Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright

The challenges on appeal

1. With respect to the notice of appeal, it is sufficient to identify the critical grounds with respect to liability, which challenged findings made by the trial judge: that Optus owed the plaintiff a relevant duty of care (ground 1), in describing the content of the duty (ground 2), and that Optus had breached that duty (ground 3). Further, error was alleged in finding that "the events" were reasonably foreseeable (ground 6). Ground 7 should be set out in full as it reflects a level of uncertainty as to the findings made by the trial judge: "7. The trial judge erred in finding (if he did) that there was negligence on the part of Mr Williams or Ms Hedges, and further erred in finding (if he did) that Optus should or could be made liable for any negligence on the part of Mr Williams or Ms Hedges."
2. The respondent filed a notice of contention containing three grounds. The first stated that the trial judge "should have had regard to the expert evidence in finding that the appellant breached its duty of care." The drafting was inapt and was not clarified by submissions. First, it did not identify a ground upon which the decision of the trial court should have been affirmed. It did not, for example, identify a finding which should have been made based on specific evidence. Secondly, the trial judge discussed the expert evidence in some detail. [24] That discussion occurred before a heading "Was the risk of personal injury including mental harm reasonably foreseeable?" and before a final passage setting out findings as to liability and breach; it therefore appears to have been considered in relation to breach. It is difficult to make much of ground 1 in the notice of contention. In any event it was not directed to the existence of a duty of care.
3. Ground 2 in the notice of contention sought a finding that Ms Hedges "directed" the plaintiff to attend on level 4. Whether ground 2 was necessary is debatable: the judge described Optus as putting the plaintiff "in harm's way", which suggested a form of direction. If it related to duty, it is not clear how.
4. Ground 3 in the notice of contention mirrored the uncertainty in ground 7 of the notice of appeal, stating that the judge erred "in finding, if he did so find, that the [plaintiff] could not succeed on the basis of vicarious liability."
5. As with ground 1, ground 3 failed to express a basis on which the judgment below should have been affirmed. If it had sought a finding of vicarious liability, it should have specified which employee (or employees) of Optus was (or were) negligent and in what respect. There was no express statement in the judgment that a finding of vicarious liability "could not" be made.

(a) nature of injury

1. In 2009, some eight years after the attack, the plaintiff (through a tutor) commenced proceedings in the Supreme Court seeking damages for personal injury from Optus. The particulars of injury identified in the pleadings were nervous shock, post-traumatic stress disorder, anxiety, depression, social phobia and bruising to his head.
2. A significant issue at trial (and on appeal), was the scope and nature of the duty of care owed to the plaintiff. A critical element in determining the existence of any duty was the nature of the injury for which the plaintiff claimed damages. That is because the Civil Liability Act 2002 (NSW) imposes restrictions on the circumstances in which a person owes a duty of care to another with respect to "mental harm". [25] The term "mental harm" is defined in Pt 3 of the Civil Liability Act to mean "impairment of a person's mental condition." [26] Section 27 also defines the expression "pure mental harm" (being "mental harm other than consequential mental harm") and "consequential mental harm" (being "mental harm that is a consequence of a personal injury of any other kind").
3. Although the trial judge accepted that the incident involved "a physical attack upon Mr Wright" and that he "suffered physical injuries from the blows struck by George", [27] the damages claimed and awarded related solely to his psychiatric condition. In identifying the cause of this condition the trial judge said: [28] "Those blows and his injuries are part and parcel of the incident. But I find it difficult to accept that the PTSD is merely consequential upon those physical injuries. Rather, in my judgment, that psychiatric condition is a case of pure mental harm being an independent injury arising out of the fear for his life suffered by Mr Wright as a result of George assaulting him and attempting to throw him off the balcony." That finding was not challenged on appeal. Although the case was thus one of pure mental harm and not consequential mental harm, that has limited relevance. [29]

(b) findings as to duty not to cause mental harm

1. A difficulty in identifying the duty said to have been owed by Optus to the plaintiff flows from both the manner of pleading the claim and the manner in which it was developed at trial. The amended statement of claim alleged negligence on the part of Optus, the particulars being directed to the lack of adequate systems and training involving incidents of the kind which occurred on 15 March 2001. As will be explained, this basis of liability was not accepted at trial. It is convenient to identify the statutory scheme within which critical findings were made.
2. Part 3 of the Civil Liability Act, entitled "Mental harm", which includes s 32, was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). Although the incident giving rise to the injury occurred before the commencement of those amendments, they extend to civil liability arising before their commencement, in proceedings commenced thereafter. [30] (This case was commenced in 2009.) As the trial judge accepted, s 32 therefore governed the present proceedings.
3. Section 32 is in the following terms: 32 Mental harm - duty of care (1) A person (the defendant) does not owe a duty of care to another person (the 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. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
4. This provision requires a different approach from that arising under general law principles. Where there is a pre-existing relationship, as with a contractual relationship of employment, the general law imposes a single comprehensive duty and not separate duties to protect against physical harm and to protect against psychiatric injury. [31] The same principle applies as between medical practitioner and patient, the law imposing a "single comprehensive duty" in relation to the provision of professional advice and treatment. [32]
5. A general law principle is, however, subject to statutory variation. One effect of s 32 of the Civil Liability Act is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that "a person of normal fortitude" might (b) "in the circumstances of the case" suffer (c) "a recognised psychiatric illness", if reasonable care were not taken.
6. The trial judge dealt with the question of duty by first positing the existence of a "general" duty of care owed by Optus to the plaintiff, and then considering the effect of s 32. Under the heading "Content of the duty owed", the judge stated: [33] "Subject to the two following points, Optus owed Mr Wright a duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding him from unreasonable risks in the methods by which the work was to be undertaken, extending to taking reasonable care to protect him from the criminal acts of others in the workplace. In the specific circumstances which arose on 15 March 2001 that duty involved the exercise of reasonable care in devising and instituting a system for managing the aberrant behaviour of George so as to safeguard Mr Wright, and other persons on the premises to perform work, from any foreseeable, not insignificant risk that George may assault him."
7. The two qualifications referred to in the opening words of this passage were (a) that "while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care"; [34] and (b) the application of Pt 3 of the Civil Liability Act. [35] It is the second matter, to which the trial judge then turned, which requires attention here.
8. Although such a two stage process was not necessarily erroneous, it had the potential to miscarry. Thus, while it was no doubt true, as the trial judge held, that Optus owed a general duty of care to the plaintiff, even though not an employee of Optus, that conclusion was of limited relevance. That conclusion was reached by applying principles from Modbury Triangle Shopping Centre Pty Ltd v Anzil. [36] The trial judge referred to the following statement of Gleeson CJ in Modbury Triangle: [37] "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."
9. The trial judge also referred to a passage from the judgment of Hayne J in Modbury Triangle: [38] "Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm's way. The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken. In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party."
10. Consideration of a "general" duty may have been significant if the conclusion were that no such duty was owed; s 32 is stated in the negative and could be seen as imposing a conditional qualification on a broader category of circumstances where a duty might be owed. However, the question which s 32(1) requires to be addressed focuses upon "the circumstances of the case". The trial judge was undoubtedly alert to that factor and, in reaching a final conclusion on the question of duty, did indeed focus upon the circumstances of the case; however, by reference to the general duty, the trial judge identified two further aspects of the duty, stating: [39] "Moreover, Optus' duty was personal or non-delegable, and in those circumstances Mr Williams' acts and omissions may be attributed to it without necessary reliance on the doctrine of vicarious liability: TNT v Christie at [47]."
11. It is necessary to consider both parts of this statement and the reliance upon the judgment of Mason P in TNT Australia Pty Ltd v Christie. [40] In Christie at [46], Mason P set out a lengthy extract from his own judgment in Lepore v State of New South Wales. [41] In Lepore Mason P stated: "[32] Where the non-delegable duty is one of care (and most reported cases deal with this situation) the duty is expressed as requiring the defendant to ensure that reasonable care is taken …. [42] … [43] … However, the concept extends to negligence by employees, because it may be invoked where the fault is, or might be, that of an employee whether or not acting in the course of employment. Many of the hospital cases are in this category, because there is uncertainty whether the personal fault lay with an employee (eg a nurse) or an independent contractor (eg a visiting specialist surgeon)."
12. Following the reference to Lepore, Mason P concluded in Christie at [47]: "The authorities cited in par [32] of this extract demonstrate that, in the realm of negligence, (a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care."
13. Although Mason P dismissed the reasoning in NSW v Lepore in the High Court as not affecting his approach in this Court, [43] subsequent authority casts doubt on the justification for continued use of the term "non-delegable". [44] Importantly for present purposes, as explained by Gleeson CJ in NSW v Lepore in the High Court, the purpose and effect of characterising a duty of care as either "non-delegable" or "personal" is "not always entirely clear". [45] The Chief Justice stated: [46] "In the context of employment, for example, a duty to take reasonable care for the safety of workers cannot be discharged by delegation; but delegation does not transform it into a duty to keep workers free from all harm. A duty to see that reasonable care is taken for the safety of workers is different from a duty to preserve them from harm."
14. Two points arise from this discussion which are critical in the present case. First, as the reference to the acts and omissions of Mr Williams indicated, the judge found liability in Optus based on the conduct of its employee. As there was no question of Mr Williams acting outside the scope of his employment, or having any immunity from liability, it is difficult to be sure what purpose was served in distinguishing the "personal or non-delegable" duty of Optus from its vicarious liability. Indeed, it follows from the passage in Christie at [47] and the reasoning of Gleeson CJ in NSW v Lepore that there must have been "damage caused by lack of reasonable care" by some person, in this case Mr Williams; there is no duty to keep workers free from all harm. It will be necessary to return to that issue in due course.
15. Secondly, as to foreseeability, after referring to the elements of s 32 and the need to determine the question of duty by reference to "the circumstances of the case", the judge noted the following submission by Optus: [47] "Optus relied very substantially on what might be regarded as the generally innocuous nature of call-centre work, the unlikelihood of violence occurring between clerical workers, the lack of knowledge, actual or constructive on the part of Optus of the character of George and the unpredictability of the conduct he in fact engaged in."
16. Accepting that foreseeability must be decided as a matter of foresight and not hindsight, and "without knowledge of the precise circumstances in which the harm was inflicted, and as though it had not occurred", [48] the trial judge continued: [49] "Having said that, the approach urged by Optus is flawed in my judgment because it fails to focus upon the circumstances of the events which unfolded on the roof, all of which were within the direct knowledge of Optus. Moreover, the pre-existing relationship between Optus and Mr Wright itself gave rise to a duty of care; it was analogous to the employment relationship which is an established category of duty covering mental harm, where such harm is reasonably foreseeable: Mt Isa Mines Ltd v Pusey. [50] Assuming that it was foreseeable in the circumstances pertaining on the roof that George may assault Mr Wright when he was brought to him, a question I will consider in detail when dealing with breach, I am satisfied that the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. In arriving at this conclusion I have taken into account the evidence of Ms Hedges of her observations of Mr Wright following George's attack."
17. There are two basic problems with this reasoning which may result from a combination of the issues identified above. The first is the finding as to a general duty before applying the terms of s 32, which require attention to "the circumstances of the case". The second is the characterisation of the general duty as personal or non-delegable. The result was an attribution of knowledge to Optus arising from the combined knowledge of its various employees. However, until that knowledge was combined (and attributed to Optus) a duty of care was not established. That is clear from the following passage in the reasoning of the trial judge, albeit occurring in the discussion of breach, rather than the existence of the duty: [51] "Accurate identification of the risk requires the adoption of the appropriate level of abstraction to the circumstances of the case. The risk here is not an assessment of the risk of injury to an employee from the criminal acts of third parties on the premises. Rather, the risk is the risk of George inflicting personal injury, including mental harm on Mr Wright in the circumstances actually known to Optus through its employees on 15 March 2001 before Mr Wright was requested to attend the roof to speak to George. It would amount to the adoption of a level of abstraction all too general in nature to pose the question 'what is the chance of one call centre trainee assaulting another', stripped of the circumstances actually occurring on 15 March 2001 before the assault took place."
18. There is an important elision in the reasoning at this point. If the liability of Optus were truly vicarious (whether described as vicarious or as resulting from a non-delegable duty) then there must have been negligence on the part of its employee. What the employee ought or ought not to have done may well depend upon the circumstances of which he or she was, or ought to have been, aware. The negligent conduct of the employee may then be attributed to Optus. However, that is not what happened here. [52] On the other hand, if Optus itself had a duty to act in a certain way, that must depend upon the reasonable foreseeability of the circumstances which arose on the morning of 15 March 2001 on level 4 of its building, at some earlier point in time. That level of foresight is not to be identified by attributing to it knowledge (which it did not actually have) which arose in the course of the events giving rise to the alleged breach of duty. Nor is there authority for the proposition that knowledge in different employees (operating below the level of senior management) can be accumulated and attributed to the company.
19. The issue of attribution of knowledge was not explicitly addressed in the judgment below. However, attribution of conduct was addressed. That discussion occurred in the following context: [53] "I am conscious that no case is advanced against Optus in terms of vicarious liability for the negligence of Mr Williams. That is to say, such a case has not been pleaded and that point is taken by Counsel for Optus. The breach question must be considered from the standpoint of a reasonable person in the position of Optus. … As Mr Williams appears to have been reporting to Ms Taylor his conduct arguably cannot be attributed directly to Optus: Tesco Supermarkets Ltd v Nattrass. [54] Even so, in taking the steps he took to manage the situation, he was acting within the scope of his employment and with the authority of his superiors who had left the management of the situation to him. He was Optus' man on the ground for dealing with this matter."
20. After noting the discussion of principles of attribution by Spigelman CJ in Director General, Department of Education and Training v MT, [55] the judge continued: [56] "Spigelman CJ made reference to Hollis v Vabu Pty Ltd. [57] This passage refers to the concept of an employer's enterprise creating a risk that produces a tortious act for which the employer must bear responsibility." [58]
21. None of this authority supports the proposition that an aggregation of knowledge of various employees is to be attributed to the corporate employer for the purpose of demonstrating negligence on its part. The suggestion that Mr Williams was Optus' "man on the ground" does not demonstrate that, for this purpose his knowledge was that of the company: rather, his knowledge was directly relevant to establishing negligence on his part for which the company might be vicariously liable. This was the basis of liability eschewed by the plaintiff. (The reason for not asserting liability on that basis may have been because Mr Williams did not have sufficient knowledge to support a finding that he was negligent.)
22. The reliance on an aggregation of knowledge was confirmed when the trial judge set out, in dealing with the question of breach, a list of relevant elements of knowledge, commencing: [59] "Turning to s 5B(1)(a) [of the Civil Liability Act] Optus knew, or ought to have known, through the actual knowledge possessed by its employees, relevantly Ms Hedges and Mr Williams …."

