary assumption of risk; (3) scope of the duty of care owed by each defendant; (4) breach of duty; (5) causation; and (6) assessment of damages. The Court (Basten JA, McCallum JA agreeing, Emmett AJA dissenting) allowed the appeal and held: On issue 1: Admission of expert evidence

The reference to the "tender" of a joint expert report under UCPR 31.26(3) does not dispense with the requirements for admission of evidence: [135]. The experts' report was undoubtedly relevant and should have been admitted at trial and should now be admitted on appeal: [137]. In relation to Mr Flanders' evidence, the judge was not entitled to reject the evidence in relation to structural defects in the premises but was entitled to reject other aspects not dependent on the witness' area of expertise: [127]. X v Sydney Children's Hospitals Speciality Network (No 5) [2011] NSWSC 1351, discussed. On issue 2: Voluntary assumption of risk
The doctrine of voluntary assumption of risk by people putting themselves into harm's way to rescue others, or during emergencies, did not support the finding that the appellant was solely responsible for his own misfortune: [61]. McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073; Haynes v Harwood [1935] 1 KB 146; Rootes v Shelton (1972) 128 CLR 99; [1973] HCA 12; Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874, applied.
The appellant's conduct followed the broad description of steps expected to be taken in the situation: [85], and the instructions in the manual provided to him did not contemplate that he would perform an entirely passive role: [87]. The appellant acted without criticism from management: [88]-[89]. Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied. On issue 3: Duty of care
A duty of care not to cause mental harm is owed only to persons of normal fortitude who might suffer a psychiatric illness in the circumstances of the case: Civil Liability Act 2002 (NSW), s 32. In this case, consistent with the concessions made by the respondents, the evidence supported the conclusion that s 32 was satisfied: [97], [98]. Mount Isa Mines Ltd v Pusey [1967] 1 WLR 912, applied.
The trial judge was correct in finding that each respondent owed the appellant a duty of care: [91]. In particular: (i) SPG Investments as owner of the premises had responsibility for physical security ([107]) and had knowledge of the roller door gap vulnerability: [145], [148]. (ii) Business Protection, as subcontractor of SPG Investments, took responsibility for training security staff and defining the operations to be carried out, upon which a duty to security staff was founded: [115]-[116]. (iii) The employer's duty to the appellant was not in dispute below or on appeal: [117]. On issue 4: Breach of duty (Emmett AJA dissenting)
Each respondent breached its duty to the appellant. There was expert evidence that there were failures in securing the physical security of the premises: [129]. SPG Investments knew, directly or through its agent, of the weakness in physical security prior to 17 March 2010, and that the absence of a physical barrier preventing entry over the roller door was capable of ready rectification, which it took no steps to rectify: [145], [148].
Business Protection failed, following the February break in, to take reasonable steps to see that the premises were secured. There was no basis on which to reach a different conclusion in relation to the appellant's employer, Dynamite Security: [154], [155]-[156]. On issue 5: Causation
If steps had been taken to prevent entrance to the Centre through the gap above the roller door, the confrontation would not have occurred, and the injury would not have been suffered. Causation was established: [157]. On issue 6: Damages
The Court is able to review and correct the trial judge's contingent assessment of damages: [186]-[189]. Further submissions are required regarding apportionment and the appropriate calculation of quantum: [223]-[226]. Further observations
Section 5I, dealing with inherent risks, had no application in this case: [172]-[174].
There was no basis to support a finding of contributory negligence, in circumstances where the appellant acted in accordance with what was expected of him and his conduct did not demonstrate a failure to take reasonable care: [175]-[176].
The matter should be finally determined in the Court of the Appeal and not remitted. There was significant delay in resolving this matter: [94], [178]; the nature of the errors identified did not require a retrial and the Court was itself capable of assessing relief, and Part 6 of the Civil Procedure Act 2005 (NSW) mandates the Court to resolve the case finally in such circumstances: [184]. By Emmett AJA, dissenting on the issue of breach:
The duty of an occupier of a building is to take reasonable care for the safety of persons in the building: [248]. The content of that duty in this case did not extend to protecting a security guard from the risk of an intruder: [248]-[255].

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