(c) application of s 32

1. Section 32 states that there is no duty of care not to cause mental harm, unless the composite criterion specified in that provision is satisfied. 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. Before turning to the circumstances of the present case, reference should be made to the further provision as to what is encompassed by the phrase "the circumstances of the case", identified in s 32(2).
2. Part 3 also requires that, in a case of pure mental harm, a distinction be drawn between the harm which arises in connection with a third person (the victim) being killed, injured or put in peril by the act or omission of the defendant (s 30(1)) and the situation where mental harm arises from an act or omission of the defendant directed against the plaintiff. Section 30 imposes limits on recovery in circumstances where the mental harm results from mental or nervous shock suffered by the plaintiff, caused by harm or threat of harm to the victim. That was not this case: the respondent suffered pure mental harm as a result of an attack by a third party and, as he submitted, the negligent conduct of Optus, which either put him in the way of the attack, or failed to prevent him being subjected to the attack. It follows that s 30 has no application in this case. The critical provision is s 32 which applies to both pure mental harm and consequential mental harm and to harm caused directly to the plaintiff and harm caused to a third party victim which indirectly affects the plaintiff.
3. The terms of Part 3 generally and s 32 in particular were addressed by the High Court in Wicks v State Rail Authority (NSW). [60] However, the plaintiffs in that case were police officers who had attended a train crash and undertaken rescue operations; their claims for damages for mental harm arose in connection with others being killed or injured. The defendant was the operator of the rail service. With respect to s 32, the Court noted that the provision operated as a necessary condition for a finding that the defendant owed a duty of care, without setting out other circumstances which might be relevant to the existence of such a duty. [61] While s 32(1) required that the negative condition be assessed according to "the circumstances of the case", the High Court further noted that the circumstances identified in s 32(2) were matters to be taken into account and not themselves necessary conditions of the existence of a duty. [62]
4. In the present case, the matters set out in s 32(2)(b) and (c) appear to relate only to cases where there has been harm to a third party victim; the matters set out in pars (a) and (d) are relevant to the assessment in this case. It was common ground that any assessment of the harm suffered by the respondent required consideration of the pre-existing relationship between him and Optus, in accordance with par (d).
5. With respect to par (a), the Court in Wicks explained the term "sudden shock" as referring "to an event or a cause." [63] As it is not disputed that the respondent suffered mental harm as a result of the attack on him by Mr George, it does not matter whether or not the attack can properly be described as a "sudden shock" though the description may be available. The fact of the attack is undoubtedly a central circumstance of the case which must be taken into account in determining the existence of a duty. The elements of sudden shock and direct perception, contained in pars (a) and (b) of s 32(2) have at times been used as control devices limiting the availability of recovery for mental harm. Both applied in cases involving a third party victim. Their role as necessary requirements of liability was rejected by the High Court in Annetts v Australian Stations Pty Ltd, heard with Tame. [64] They add nothing to the analysis of the circumstances of the present case.
6. The requirement that a reasonable person ought to have foreseen that a person of normal fortitude (that is mental or emotional fortitude), might suffer a psychiatric illness if reasonable care were not taken is an important factor to be considered. That is because different circumstances will give rise to different possible levels of mental harm in persons of normal fortitude: the nature of the possible consequences of the defendant's actions will therefore be important.
7. This exercise was not undertaken in considering the question of duty; it was, however, addressed in considering breach. Thus the trial judge stated: [65] "Accurate identification of the risk requires the adoption of the appropriate level of abstraction to the circumstances of the case. The risk here is not an assessment of the risk of injury to an employee from the criminal acts of third parties on the premises. Rather, the risk is the risk of George inflicting personal injury, including mental harm on Mr Wright in the circumstances actually known to Optus through its employees on 15 March 2001 before Mr Wright was requested to attend the roof to speak to George. It would amount to the adoption of a level of abstraction all too general in nature to pose the question 'what is the chance of one call centre trainee assaulting another', stripped of the circumstances actually occurring on 15 March 2001 before the assault took place."
8. With respect, that assessment may have been relevant to any question of negligence on the part of an employee, such as Mr Williams; it could only be relevant to the direct duty owed by Optus if it ought reasonably to have foreseen those particular circumstances. Although the judge identified, early in his analysis, a duty which required "establishing, maintaining and enforcing a safe system of work", [66] the passage last quoted is consistent with a finding that no duty which satisfied s 32 arose in the circumstances of the case, or perhaps, as the latter passage came under the heading "Did Optus breach the duty owed", to the extent that there was a duty, it was not breached.
9. Furthermore, it would not have been sufficient to ask "what is the chance of one call-centre trainee assaulting another", but rather it would be necessary to ask "was it reasonably foreseeable that one call-centre trainee might assault another 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?"
10. In this context, the trial judge referred to the evidence of a number of experts, including a psychiatrist, Dr Roberts, called by Optus, concluding: [67] "I can certainly accept that Optus in March 2001 was a large trading company having a national business and employing, whether directly, as independent contractors, or otherwise, large numbers of people. Such an employer, as opposed to a small business, might be expected to have greater access to expert consultants in devising its systems of work. However that may be, the situation that developed relating to George's aberrant behaviour was, to say the least, on the evidence, unusual. It called for a relatively immediate response; it had to be dealt with 'now'. That is how Mr Williams, who seemed to be in charge, perceived it. It is apparent that he consulted others within the company. It seems unrealistic to suggest, or expect, that he should, or would, have gone back to his desk to thumb through some manual to work out how to manage the situation. However one analyses the case otherwise, that contention, in my judgment, falls short of the standard of reasonableness."
11. That is an indication that, duty aside, there was no negligence on the part of Optus, based on the foreseeability of the actual events which occurred. Indeed, liability based on such general foreseeability, which might have required the development of procedures and protocols to address the risks, was expressly rejected: [68] "Section 5B applies to cases where the negligence is said to consist in the failure to take precautions against a risk of harm…. It is also important to focus on the suggested precautions given that the plaintiff carries the onus of proof. In the case at hand, they are: (a) adopting a policy for dealing with potential violence in the workplace that was made known to all staff and available to them in training manuals; (b) removing George from the premises; it was said either by way of security or police involvement; and finally (c) not putting Mr Wright in harms way by exposing him to George's aberrant behaviour on the roof. I have already rejected the idea that adoption of a policy of a publication of a training manual is reasonable and I will not deal with it further. I will deal with the remaining two options when I consider s 5B(1)(c)."
12. The trial judge then referred to the various matters actually known to Ms Hedges and Mr Williams, including that Mr George "had absented himself from his training room where he was supposed to be; taken himself to the roof where he was not supposed to be at that time; was behaving in an aberrant manner, pacing and acting, in lay terms, as though he was psychotic or on drugs…". [69]
13. It appears that an assumption was made about what Ms Hedges may have meant when describing Mr George as possibly "psychotic" or on drugs and as treating Ms Hedges as someone who knew or ought to have known that Mr George was dangerous, in circumstances where no such proposition was put to Mr Dee or Mr Williams, who spoke to Mr George before the incident and gave evidence. On this basis, finding that reasonable care required a combination of (b) and (c) above, the trial judge concluded: [70] "That is to say, George should have been removed from the premises, and until that was done no one, and especially not Mr Wright, the person for whom he had been asking, the only person in whom he expressed an interest, should have been permitted to go near him whilst he remained in a place of possible danger on the roof."

(d) conclusions as to direct duty

1. In order to identify a duty owed by Optus directly to the plaintiff, it was necessary to make the following findings: 1. it was reasonably foreseeable that Optus' staff or persons undergoing training on Optus' premises, being persons of normal fortitude, might encounter other staff or trainees exhibiting aberrant behaviour of such severity as to cause a recognised psychiatric illness, absent the infliction of another injury; 2. that being foreseeable, reasonable care required that Optus give instruction and training to all staff that, if such behaviour were encountered, they should not approach the person, should instruct a superior as to their observations, and not allow other staff members to approach the person, until police arrived.
2. Findings (a) and (b) were rejected and were not in terms sought from this Court. In any event, based on the submissions made to this Court, no basis was revealed on which to make such findings. Accordingly, the plaintiff did not establish that Optus owed him a duty of care with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act.
3. The critical step in determining the scope or content of any duty owed by Optus to the plaintiff required identification of the risk of particular events which might give rise to mental harm. In a case where the mental harm resulted from an attack by a third party upon the plaintiff, it was important to identify with care the nature of the conduct which the appellant should have foreseen.
4. There was no express finding as to the nature of the risk which might lead a person of normal fortitude to suffer a psychiatric illness, which was an essential step in determining whether Optus owed the plaintiff a duty of care with respect to the mental harm which he suffered at the hands of Mr George. Arguably, it was only an assault of that severity, intended to put his life in peril, which Optus ought to have foreseen might cause a person of normal fortitude to suffer a psychiatric illness. Absent a finding as to the foreseeability of such conduct, Optus was under no relevant duty to take reasonable care.
5. Direct liability appears to have been upheld on a different basis, namely that: 1. Given the combined knowledge of Optus staff members as to the aberrant behaviour of Mr George on 15 March 2001 and his wish to speak to the plaintiff, who denied any prior relationship with him, Optus ought reasonably have foreseen that a person such as the plaintiff, being a person of normal fortitude, who approached Mr George might be assaulted and suffer a recognised psychiatric illness; and 2. Optus therefore owed a duty of care to all persons under its control or direction not to direct, request or permit such persons to approach Mr George until police had taken control of the situation.
6. With respect to these elements, no finding was made sufficient to establish negligence on the part of any specific employee of Optus, for which Optus might be vicariously liable. There is no basis in law which would allow a finding that Optus owed a duty of care to the plaintiff resulting from an aggregation of the knowledge of different (non-supervisory) employees. Even if a duty could arise on that basis, Optus would not be liable for the conduct of employees who were not themselves negligent, a point which will be explained further in dealing with vicarious liability.

Contention (1) - the expert evidence

1. There is little to be made of the contention that the trial judge should have had regard to the expert evidence in finding breach of duty: he did so. The discussion of breach commenced at [89] and was followed almost immediately by a discussion of the expert evidence of a psychiatrist, Dr Roberts, an ergonomist trained as a psychologist, Dr Caponecchia, and another ergonomist, Ms Armour.
2. Nothing was said in the course of oral submissions on the appeal which suggested that the evidence of the ergonomists was of any assistance with respect to the question of the duty of care. However, some weight was placed on the evidence of Dr Roberts, which requires reference to the manner in which the plaintiff's case was addressed on the appeal. In essence, senior counsel for the respondent/plaintiff supported the approach of the trial judge in relation to duty. With a degree of hyperbole, he asserted that "[t]his is a case about foreseeability" and, further, that "if we can establish all of the elements of s 5B we win". [71] He described the duty in the following terms: [72] "The duty we say can be couched in a number of ways but essentially it's a duty to take reasonable care not to expose the plaintiff to unnecessary risk of injury or not to put the plaintiff as a person in the position of an employee in harm's way."
3. Turning to risk, counsel accepted that "if the risk of harm is determined only with reference to what happened, that is, that Mr George tried to kill the plaintiff, if that is the description of the risk of harm it is very difficult in any case because no one would have known that he was about to try and kill him." [73] The respondent's preferred identification of the risk of harm was "the risk of a person suffering physical or mental harm as a result of exposure to Mr George." [74]
4. The plaintiff thus accepted that the precise circumstances which arose on the morning of 15 March 2001 were not reasonably foreseeable by Optus. The plaintiff relied on the more general proposition that, at least by the time Mr Williams agreed with Ms Hedges' suggestion that she ask the plaintiff to come up and speak to Mr George, and Ms Hedges had spoken to the plaintiff and asked him to go level 4, the possibility of physical or mental harm was reasonably foreseeable. Recognising that that description might not satisfy s 32 of the Civil Liability Act, counsel further submitted that any physical injury might result in a psychiatric illness. For that purpose, he relied on the evidence of Dr Roberts. To what extent a finding of duty may properly be based on expert evidence was not discussed and may be put to one side for present purposes. Contrary to the notice of contention, the trial judge gave careful consideration to Dr Roberts' evidence, taking into account both of his reports and his cross-examination. [75]
5. Dr Roberts' opinion as to foreseeability was expressed in the following terms: [76] "The concern arising from [George's] behaviour on the roof namely of him appearing drug affected occurred only moments before the attack … upon Mr Wright and even assuming that Mr George was drug affected to extrapolate from that circumstances [sic] that an attack would occur on Mr Wright would not have been able to be an extrapolation made either by a lay or non-lay (psychiatrist/psychologist), who observed such behaviour. I do not consider therefore it is on psychiatric grounds tenable to argue that Mr George's attack upon Mr Glen Wright could have been foreseen or prevented (Exhibit 1D5) report 29th October 2010."
6. The trial judge noted that Dr Roberts had available to him more information than "any of the active participants on the roof on 15 March 2001" and information which "was not available to Optus more generally." [77] However, the opinion was not excluded. The judge also discounted Dr Roberts' reference to behaviour which took place "only moments before the attack" or, as he said in his oral testimony "in the moments prior to his attack". [78] The judge found that the aberrant behaviour took place over a period which was "perhaps as long as one hour before the attack on Mr Wright", [79] although he had earlier found that "[t]he interaction between Ms Hedges and Mr Wright on the ground floor could not have taken very long because when they arrived on the roof Mr Williams had not yet departed to report the situation to his superiors." [80]
7. The trial judge then continued: [81] "Moreover, Dr Roberts was concerned with the predictability of George's behaviour with the benefit of knowledge of the attack that in fact occurred. This is classic hindsight reasoning fallacy. At [Tcpt p 282(25)] he said: I was aware he presented with pinpoint pupils and was moving about in an agitated [manner] and displayed an acute brief period of disturbance from which, in my view, no prediction could have been made as to what behaviour would follow. (Emphasis added) And at [Tcpt p 283(40)]: Even having regard to Mr George's behaviour on the roof there is no possibility on reasonable psychiatric grounds that it could be inferred as to what behaviour would follow. (Emphasis added)."
8. The point was clarified by a question from the judge in the following terms: [82] "Q. Dr Roberts, do I understand that the opinion expressed in your report is that notwithstanding the observation of inappropriate behaviour a person who had observed that behaviour could not have predicted that Mr George would attempt to murder Mr Wright? A. That's correct, your Honour. If I was there I could have concurred with a lay observation that abnormal behaviour was occurring, but there's no way that I could have predicted that violence would follow or the nature of the violence."
9. It is by no means clear why the trial judge considered that this was "classic hindsight reasoning". Predictability is an essential element of reasonable foresight; importantly, it is an essential element of that which must be foreseen as something which might occur, for the purposes of s 32. The judge was wrong to put the evidence aside on that basis, although its acceptance would not have assisted the plaintiff. The judge did, however, accept the relevance of Dr Roberts' opinion that "[d]isturbed behaviour causes apprehension [in] bystanders". Dr Roberts continued: "I think it's as high as you can put it. You can't infer any sequelae arising from that." [83]
10. In short, this evidence supported the view that, whilst people may have been apprehensive at the strange behaviour exhibited by Mr George, it was not predictable that such behaviour might lead to violence. One would not reasonably foresee psychiatric illness resulting from that degree of apprehension of a bystander.
11. In the course of cross-examining Dr Roberts, counsel obtained agreement with the proposition that "people who suffer from violent attacks often end up with a psychiatric response to the attack as well?" [84] The trial judge also referred to Dr Roberts' opinion "about the incidence of mental harm following a violent attack" as "[r]elevant". [85]
12. In considering the operation of s 5B(1)(a) of the Civil Liability Act (the foreseeability of the risk of harm) the trial judge set out a list of factors, constituting the combined (but not necessarily shared) knowledge of Ms Hedges and Mr Williams, ending with the following: [86] "…ordinary people placed in their situation would have an apprehension that a psychotic person or a person so drugged as to behave as George was behaving posed a risk of harm to the personal security of himself and others. This last point is consistent with common experience, and for what it is worth, with the evidence of Dr Roberts I have accepted. Clearly, Mr Williams continued to have such an apprehension."
13. This finding (and the evidence on which it was based) fell short of a finding that a violent attack was foreseeable, or, relevantly, was foreseeable at a time at which Optus itself had a duty not to place the plaintiff in the situation in which he ultimately suffered a serious psychiatric illness. It takes the plaintiff's case no further.

Contention (2) - the direction

1. Although the contention was not abandoned, little, if anything, was said in support of it either in writing or orally.
2. There was significant evidence in the course of the trial as to whether Ms Hedges requested the plaintiff to go up to level 4, or directed him to do so, and as to whether the plaintiff indicated reluctance, or went voluntarily. [87] The judge did not think that this issue was of importance in the case. [88] The important factor was that "he would not have gone to the roof to talk to George but for the intervention of Ms Hedges which was prompted by Mr Williams." [89] The judge accepted that the plaintiff went "reluctantly." [90]
3. Nothing having been submitted to show why that, entirely reasonable, finding was erroneous, no more need be said in relation to the contention. It is likely that the issue was seen as relevant to breach, rather than duty.

Vicarious liability

1. The uncertainty expressed in the notice of appeal and notice of contention [91] as to whether the trial judge made a finding of vicarious liability based on the negligence of an individual employee of Optus should be resolved against the plaintiff. Any such finding should have been made in express terms; it was not. Parts of the judge's reasoning relevant to duty of care appeared in the discussion of breach. Even including that part of the reasoning, the trial judge made no express finding that any of the three employees of Optus was negligent. On any view, each of them acted responsibly and reasonably in the circumstances.
2. Further, it is reasonably clear from the judge's reasoning that no such finding was intended. The factual elements on which such a finding would be based were not established.
3. It was specifically pleaded, in the alternative to direct liability, that Optus was vicariously liable, but only for the negligence of Ms Hedges who, it was alleged, exposed the plaintiff to "what was obviously a dangerous and potentially life threatening situation". [92]
4. Ms Hedges did not give evidence at the trial, but her statement to the police, prepared on the day of the incident, included a full account of her activities. It was tendered by the plaintiff. Critical parts of its contents have been referred to above. The judge made no finding that Ms Hedges was negligent; it followed that there was no finding of vicarious liability on the part of Optus based on her negligence. There was no notice of contention seeking such a finding.
5. The other two Optus' employees involved in the events of the morning were Mr Williams and Mr Dee. After his assistance had been sought by Mr Williams, Mr Dee remained on level 4, keeping an eye on Mr George. There was no case of negligence pleaded or run in relation to Mr Dee.
6. While the pleadings did not allege negligence on the part of Mr Williams, and there was no express finding by the trial judge of negligence on his part, there were submissions by the respondent on the appeal that the finding of negligence on the part of Optus was based upon the combined knowledge of Ms Hedges and Mr Williams (and possibly Mr Dee) and the steps taken by Mr Williams in response to those matters of which he was aware. (There was no case that Mr Williams ought to have been aware of matters of which he was not in fact aware.) It did not follow that Mr Williams owed a duty of care within the terms of s 32. No findings were directed to those elements and no submissions on appeal addressed the evidence in those terms.
7. The absence of critical findings was in part because Mr Williams did not have information based on Ms Hedges' conversation with the plaintiff which he accepted would have caused him not to permit the plaintiff to be left with Mr George, even in the presence of Mr Dee. It was not suggested that he was in some way negligent in not obtaining the information which he did not know existed. The question as to what he ought reasonably to have foreseen, in the terms of psychiatric illness, was not addressed.
8. To conclude that no person should have been permitted to approach Mr George (in circumstances where Ms Hedges, three other young women and two men had spoken with him or been near him with no apparent threat to them) or, finally, that the one person he had asked to speak to should not have been allowed to speak to him, involved a number of unwarranted steps and bears the hallmarks of benefiting from hindsight. Even if Ms Hedges had thought he appeared "psychotic", the totality of the evidence, viewed prospectively, did not warrant the conclusion that she ought to have foreseen that Mr George might attempt to murder the plaintiff, or otherwise inflict an injury sufficiently serious that a person of normal fortitude might, in the circumstances of the case, suffer psychiatric illness.
9. On the basis of the evidence set out above, [93] it could not have been concluded as probable that any of the three members of Optus' staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. However, absent such a finding, none of them owed the plaintiff a duty of care with respect to mental harm. Accordingly, in so far as the liability of Optus depended upon its vicarious liability for the acts of Ms Hedges, or the unpleaded acts of Mr Williams or Mr Dee, the plaintiff's case was bound to fail.

Conclusions and orders

1. For these reasons, the appeal should be upheld and the plaintiff's claim dismissed. To that end, the Court should make the following orders: 1. Allow the appeal and set aside the orders made in the Common Law Division on 20 March 2015, other than the order setting aside orders pronounced on 6 March 2015. 2. In place thereof, give judgment for the first defendant against the plaintiff and otherwise dismiss the amended statement of claim filed 24 July 2012. 3. Dismiss the cross-claims between Optus Administration Pty Ltd and IPA Personnel Pty Ltd and Drake Australia Pty Ltd. 4. Order that the plaintiff pay the first defendant's costs of the trial (excluding any costs associated with the cross-claims). 5. Order that the first respondent pay the appellant's costs of the appeal. 6. Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to his costs of the appeal.
2. HOEBEN JA: I am grateful to Basten and Gleeson JJA for their detailed review of the factual background to this case. Regrettably, I have come to a different conclusion to Gleeson JA on the question of whether Optus owed Mr Wright a duty to take care not to cause him mental harm. It follows from that finding that the appeal should be upheld. Accordingly, I agree with the orders proposed by Basten JA and with his Honour's reasons.
3. As was made clear by Basten JA the critical question in identifying the scope or content of the duty owed by Optus to Mr Wright was to identify the risk which might give rise to mental harm. In a case such as this where the mental harm resulted from an attack by a third party upon the plaintiff, it is important to identify with some precision the nature of the conduct which the defendant should have foreseen.
4. At [77] the trial judge identified the event against which the foreseeability of mental harm was to be assessed as the risk that Mr George "may assault" Mr Wright. This was an error which affected in a fundamental way the scope of the duty found by his Honour and the question of breach. The correct approach is that the duty in the present case depended upon the conduct of Mr George in seeking to kill Mr Wright. It is only that conduct which put his life in peril, that Optus should have foreseen might cause a person of normal fortitude to suffer a psychiatric illness. Without a finding as to the foreseeability of such conduct, Optus was under no duty to take reasonable care to prevent such conduct.
5. The evidence did not rise to that standard. It did not provide a basis for concluding that before the incident occurred any of the Optus employees, being Ms Hedges, Mr Dee and Mr Williams, ought to have considered that Mr George was dangerous in the sense that he might try to kill Mr Wright. This conduct was clearly unexpected. There is a considerable difference between Mr George appearing to those persons to be affected by drugs and them anticipating that he might try to murder someone who was a relative stranger to him. Some specific appreciation of a risk to life was required but no finding to that effect was made.
6. In summary when the totality of the evidence is viewed prospectively it was not open to the trial judge to conclude that Optus should have foreseen that Mr George might attempt to kill Mr Wright or otherwise cause him serious injury so as to cause him to suffer psychiatric illness. I agree with the reasons of Basten JA.
7. GLEESON JA: In March 2001 the appellant, Optus Administration Pty Limited (Optus) conducted a three-month training course for prospective call centre staff, at its premises at Gordon, New South Wales. Those premises comprised a four-storey building which had a recreation room and balcony with a waist-high railing on the fourth floor (also referred to as level 4 or the roof). The training course was held on the ground floor (also referred to as level 1). The course leader was Ms Natalie Hedges (Ms Hedges). Thirteen people attended the training course including first respondent, Glenn Stuart Wright (Mr Wright) and Nathaniel George (Mr George). Mr Wright was 20 years of age at the time.
8. Mr Wright had been placed in the training course by the second respondent, IPA Personnel Pty Ltd (IPA), a labour-hire company, which supplied his services to Optus under a Personnel Agency Agreement. IPA paid Mr Wright to attend the course and was reimbursed for that expense by Optus. The primary judge found that whilst Mr Wright was at work during the hours specified by Optus he was subject to the direction and control of Optus and those persons it placed in a supervisory role over him. Mr George had been placed in the same training course by another labour-hire company, Drake Personnel Pty Ltd (Drake). Drake supplied his services to Optus under an agency arrangement similar to that between IPA and Optus.
9. On the third day of the training course, Mr George attempted to murder Mr Wright by attempting to throw him off the roof balcony on level 4 of Optus' premises. The circumstances of what occurred on 15 March 2001 are described below. Mr Wright suffered some physical injury but no compensable loss. He subsequently developed a serious form of post-traumatic stress disorder.
10. Mr Wright brought proceedings against Optus claiming damages for personal injury. The particulars of injuries identified in Mr Wright's claim were nervous shock, post-traumatic stress disorder, anxiety, depression, social phobia and bruising to his head.
11. Optus filed a cross-claim against Drake, IPA, and another Drake-related entity, claiming contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Optus only pursued its claim against IPA. In turn, IPA brought a cross-claim against Optus seeking indemnity for compensation paid to, for or on behalf of Mr Wright under the Workers Compensation Act 1987 (NSW) (Workers Compensation Act), s 151Z(1)(d).
12. Mr Wright's claim against Optus for damages succeeded at trial. The primary judge (Campbell J) delivered his principal reasons for judgment on 6 March 2015: Wright by his tutor Wright v Optus Administration Pty Limited [2015] NSWSC 160. (Paragraph references below are taken from Caselaw.) His Honour awarded Mr Wright damages of $3,851,286; found that IPA was not liable to Optus for indemnity or contribution, and ordered judgment for IPA on Optus' cross-claim and made a declaration under s 151Z(1)(d) of the Workers Compensation Act that Optus was bound to indemnify IPA for all amounts paid to, for or on behalf of Mr Wright under that Act; and made costs orders in favour of Mr Wright and IPA against Optus. His Honour deferred entry of these orders to enable the parties, among other things, to check his calculations in respect of damages.
13. On 20 March 2015 his Honour delivered further reasons for making orders in the terms indicated in his principal reasons, subject to two matters. One was that, following agreement between the parties as to certain miscalculations in his Honour's assessment of damages, judgment was entered in favour of Mr Wright for $3,922,116.09. The other was that a special costs order was made against Optus in favour of Mr Wright as from 9 November 2012: Wright by his tutor Wright v Optus Administration Pty Limited (No 2) [2015] NSWSC 288.
14. By its appeal, Optus seeks to set aside the judgment and costs order in favour of Mr Wright, and the declaration and costs order in favour of IPA. Optus also seeks an order that IPA's cross-claim be dismissed with no order as to costs.

The events of 15 March 2001

1. Mr Wright and Mr George were unknown to each other prior to commencing the training course at Optus' premises on 12 March 2001. They had very little contact with each other during the training course. The course leader, Ms Hedges, aged 22, had been in the position of mobile trainer for two months. Shortly prior to 15 March 2001, Mr George formed a desire to kill someone and, on the previous night, randomly settled on Mr Wright as his intended murder victim. The following morning, Mr George left the training class conducted by Ms Hedges, without permission, at about 9.15 am. Shortly afterwards, he caused two messages to be delivered to Mr Wright via other persons attending the course, inviting Mr Wright to join him outside the class; on the second occasion "upstairs". Mr Wright ignored these invitations.
2. When Mr George had not returned to the class by 9.30 am, Ms Hedges went to look for him. She found him on level 4 wandering around on the roof balcony. Level 4 contained a recreation room leading out to a roof area which is "L"-shaped with a waist-high balcony edged by a metal railing. Mr George did not respond to Ms Hedges' questions about what he was doing or what was wrong. Ms Hedges described Mr George as completely incoherent. She formed the view that he may have been on drugs because he was staring and swaying, and she observed his pupils were "like pinpoints". Mr George asked, "Where's Glenn?" referring to Mr Wright. Ms Hedges waved her hand in front of Mr George's eyes but received no acknowledgement; he continued swaying. Ms Hedges became worried. She asked three other female employees who had entered (and, importantly, thereafter remained in) the recreation room on level 4 to watch Mr George on the balcony while she sought help.
3. Ms Hedges went to Mr Trevor Williams (Mr Williams), an Optus team leader, on the third floor. He described Ms Hedges as being quite distraught, shaking and crying. Ms Hedges gave Mr Williams an account of what had happened on the roof, including her view that Mr George was on drugs. His Honour found that Mr Williams formed the view, based on Ms Hedges' description, that Mr George presented a risk to the personal safety of others because he decided he needed assistance to deal with the situation on the roof, "obviously for my own safety, and basically to have someone else there": at [43]. Mr Williams sought that assistance from Mr Paul Dee (Mr Dee), another team leader on level 3, who the primary judge described as being fit and having a strong physique.
4. When Mr Williams, Mr Dee and Ms Hedges arrived on level 4 they found Mr George on the balcony pacing backwards and forwards with his head down. They approached Mr George on the balcony and Mr Williams tried to speak with him. Mr Williams' first impression was that Mr George was confused. Mr George refused the offer of tea or coffee and asked to speak to "Glenn". He remained unresponsive to other questions.
5. In his police statement, Mr Dee described Mr George as pacing furiously up and down near the railing of the outside balcony. He went over to Mr George because he was concerned about him. He described Mr George as fidgeting with his hands, seemingly jittery, avoiding eye contact and appearing to be in a trance-like state. Mr Dee followed Mr George's pacing on the balcony and every time he became close to him, Mr George would change direction. Mr George remained uncommunicative other than to say "I'm waiting for Glen, I want to see Glen" (sic).
6. In his oral evidence, Mr Dee identified the plan of level 4 that he had drawn for the police on the day of the incident. He also described the physical characteristics of Mr George - slight build, no taller than 5 foot 9 inches; Mr Wright - slightly taller, probably 6 foot, and broader and larger than Mr George; and himself - 5 foot 10 inches, and reasonably fit. Mr Dee was not cross-examined.
7. Mr Williams said that as Mr George paced up and down the balcony, Mr Dee and he placed themselves on either side and attempted to steer him away from the railing. Mr Williams was concerned that Mr George might attempt to hurt himself or jump off the roof. After they had walked with Mr George for some time, Mr Williams said that Mr George was "calm and quiet"; he "felt it was okay to leave them alone" and to go and inform the Optus call centre manager about the situation.
8. In cross-examination by counsel for Optus, Mr Williams (who was called in Mr Wright's case) adhered to his evidence in chief that when he left the roof Mr George was "very quiet, calm", apart from his pacing, which he found "unusual". Mr Williams said that after speaking with Mr George he did not think that he was going to jump or otherwise do himself harm. He also said that he did not have any fear for his own personal safety when speaking to Mr George because Mr Dee was there.
9. In cross-examination by counsel for IPA, Mr Williams agreed with Ms Hedges' assessment that Mr George might have been on drugs because he appeared to be "vacant". His efforts were directed to getting Mr George to come back inside the recreation room, as this would be safer if Mr George was on drugs. He reiterated that he tried to steer Mr George away from the balcony railing because he was concerned that he might "try and hurt himself, or jump off the roof". Although he felt it safe enough to leave the roof when he did, Mr Williams considered it necessary that someone should be there; and he left Mr Dee on the roof.
10. His Honour gave a number of reasons why he did not accept Mr Williams' evidence that Mr George appeared "very calm" on the roof balcony. One was that this description of Mr George was not included in Mr Williams' March 2001 police statement. Another was that it was inconsistent with the description of Mr George's behaviour given in Mr Williams' police statement, as well as with Mr Dee's description of Mr George (see at [115] above). In addition, Ms Hedges had said that when they returned to the balcony, Mr George was wandering aimlessly, mumbling something: at [46].
11. His Honour made the following findings in relation to Mr Williams' evidence (at [49]): I infer that what Mr Williams meant when he used the phrase "very calm" is that he was no longer concerned about the prospect of George jumping from the balcony. Probably, he felt reassured because George had not attacked him. But George was still behaving unusually and the situation still required management. I find that is why he decided to leave the roof to report to more senior management, to obtain guidance about what to do. Mr Williams was obviously correct in his assessment that George did not constitute a risk of self-harm. After all he had been on the roof for quite some time with periods during which he was unsupervised. Had he wanted to jump he had had every opportunity. Even so, the situation was unresolved. George continued to refuse to come in off the balcony and Mr Williams took the precaution of leaving the fit Mr Dee to keep an eye on things after satisfying himself that Mr Dee was comfortable in that role.
12. Before Mr Williams left the roof balcony, he had a conversation with Ms Hedges who told him that she believed, "Glenn" was Mr Wright. She asked whether she should bring Mr Wright up to the roof. Mr Williams assumed, wrongly, that Mr Wright must be a friend of Mr George; and that Mr Wright might have given him drugs. Mr Williams directed Ms Hedges to bring Mr Wright to the roof. In cross-examination, Mr Williams said that he felt the situation was one in which "hopefully" he could use Mr Wright "to get him inside"; this may be taken to be a reference to returning to the recreation room. As his Honour found (at [50]), Mr Williams acknowledged in his evidence that he "certainly wouldn't have sent for [Mr Wright]" but for his wrong assumption that he was a friend of Mr George; Mr Williams conceded that such an action "would have seemed quite strange".
13. Ms Hedges returned to the training room on the ground floor to locate Mr Wright. There was a dispute at trial as to whether Mr Wright was directed, in the sense of being ordered, by Ms Hedges to go to the roof to talk to Mr George immediately before the attack. Optus contended that Ms Hedges merely made a request, which Mr Wright was free to refuse. His Honour found that Ms Hedges wanted Mr Wright to accompany her to the roof and sought to obtain his cooperation by a degree of cajoling described in terms as "let's see what he wants and take it from there": at [58]. His Honour further found that Mr Wright succumbed to that cajoling although he would have preferred not to get involved. Further, given that Ms Hedges was in a supervisory position over him, Mr Wright felt a degree of compulsion in complying with her request. He did not volunteer to help. His Honour also found that it was reasonable for Mr Wright to comply with a request to assist made of him by persons Optus had placed over him, notwithstanding that it may have been open to him to refuse: at [59].
14. In cross-examination, Mr Wright said that he "didn't really take it there was any risk on the roof"; this was because he understood that Ms Hedges "had assessed the situation as safe for me to go and attend".
15. There was another dispute at trial as to what Ms Hedges said to Mr Wright before they arrived on level 4. Ms Hedges' police statement, which was tendered in evidence in Mr Wright's case, did not refer to any conversation between her and Mr Wright on the way to the roof. Mr Wright's police statement included a conversation with Ms Hedges in the elevator to level 4 in which she said "he's up on the roof, he's lost it and he's asking for you, is he on drugs?". Mr Wright responded "I've never met the guy before Monday, I don't know". In his further evidentiary statement dated 29 May 2013, Mr Wright gave evidence that Ms Hedges said to him in the elevator on the way to level 4: Nathaniel is up on the fourth floor and appears to be psychotic or on drugs. He is asking for you, do you know what this is about.
16. In cross-examination, Optus challenged Mr Wright's evidence that Ms Hedges used the word "psychotic" to describe Mr George. Mr Wright rejected the cross-examiner's suggestion that he had no recollection of what Ms Hedges said to him shortly before the incident on the roof. He conceded that he could not exactly recall the words used by Ms Hedges, but adhered to his evidence that Ms Hedges had mentioned that Mr George appeared to be psychotic or on drugs. He said that, after he told Ms Hedges that he did not know Mr George and therefore could not say whether he was on drugs, Ms Hedges said (words to the effect of): "Well, he must be psychotic or something."
17. His Honour did not make an express finding that Ms Hedges said to Mr Wright that Mr George "appears to be psychotic". It seems implicit, however, from his Honour's later reasons when dealing with what Optus knew or ought to have known with respect to the risk of harm, that he accepted Mr Wright's evidence that Ms Hedges described Mr George as appearing to be "psychotic or on drugs": at [118] and [127]. On appeal, Optus contends that this evidence of Mr Wright is unreliable.
18. When Ms Hedges and Mr Wright arrived on level 4, Mr Williams correctly assumed that Mr Wright was the person with Ms Hedges. His Honour found (at [60]) that Mr Williams thought that Mr George may have been under the influence of an illegal drug and continued to labour under his erroneous assumption that Mr Wright and Mr George were friends. Mr Williams asked Mr Wright whether he had "given [Mr George] anything". Mr Wright replied that he had not. Mr Williams returned to his desk on level 3 to notify senior Optus management as to the situation.
19. Mr Williams made several phone calls, one to a superior within Optus: Ms Cathy Taylor. He was directed to make a complaint to Drake and request that they send someone over to collect Mr George. Mr Williams telephoned Drake. Two female persons from Drake attended the Optus premises very soon after the attack on Mr Wright.
20. What happened next on the roof balcony is summarised in his Honour's reasons as follows: [62] There was no conversation between Mr Dee and Mr Wright. Nothing was said to Mr Wright about what Mr Williams or Mr Dee had in mind, if anything. He was simply left to his own devices. He approach (sic) George and asked "What's wrong?" Mr Wright says that George didn't reply and kept pacing. Mr Wright then said "If you want me to help you, you have to tell me what's wrong". He said that George started talking about the view and repeated himself "over and over" about it. Neither Ms Hedges nor Mr Dee could hear what was being said. Mr Dee heard George "grumble something" to Mr Wright. Initially Mr Dee was about 15 metres away from where George and Mr Wright were. He moved closer "so I could see because I was concerned about [George's] well-being". He said George started yelling at Mr Wright. He motioned to Mr Wright and said "are you ok?" Mr Wright said he was. Neither Ms Hedges nor Mr Wright mentioned that detail in their police statements. When asked about it in cross-examination, Mr Wright said "I don't remember that, but I can't say it didn't happen one hundred per cent". Mr Dee was not challenged about it; indeed he was not cross-examined at all. On the probabilities, I am prepared to accept that such an event occurred. [63] There is an issue about how far Mr Dee was from George and Mr Wright when George attacked. This issue arises out of the contents of Exhibit 1D4 at [5], which suggests that he had moved closer than 15 metres at that time. However, the sketch attached to his statement prepared in his own hand marks his position "when the scuffle broke out" with an asterisk. He writes, "About 15 metres away". The same document records that George and Mr Wright had moved down to the very extremity of the balcony at that time. I find that Mr Dee was maintaining a distance of 15 metres when George attacked Mr Wright. [64] On the evidence, George lured Mr Wright to the extremity of the balcony, away from the vicinity of the others. I accept Mr Wright's evidence contained in Exhibit A2 … that George invited Mr Wright to look over the railing at a car. At that time it occurred to him that George was intent on getting him to the edge of the building and he recalls instinctively putting his hands on the underside of the railing. George suddenly grabbed him and he felt George lift him upwards. He was shocked but held on tight. He did not know what was going on. George started to punch him. [65] This version is confirmed by Mr Dee who said he saw George attempt to pick Mr Wright up, crouching down and placing his arms underneath Mr Wright's arms and around his waist. He started to lift him off the ground. Mr Wright resisted and George started punching him. He made good contact with the left side of Mr Wright's face near his eye. Mr Dee rushed to intervene and was able to "reef" George away from Mr Wright. He bear-hugged George to restrain him. George struggled trying to break away, thrashing with his arms and legs and yelling "I'll kill him". Mr Dee was able to restrain George and get him inside the recreation room. [66] While Mr Dee was restraining George, Mr Wright, I infer from Ms Hedges's description, was cowering against the wall on the balcony holding his eye. Ms Hedges said to him "go, quickly" and he ran off. She saw that George "was still very aggressive" but Mr Dee managed to get him back inside. Mr Dee instructed her to shut all the doors which she did. On her account, George was a bit calmer but was still pacing around the room. She then went looking for Mr Wright and found him on the ground floor. She gave him an ice pack to treat his facial injury. She later took him to a nearby medical centre. After the consultation when walking back to the Optus building she noticed Mr Wright started to walk in an unusual manner, "as though his legs were a bit jelly like". She had to hold him to help him walk back to the premises. He went to the bathroom but when he emerged he collapsed, falling to the floor. It was necessary for her to get assistance from two people to help him to the "sick bay".
21. After Mr Dee told Mr Williams what had happened on the roof, Mr Williams contacted Ms Taylor again, and the decision was then made to call the police. Ms Taylor telephoned the police at 11.19 am and they arrived at Optus' premises at 11.34 am: at [99].

Expert medical evidence

1. Dr John Roberts, a psychiatrist, provided two written reports primarily directed to his assessment of the foreseeability of the behaviour exhibited by Mr George on the roof balcony giving rise to an assault of the kind that followed or some similar event. Optus relied upon Dr Roberts' opinion as corroborating, it was submitted, the observations of Mr Williams and Mr Dee as lay persons that there was nothing in Mr George's behaviour that led them to believe that Mr George might pose a risk of harm to anybody.
2. In his first report dated 29 October 2010, Dr Roberts expressed the following opinion: The concern arising from [Mr George's] behaviour on the roof, namely of him appearing drug affected occurred only moments before the attack … upon Mr Wright and even assuming that Mr George was drug affected to extrapolate from that circumstance that an attack would occur upon Mr Wright would not have been able to be an extrapolation made either by a lay or non-lay (psychiatrist psychologist), who observed such behaviour. I do not consider therefore it is on psychiatric grounds tenable to argue that Mr George's attack upon Mr Glenn Wright could have been foreseen or prevented.
3. In his second report dated 5 December 2010, Dr Roberts said that "Mr George's presentation was classical of a schizophrenic illness with command hallucinations and a delusional belief system". Dr Roberts thought that Mr George had sufficient cognitive function "to realise that he needed to conceal his thoughts and intent".
4. The primary judge admitted the reports of Dr Roberts over the objection of counsel for Mr Wright, who then cross-examined Dr Roberts. The following parts of Dr Roberts' oral evidence should be noted.
5. Dr Roberts described a psychotic person as one who is suffering from a condition that involves a substantial departure from reality. He agreed that a psychotic person may display the following traits: "[h]allucinating, delusional, might be paranoid, having feelings people are against them, hostile to them, misinterpreting casual events as having significance to them". Dr Roberts said that a psychotic person "feels people are hostile towards them and then in turn … may be hostile towards others".
6. Dr Roberts accepted that, in lay terms, the word "psychotic" is synonymous with disturbed behaviour. He agreed that disturbed behaviour causes apprehension in bystanders and that the type of behaviour exhibited by Mr George may induce in others "an apprehension or a feeling of violence or concern for safety". He accepted that such an apprehension, or fear or concern may result from the combined effect of a person believing that another was on drugs and believing that drugs are often associated with violence.
7. Dr Roberts agreed that it was well-known that a victim of a violent attack will often suffer a psychiatric response to the attack. He proffered the view that one in three such persons would suffer post-traumatic stress disorder. He also agreed it is well-known that people who witness other people kill themselves suffer a psychiatric response.
8. Dr Roberts accepted that Mr George had manifested abnormal behaviour at least by the time Ms Hedges reported the incident (on the roof balcony) to Mr Williams. He agreed that Mr George's behaviour could be described interchangeably as "inappropriate", "abnormal" and "disturbed".
9. His Honour found that some of Dr Robert's opinions were not relevant: at [99]. In particular, Dr Roberts' evidence directed to assessing the predictability of the attack by Mr George was not relevant because his opinions were based on what actually occurred taking into account the benefit of hindsight and a greater range of surrounding facts than were available to the relevant Optus staff on the day of the attack: at [104].
10. Nonetheless, his Honour accepted (at [104]) that Dr Roberts' opinion about aberrant behaviour giving rise to an apprehension of violence in bystanders had some relevance, although he considered that those opinions accorded with the general experience of life. In addition, his Honour considered that Dr Roberts' opinion about the incidence of mental harm following a violent attack was relevant.

The pleadings

1. The pleading in the amended statement of claim asserted that Mr Wright's injuries were caused by the negligence of, relevantly, Optus and/or by the negligence of Ms Hedges for whom Optus was vicariously liable.
2. Extensive particulars of negligence by Optus were given, including: 12.1 Failed to exercise reasonable care for the safety of the plaintiff. … 12.5 Failed to direct its employees that in no circumstances were they to involve inexperienced and untrained recruits in responding to situations such as that which occurred on 15 March 2001. 12.6 Failed to direct its employees that they were not to attempt to handle incidents such as that which developed on 15 March 2001 themselves, but to call Security and/or police. … 12.9 Failed to direct its employees that under no circumstances were they to involve young, inexperienced trainees in inherently risky and highly specialised negotiations with erratic and potentially dangerous persons.
3. The particulars of negligence by Ms Hedges, for whom Optus was said to be vicariously liable, were also extensive and included: 13.1 Failed to exercise reasonable care for the safety of the plaintiff. … 13.3 Directed the plaintiff to go onto the balcony of level 4 into what was obviously a dangerous and potentially life-threatening situation. … 13.6 Failed to call in Security. 13.7 Failed to call in police. 13.8 Failed to wait until Security and/or police arrived before attempting, through the plaintiff, to negotiate with and pacify Mr George.
4. In its defence, Optus denied the allegation of negligence and pleaded, in the alternative, contributory negligence on the part of Mr Wright. Optus did not affirmatively plead that it was not vicariously liable for the conduct of Mr Williams or Mr Dee.

The case at trial

1. At trial, Optus argued that it owed no relevant duty of care to Mr Wright except the duty owed by an occupier to a lawful entrant. Optus relied on Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) for the proposition stated by Gleeson CJ at ([20]) that it is exceptional to find in law a duty to control another's actions to prevent harm to strangers. In Modbury, the High Court held that a shopping centre owner owed no duty to take reasonable care to prevent third parties on its land causing physical injury to employees of tenants in circumstances where it had failed to leave the car park lights on. The criminal conduct of the third parties who had assaulted the employee in the car park was random and unpredictable. Gleeson CJ noted (at [29]) that the control and knowledge which form the basis of an occupier's liability in relation to the physical state or condition of the land are absent when considering the possibility of criminal behaviour on the land by a stranger.
2. Alternatively, Optus argued that if it owed Mr Wright a duty to take reasonable care to protect him from the criminal actions of Mr George, then Mr Wright must, in addition, satisfy the requirements of s 32 of the Civil Liability Act 2002 (NSW) (Civil Liability Act). Section 32(1) provides that a defendant does not owe a duty of care to another person to take care not to cause the person 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". Optus argued that those requirements were not satisfied because after Mr Williams and Mr Dee had an opportunity to observe and interact with Mr George on the roof balcony, neither of them regarded Mr George as posing a physical threat to anyone, including himself.
3. Assuming the existence of a relevant duty of care, Optus identified the relevant "risk of harm" for the purposes of s 5B of the Civil Liability Act as the risk of Mr George throwing (or attempting to throw) Mr Wright from the fourth floor of the Optus building. Optus argued that it was not negligent because (a) the "risk of harm" was not reasonably foreseeable (s 5B(1)(a)); (b) the probability of the risk of harm eventuating was so low it could not be regarded as being "not insignificant" (s 5B(1)(b)); and (c) the conduct of Ms Hedges, Mr Williams and Mr Dee was an appropriate response to the circumstances with which they were presented (s 5B(1)(c)).
4. Optus also argued that causation under s 5D(1) of the Civil Liability Act was not established because, among other things, the "but for" test was not satisfied. Optus contended that if Mr George had not succeeded in getting Mr Wright to the roof balcony on the morning of 15 March 2001, he would have been able to do so at some other time on that day or some other day with a view to attempting to murder him.
5. Alternatively, Optus argued that Mr Wright was guilty of contributory negligence because he volunteered to try and help and he could equally have seen and appreciated that there was a real and not insignificant risk that Mr George would attack him.
6. The primary judge rejected each of these contentions by Optus. In the summary of his Honour's reasons that follows, it is unnecessary to refer to the reasons on causation or contributory negligence. As to causation, Optus abandoned its challenge to this finding at the hearing of the appeal. As to contributory negligence, Optus did not challenge this finding on appeal.

Duty of care

1. His Honour rejected Optus' contention that it owed no duty to Mr Wright other than that owed by an occupier to a lawful entrant. Reference was made to the exceptional cases mentioned in Modbury (see also Ashrafi PersianTrading Co Pty Ltd (t/as Roslyn Gardens Motor Inn) v Ashrafinia (2002) Aust Torts Rep 81-636; [2001] NSWCA 243 at [64] (Heydon JA)), where a duty has been imposed to take reasonable care to protect employees from the criminal conduct of third parties where the employer had the power to assert legal or practical control over the third party either on premises occupied by the employer or in other places where the employee is carrying out duties for the employer.
2. His Honour found that the relationship between Optus and Mr Wright was analogous to that of employer and employee, relying on TNT (Australia) Pty Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 (TNT v Christie). The salient features of the relationship in the present case (set out at [74]) were that: 1. Optus exercised day-to-day control over Mr Wright's work activities; 2. Optus' operations at its Gordon site included the need to coordinate employees of more than one "temp agency", as well as its own employees; and 3. Optus had the power to assert control over Mr George.
3. His Honour concluded (at [77]) that Optus owed Mr Wright a duty of care in the following terms: Subject to the following two points, Optus owed Mr Wright a duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding him from unreasonable risks in the methods by which the work was to be undertaken, extending to taking reasonable care to protect him from the criminal acts of others in the workplace. (Emphasis added) As will be seen, Optus took exception to the italicised words in that statement of the duty.
4. His Honour continued (at [77]), identifying the content of the duty of care as follows: In the specific circumstances which arose on 15 March 2001 that duty involved the exercise of reasonable care in devising and instituting a system for managing the aberrant behaviour of [Mr] George so as to safeguard Mr Wright, and other persons on the premises to perform work, from any foreseeable, not insignificant risk that [Mr] George may assault him.
5. The first of the "two points" referred to by his Honour (at [77]) related to the circumstance that Mr Wright and Mr George were not employees of Optus, but were employed by labour-hire companies who supplied their services to Optus. His Honour reasoned that the duty of care owed by Optus to Mr Wright, as an employee of an independent contractor, arose from the need for Optus to co-ordinate the interactions of those contractors on its premises and to protect one from another: at [78].
6. The second point referred to by his Honour related to the application of Pt 3 of the Civil Liability Act, in particular that s 32 governed the duty of care owed to another person not to cause that person mental harm: at [80].

Foreseeability - mental harm

1. Turning to the issues raised by s 32 of the Civil Liability Act, his Honour found that Mr Wright was suffering from a recognised psychiatric illness, namely post-traumatic stress disorder; that this was not consequential on his physical injuries; and accordingly the case was one of "pure mental harm, being an independent injury arising out of the fear for his life": at [83].
2. After noting that Mr Wright bore the onus of proof to satisfy the statutory condition in s 32(1) (at [85]), and that the question of reasonable foreseeability in s 32(1) must be decided without the benefit of hindsight (at [87]), his Honour concluded (at [88]) that Optus ought to have foreseen in the circumstances pertaining on the roof that Mr George may assault Mr Wright when he was brought to him, and that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken. It is appropriate to set out his Honour's reasons (at [88]) in full: Having said that, the approach urged by Optus is flawed in my judgment because it fails to focus upon the circumstances of the events which unfolded on the roof, all of which were within the direct knowledge of Optus. Moreover, the pre-existing relationship between Optus and Mr Wright itself gave rise to a duty of care; it was analogous to the employment relationship which is an established category of duty covering mental harm, where such harm is reasonably foreseeable: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383. Assuming that it was foreseeable in the circumstances pertaining on the roof that [Mr] George may assault Mr Wright when he was brought to him, a question I will consider in detail when dealing with breach, I am satisfied that the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken. In arriving at this conclusion I have taken into account the evidence of Ms Hedges of her observations of Mr Wright following [Mr] George's attack. These observations, it seems to me, eloquently bespeak "sudden shock". The medical evidence to which I have referred shows that the mental harm suffered by Mr Wright resulted from that sudden shock. In saying so I am not eliding impermissibly into hindsight reasoning; rather I am applying the criteria fixed by s 32(2) to answer the question posed by s 32(1).

Section 5B - negligence

1. His Honour observed (at [91] and [117]) that the risk of harm for the purposes of s 5B of the Civil Liability Act needed to be identified at the appropriate level of abstraction or particularity. He rejected Optus' approach of identifying the risk of harm in a general way as being a risk of harm from the criminal conduct of third parties. Instead, his Honour identified the risk of harm as the risk of Mr George inflicting personal injury on Mr Wright, including mental harm, in the circumstances actually known to Optus employees before Mr Wright was requested to attend the roof on 15 March 2001. Later (at [117]) he described the risk as that Mr George behaving aberrantly, as he was, may inflict personal injury on Mr Wright, extending to the impairment of his physical or mental condition.
2. His Honour applied s 5B and concluded that the risk of harm to Mr Wright was foreseeable (at [119]), referring to, the well-known passage in Shaw v Thomas (2010) Aust Torts Reps 82-065; [2010] NSWCA 169 at [44]. The matters which were material to that conclusion were: (1) that Mr Wright was an ascertained person in whom Mr George had expressed interest whilst in the grip of his aberrant behaviour: at [111]; (2) that at the time when Mr Williams and Ms Hedges had a conversation about who "Glenn" was, bearing in mind all they knew about Mr George's aberrant behaviour, Mr Williams was still in the process of working through how the situation had to be dealt with: at [112]; (3) the actual knowledge possessed by Optus' employees, relevantly Ms Hedges and Mr Williams, was (at [118]): …that [Mr] George had absented himself from his training room where he was supposed to be; taken himself to the roof where he was not supposed to be at that time; was behaving in an aberrant manner, pacing and acting, in lay terms, as though he was psychotic or on drugs; he was non responsive to most questions; he refused to follow directions to leave the roof and return to class; his behaviour was such as to cause distress in Ms Hedges and cause a mature person like Mr Williams, at least, initially, to fear for [Mr] George's safety and his own; his aberrant behaviour created an appreciation that something had to be done to deal with it, that is bring it to an end; that even when Mr Williams was somewhat reassured that [Mr] George had not jumped from the roof or threatened him personally he considered it necessary to leave the fit Mr Dee to keep an eye on him whilst Mr Williams continued to make inquiries; that from the time his absence from class was first noticed up until the time Mr Williams decided to leave the roof to continue his inquiries he was repeatedly asking for Mr Wright; Mr Wright said to Ms Hedges, and would have told Mr Williams had he asked, that he did not really know [Mr] George and was not his friend; ordinary people placed in their situation would have an apprehension that a psychotic person or a person so drugged as to behave as [Mr] George was behaving posed a risk of harm to the personal security of himself and others. This last point is consistent with common experience, and for what it is worth, with the evidence of Dr Roberts I have accepted. Clearly, Mr Williams continued to have such an apprehension.
3. His Honour found that the risk of Mr George harming Mr Wright was not insignificant: at [122]. Whilst he accepted that Mr Williams must have regarded the prospect of Mr George harming Mr Wright as unlikely, his Honour found that Mr Williams still regarded the situation as one requiring him to take precautions against harm occurring: at [121]. His Honour rejected Optus' argument that Mr Williams was satisfied on reasonable grounds that Mr George posed no risk to anyone: at [121].
4. His Honour found that a reasonable person in the position of Optus would have taken the precautions of removing Mr George from the premises and not putting Mr Wright in harm's way by exposing him to Mr George's aberrant behaviour (at [127]). The matters which were material to that conclusion were: (1) that Mr George had refused to return to class, to come back inside the recreation room on the roof away from the edge of the balcony, and to provide any explanation for his abnormal behaviour. He was on the roof without permission, and disobeying the reasonable directions and instructions given by the persons Optus had placed over him: at [124]; (2) whilst the probability of harm was not high, the likely seriousness of the harm was high because Mr George was on the roof: at [125]; (3) the burden of having Mr George removed from the premises and, in the meantime, not allowing other workers to approach him, was slight. It involved no expense to Optus and no more than a phone call to Drake, and, if Mr George refused to comply with the directions given to him by Drake employees, a phone call to the police to have him removed from the premises: at [125].
5. His Honour found that the activity that created a risk of harm was "permitting, allowing, authorising and encouraging a worker, Mr Wright, to put himself in close physical proximity to George while steps were being taken to have him removed from the premises": at [126].
6. His Honour concluded that Optus breached its duty by not taking reasonable precautions to ensure that Mr Wright was not permitted to go near Mr George on the roof and by not calling the police. His Honour gave the following reasons (at [127]): The precaution that reasonable care required in the present case was really a combination of both remaining factors. That is to say, [Mr] George should have been removed from the premises, and until that was done no one, and especially not Mr Wright, the person for whom he had been asking, the only person in whom he expressed an interest, should have been permitted to go near him whilst he remained in a place of possible danger on the roof. There is no evidence that Optus had any security personnel on site who could have been called upon to remove [Mr] George from the premises promptly. Probably, had that option been available it would have been taken, especially given Mr Williams' apprehension. In the absence of security, consideration should have been given to calling the police given the aberrant behaviour. This is a matter of common sense. This is what most people would do confronted by a person on their premises behaving as though psychotic or severely affected by drugs. Treating [Mr] George as Drake's problem is understandable, but it really only passed the buck given that [Mr] George was unresponsive to directions given to him by Ms Hedges and Mr Williams. In my judgment the police should have been called before [Mr] George's attempt on Mr Wright's life. And, in the meantime, no person, as I have said, especially not Mr Wright should have been allowed to go near him. But he should have been watched from a safe distance as Mr Dee was doing at Mr William's [sic] request. These conclusions again accord not only with common sense but also with the opinions of the ergonomists.

(a) Notice of appeal

1. The first and major issue on the appeal is whether Optus owed any relevant duty of care to Mr Wright (Ground 1). Optus accepted that it owed Mr Wright "some" kind of duty of care, but submitted that there were no "special circumstances" in the present case which might give rise to a duty to take reasonable care to avoid foreseeable risk of injury to Mr Wright from the criminal conduct of a third party.
2. Optus also contended that the scope of any duty of care it owed to Mr Wright did not include a duty to take reasonable care not to cause Mr Wright mental harm, because the foreseeability requirement in s 32 of the Civil Liability Act was not satisfied (Ground 2). This ground involved a challenge to his Honour's finding that Mr George's conduct suggested that he was dangerous. Optus contended that the better view of Mr George's conduct is that he looked to be a risk to himself, not others.
3. Next, Optus challenged his Honour's finding that Optus breached the duty it owed to Mr Wright (Ground 3). Optus contended that his Honour erred in his application of s 5B of the Civil Liability Act in finding that the events on the roof balcony were reasonably foreseeable (Ground 6), and erred in finding that the reasonable response to the risk of harm would have been to remove Mr George from the premises, and in the meantime, not allow other workers to approach him (Ground 5).
4. In addition to the above grounds, Optus contended that his Honour erred in finding (if he did) that Optus should or could be made liable for any negligence on the part of Mr Williams or Ms Hedges (Ground 7). This ground raised the issue of whether Optus was vicariously liable for their conduct and whether this contention had been sufficiently raised at trial with respect to Mr Williams' conduct.
5. As already mentioned, Optus did not press its challenge to his Honour's finding that Optus' negligence caused Mr Wright's injury (Ground 4).
6. With respect to damages, there is no dispute that Mr Wright suffered physical injury from the blows to his head inflicted during the assault and that he subsequently developed a post-traumatic stress disorder due to the attempt on his life. Nonetheless, Optus challenged his Honour's assessment under five of the heads of damage: non-economic loss; future care; future medical treatment; future economic loss; and fund management (Ground 8).

(b) Notice of contention

1. By his notice of contention, Mr Wright sought to uphold the findings on liability on three grounds.
2. The first was that his Honour should have had regard to the expert evidence in finding that Optus breached its duty of care. This was a reference to (a) the opinion of Dr Roberts directed to the question of whether it was reasonably foreseeable that Mr George's presentation on the roof balcony gave rise to the risk of harm to Mr Wright of not merely a physical injury, but a psychiatric illness; and (b) the opinions of Occupational Health & Safety experts (Dr Caponecchia and Ms Armour) concerning the reasonable precautions that a person in Optus' position would have taken to deal with Mr George.
3. The second ground was that his Honour should have found that the conversation between Ms Hedges and Mr Wright in the training room on the ground floor constituted a direction that he attend the fourth floor.
4. The third ground was that his Honour erred in finding, if he did so find, that Mr Wright could not succeed against Optus on the basis of vicarious liability.

A. Resolution of challenge to factual finding

1. It is convenient first to address the challenge by Optus to his Honour's finding that Mr George's presentation did alert, or should have alerted, Optus employees to the fact that he was dangerous - that is, that someone coming within proximity of Mr George on the roof balcony was at risk of injury by Mr George. This finding was central to his Honour's conclusion that Optus was subject to a relevant duty of care to avoid foreseeable risk of injury to Mr Wright from the conduct of Mr George.

Submissions

1. Whilst Optus accepted that Mr George's presentation on the roof was suicidal, Optus submitted that the risk of harm to Mr George had passed by the time Mr Williams left the roof balcony to report to his superiors. Optus challenged his Honour's description of Mr George as behaving "as though he was psychotic or severely affected by drugs". This finding, it was submitted, was not open: it was argued that it overstated the facts, and ignored the evidence regarding the presentation of Mr George at the time of the incident. Optus relied upon the following matters.
2. First, that neither Ms Hedges nor Mr Wright used the word "psychotic" to describe Mr George in their March 2001 police statements. While Optus acknowledged that Ms Hedges had said in her police statement that she thought Mr George might have been on drugs, Optus submitted that Mr Wright's evidence that Ms Hedges said to him that Mr George "appears to be psychotic" was unreliable because this evidence was first given in his May 2013 witness statement, more than 12 years after the incident.
3. Next, Optus referred to the evidence and conduct of Mr Williams, Mr Dee and Ms Hedges on the roof balcony, which it submitted, strongly supported the view that Mr George's conduct did not suggest that he was dangerous to others. In particular, Optus: 1. complains that his Honour did not refer to Mr Williams' oral evidence in chief that Mr George was "very calm" and "very quiet" when he left the roof to return to his office on level 3; 2. submitted that it was apparent that Mr Dee could not see any risk to his personal safety on the roof since he had approached Mr George closely; 3. emphasised that Ms Hedges did not say in her police statement that she thought Mr George was dangerous; and 4. also complains that his Honour did not refer to Ms Hedges' evidence that she had asked other Optus employees (to whom she referred as "the girls") to stay with Mr George on the roof while she consulted her team leaders; the inference, it was submitted, was that Ms Hedges thought it was safe enough to leave them there.
4. Finally, Optus referred to the evidence which Mr Wright gave in cross-examination that when he went to the roof and approached Mr George he did not consider there was any risk, and he was not consciously concerned for his own safety.

Decision - Optus should have known that Mr George was dangerous

1. The debate centred on whether Mr George's behaviour on the roof balcony appeared to be a risk only to himself, not others. Accepting that Mr George's presentation was suicidal, the question which arises is whether he was behaving in a manner which alerted, or should have alerted the Optus employees, that he also posed a danger to persons coming within proximity of him on the roof balcony?
2. The risk of harm associated with a person appearing to be affected by drugs and presenting as suicidal (as Optus accepted Mr George appeared to be on the roof) is not exclusive to that person; it may extend to others within their proximity. The risk of harm to others may be heightened by the circumstances in which such a person is found; for example, a potentially dangerous location, such as a bridge, or a train platform, or as here, the roof balcony of a multi-storey building. That the Optus employees were concerned that Mr George may be suicidal did not preclude the finding by his Honour that his aberrant behaviour on the roof, pacing backwards and forwards near the balcony railing, refusing to return to the recreation room and indicating an interest in only one person (Mr Wright), ought to have alerted Optus' employees that he presented a risk of harm to others as well as himself.
3. As already indicated, when Ms Hedges first went to the roof, she observed that Mr George "appeared completely incoherent", his pupils looked like "pin points", and she thought he may have been on drugs. Dr Roberts agreed that Mr George had manifested "abnormal behaviour" on the roof, at least by the time Ms Hedges reported the incident to Mr Williams. He accepted that such behaviour may induce in others "an apprehension or feeling of violence or concern for safety". When she returned to the roof balcony, Ms Hedges again observed Mr George's aberrant behaviour, wandering aimlessly, mumbling something. Mr Dee similarly described Mr George on the roof balcony as being in a "trance-like state".
4. Mr Williams' description of Mr George when he left the roof as being "very calm'' was not contemporaneous - it was first given 12 years after the incident. This was a matter of considerable significance, in assessing the reliability of this evidence, as his Honour correctly observed. This evidence was also at odds with other parts of Mr Williams' evidence. He accepted that he thought it was possible that Mr George was on drugs because he was "vacant". He had observed that Mr George was unresponsive to questions. He had been unable to convince Mr George to return to the recreation room. He acknowledged that Mr George's continued "pacing" on the roof was "unusual". His Honour was entitled to reject this part of Mr Williams' evidence for the reasons that he gave: see [120]-[121] above.
5. That Ms Hedges had earlier asked three of the "girls" in the recreation room on level 4 to watch Mr George (within the confines of the safety of the glass walls of the recreation room) while she went to get some help, is not to be taken as an indication that she did not think that Mr George posed a risk to others. Not being able to get Mr George to return to the recreation room, Ms Hedges was "starting to get really worried" about him. That is why she asked the "girls" in the recreation room to watch him because she thought he "might do something strange".
6. That Mr Dee was not cross-examined as to whether he had any concerns for his safety, or that of others, is not determinative of whether the Optus employees should have appreciated the risk that Mr George was dangerous to others. It is to be recalled that Mr Dee was a strong and fit man; he was undoubtedly capable of defending himself and restraining Mr George (as he later did) if the need arose. This was one of the reasons why Mr Williams had requested Mr Dee to accompany him to the roof to investigate the situation.
7. Accepting that Mr Dee's concern seems to have been directed only to the possibility of Mr George harming himself, does not exclude the "safety issue" which Mr Williams acknowledged arose in dealing with Mr George on the roof balcony. On that topic, Mr Williams, gave the following evidence in cross-examination: A: Well my own safety, I mean if someone approaches you saying somebody's on drugs, you know, I'm no hero. Q: I'm just trying to find out what you were thinking. Did you think it was a good precaution for two people to be there? A: Yes I did. Q: Just in case he had to be restrained? A: Yes. …
8. Consistently with the safety concern he held, Mr Williams had waited for Mr Dee, from whom he sought additional assistance, before he went to the roof. Understandably, Mr Williams did not wish to approach Mr George alone; a person who was behaving irrationally, whom he had been told appeared to be on drugs and who had refused reasonable directions and requests by Ms Hedges to return inside to the recreation room on the roof. Mr Williams contemplated the possibility of Mr George going over the edge of the balcony; he said in his police statement that he and Mr Dee tried to steer Mr George away from the railing. In his oral evidence, Mr Williams acknowledged that this was because he thought Mr George might have jumped off the roof. Mr Williams contemplated the possibility that Mr George, who he had been told was on drugs, posed a risk to Mr Williams' own safety because he might need to be restrained on the roof balcony. That is, he appreciated that Mr George presented a risk of harm to persons coming within his proximity on the roof balcony, in particular its waist-high railing over which he foresaw a person (Mr George) might pass.
9. It was open to his Honour to infer, as he did, that when Mr Williams used the phrase "very calm" in his oral evidence, he meant that he was no longer concerned about the prospect of Mr George immediately jumping from the balcony. However, it does not follow that such risk had dissipated completely, or that Mr George no longer posed a risk of danger to others. Importantly, Mr George continued his pacing on the balcony, he refused to return to the recreation room, he remained unresponsive and in a trance-like state. Consistently with his Honour's finding as to what Optus ought to have appreciated, Mr Williams still thought it necessary for someone to watch Mr George on the roof balcony in his absence; and he left Mr Dee on the roof for that purpose.
10. It can be accepted, as Optus submitted, that the absence of reference in Mr Wright's March 2001 police statement to Ms Hedges having used the word "psychotic" is relevant when assessing the reliability of his later evidence. It is well accepted that the actual recollections of a witness as to what occurred may fade over time and may be replaced by unconscious reconstructions: Graham v R (1998) 157 ALR 404; [1998] HCA 61, 409. Similarly in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) McLelland CJ in Eq emphasised the fallibility of human memory, for a variety of reasons, as to what was said in an earlier conversation. As his Honour observed (at 319): "….ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said".
11. It should not be thought however that the primary judge overlooked such matters when assessing the reliability of Mr Wright's evidence. Mr Wright's contemporaneous police statement referred to Ms Hedges' observation concerning Mr George that "he's lost it … is he on drugs?"; the phrase "lost it" being used in the same part of Ms Hedges' description of Mr George as where, in Mr Wright's later statement, he said that the word "psychotic" was used. On both versions, Ms Hedges conveyed to Mr Wright that Mr George appeared to be on drugs and to have lost his senses or connection with reality. When challenged in cross-examination on the omission of the word "psychotic" from his police statement, Mr Wright explained that he was still in shock at the time he gave that statement (four days after the incident). He added that he had re-lived the incident many times and "[i]t is still tattooed on my brain". The primary judge may be taken to have accepted this explanation for the omission of the word "psychotic" in Mr Wright's police statement.
12. For a layperson, such as Ms Hedges, to have described Mr George's behaviour on the roof balcony as appearing to be "psychotic or on drugs" or "psychotic or something" is, in my view, unexceptional. Ms Hedges was not using the expression "psychotic" in any formal medical sense. Viewed in the context of her conversation with Mr Wright on the way to the roof, Ms Hedges can be taken to be attempting to ascribe a reason - be it drugs or a psychosis - for the unexplained disturbed behaviour of Mr George on the roof balcony.
13. Optus emphasised that Ms Hedges' police statement, which was tendered in evidence by Mr Wright, did not include any reference to the conversation between Ms Hedges and Mr Wright on the way to the roof. Having regard to the particular purpose for which that statement was obtained by the police, nothing flows from that omission. Optus did not seek to call evidence from Ms Hedges with a view to eliciting evidence to contradict Mr Wright's evidence on this topic. The primary judge, having listened to the evidence, was best-placed to determine Mr Wright's reliability. I reject Optus' challenge to his Honour's acceptance of this part of Mr Wright's evidence.
14. That, however, is not the end of the matter. Optus correctly points out that it was not put to either Mr Williams or Mr Dee at trial that Ms Hedges told them of her view (assuming acceptance of Mr Wright's evidence) that Mr George appeared to be "psychotic". That the evidence does not establish that Ms Hedges expressed this view to either Mr Williams or Mr Dee must be accepted. However, it is necessary to recall the differential terms of his Honour's finding, which is challenged by Optus. His Honour found that Optus knew, or ought to have known, through the actual knowledge possessed by its employees, relevantly Ms Hedges, Mr Williams and Mr Dee, that Mr George was behaving in an aberrant manner, pacing and acting, in lay terms, as though he was psychotic or on drugs: at [118]. The critical aspect of this finding was Mr George's disturbed behaviour near the balcony railing; this was observed by all of the Optus employees.
15. It does not assist Optus that only Ms Hedges ascribed this behaviour to the possibility of a psychosis or drugs; all of the Optus employees believed that Mr George may have been affected by drugs and Mr Williams and Mr Dee, like Ms Hedges, observed the disturbed behaviour of Mr George on the roof balcony. Having respectively described him as "vacant", "unresponsive", and in a "trance-like state", the Optus employees knew or ought to have known that Mr George appeared to have lost his senses or connection with reality. Thus his Honour's finding is supported.
16. Contrary to Optus' submissions, that Mr Wright approached Mr George on the roof balcony is not indicative of the absence of an apparent risk to others. Mr Wright said in his police statement that "at this time, [he] assumed Nathaniel had a problem that he wanted to talk to [him] about". He gave evidence that he understood Ms Hedges' request as an "instruction to give my help". He also said, as indicated above, that "[he] didn't really take it there was any risk. [He] was under the impression that [Ms Hedges] had assessed the situation as safe for [him] to go and attend … it was [his] subconscious that made me take hold of the railing as [he] did", when he lent over the railing to look at the car below. It was implicit in Mr Williams' sanction of approaching Mr George that it was safe for Mr Wright to do so. That, as the primary judge found, Mr Wright felt compelled to co-operate with Ms Hedges' request provided sufficient reason for him to approach Mr George to find out what was wrong, regardless of perception of risk and his own preferences.
17. As to the reliance placed by Optus on Mr Wright's lack of conscious feeling of risk, Mr Wright's state of knowledge cannot be compared to that of Optus: Mr Wright had only just arrived at level 4. He lacked the greater knowledge of the situation on the roof balcony which each of Mr Williams, Mr Dee and Ms Hedges had. He lacked knowledge of their responses of concern for personal safety. He was unaware that Mr Williams had only approached Mr George when accompanied by Mr Dee. He was also unaware that Mr Williams had asked Mr Wright to assist on the basis of his incorrect assumption that Mr Wright was a friend of Mr George. Further and importantly, he was unaware of the decision taken by Mr Williams on instructions from Ms Taylor (soon after he left the roof) to remove Mr George from the premises. No inference should be drawn from Mr Wright's approaching Mr George on the roof balcony that there was no apparent risk in doing so.
18. The challenge to his Honour's factual finding should be rejected.

B. Duty of care

1. Optus made multiple submissions challenging his Honour's finding as to the duty of care which Optus owed to Mr Wright and its content. It is convenient to commence with the issue of foreseeability of mental harm.

Submissions

1. Optus complained that his Honour did not address the condition in s 32 of the Civil Liability Act as a preliminary issue before finding that a duty of care existed. This was said to be an error. Optus next submitted, as it had at trial, that psychiatric injury was not reasonably foreseeable in the present case and, accordingly, Optus did not owe a duty of care to Mr Wright insofar as he suffered mental harm.
2. Optus also submitted that his Honour's finding that a psychiatric injury was reasonably foreseeable was a product of hindsight and that it is fanciful to imagine that anyone at Optus could have had such an outcome in mind.

Legal Principles

1. Section 32, which is contained in Pt 3 headed "Mental Harm" of the Civil Liability Act, provides: (1) A person (the defendant) does not owe a duty of care to another person (the 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. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.
2. Part 3 of the Civil Liability Act was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Sch 1, Pt 5, after the incident giving rise to the injury to Mr Wright. Nonetheless, those amendments extended to civil liability arising before their commencement, in proceedings commenced thereafter: Schedule 1, Part 3, cl 6(1) Civil Liability Act. The present case was commenced in 2009, accordingly, s 32 applied.
3. Section 27 of the Civil Liability Act provides a number of relevant definitions for the purposes of Pt 3. "Mental harm" means impairment of a person's mental condition. "Pure mental harm", as referred to in s 32(2), means mental harm other than consequential mental harm. "Consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind. "Personal injury" relevantly includes impairment of a person's physical or mental condition.
4. The operation of s 32 and the extent to which it reflected the common law in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 (Tame), was discussed by the High Court in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 (Wicks) at [16]-[30], and again in King v Philcox (2015) 320 ALR 398; [2015] HCA 19 at [75]-[85], in relation to s 33 of the Civil Liability Act 1936 (SA). Surprisingly, the parties did not refer to Wicks either at trial or in this Court. The following propositions, which can be taken from Wicks, have relevance to the present case.
5. First, s 32 defines or controls what otherwise would be a duty of care arising out of the common law for damages for mental harm resulting from negligence. The provision is cast negatively. The statutory condition for the establishment of a duty of care identified by s 32(1) is 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: Wicks at [22].
6. Secondly, whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be determined with regard to "the circumstances of the case". Some such kinds of circumstance are identified in s 32(2), but s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances: Wicks at [23].
7. Thirdly, s 32 is to be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by the High Court in Tame. Consistent with Tame, s 32 assumes that foreseeability is the central determinant of the existence of any duty of care. Further, and consistent with Tame, circumstances of a "shocking event" and the existence and nature of any connection between perpetrator and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care: Wicks at [26].
8. As Gleeson CJ observed in Tame at [35], the existence of a "sudden shock" is a relevant factual indicator of the presence or absence of the proximity of a relationship between the plaintiff and the defendant. As Gaudron J further noted in Tame (at [66]), under the general law, in many cases, the risk of psychological or psychiatric injury will not be foreseeable in the absence of a sudden shock. Similarly, the Court held in Wicks that "sudden shock", as used in s 32(2)(a), is no more than one of several circumstances that bear upon whether a 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": Wicks at [27].
9. Fourthly and importantly, the focus of s 32 is "mental harm" and "a recognised psychiatric illness", not "mental or nervous shock" (as used in both ss 29 and 30 of the Civil Liability Act): Wicks at [29]. The expression "sudden shock" in s 32(2)(a) may be understood as referring to an event or a cause. This is different to "mental or nervous shock" which refers to a consequence: Wicks at [30]. The Court emphasised (at [30]) that the notion of "shock" was central to both expressions, and referred to the following dictionary definition of "shock": … the sense of a "sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion ([occasionally] joy), and tending to occasion lasting depression or loss of composure": Oxford Dictionary, 2nd ed (1989), vol xv at 293, meaning 4a.
10. Fifthly, the question of foreseeability must be judged before the relevant incident happened: Wicks at [33].

Decision - Optus ought to have foreseen that Mr Wright might suffer mental harm

1. The first matter to be addressed is the criticism by Optus concerning the order in which his Honour approached the issues of foreseeability of mental harm and the question of duty of care. This criticism is unfair. His Honour dealt with the arguments in the order which reflected the structure of Optus' submissions at trial. Further, the order of his Honour's reasons had no influence on the ultimate finding that a duty of care not to cause mental harm existed. In keeping with s 32, his Honour correctly recognised (at [81]) when addressing the duty of care issue, that the additional condition in s 32 must be satisfied by a plaintiff to establish the existence of a duty of care "not to cause the plaintiff mental harm".
2. The substantive complaint by Optus, that his Honour applied impermissible hindsight reasoning in finding that mental harm was reasonably foreseeable, ignored that his Honour made findings in relation to the circumstances referred to in s 32(2)(a) and (d) of the Civil Liability Act, none of which are challenged on appeal. The finding by his Honour in relation to the circumstance mentioned in s 32(2)(a) - that the mental harm was suffered by Mr Wright was the result of a "sudden shock" - was supported by Ms Hedges' observations of Mr Wright's condition immediately following the attack on the roof balcony, as well as the medical evidence, including the diagnoses of post-traumatic stress syndrome by Drs Sternell, Davies and Klug. As to s 32(2)(d), there was a pre-existing relationship between Mr Wright and Optus as a trainee operator. Taking into account the circumstances referred to in s 32(2), relevantly, s 32(2)(a) and (d), did not involve impermissible hindsight reasoning.
3. The submission by Optus that a psychiatric injury was not reasonably foreseeable because Optus could not have had such a potential harm in mind when placing Mr Wright in proximity to Mr George on the roof balcony has been addressed above in section A when rejecting the challenge to his Honour's factual finding as to what Optus knew or ought to have known concerning the danger posed by Mr Georges' conduct on the roof. Suffice it to say that the circumstances confronting Optus when Mr George was found in an unauthorised place on level 4, refusing reasonable instructions and directions to return to the recreation room, were completely different to the generally "innocuous nature" of call centre work in the training room on the ground floor.
4. Further, the incongruity of Mr Wright being the only person to whom Mr George had indicated that he wished to speak when apparently affected by drugs on the roof balcony, notwithstanding that Mr Wright had told the Optus staff that he was not friendly with Mr George and had not given him any drugs, should have raised the need for caution in the mind of Mr Williams when acceding to Mr George's request to speak with Mr Wright on the roof balcony. Mr Williams accepted so much in his evidence, when he acknowledged that, but for his wrong assumption that they were friends, sending for Mr Wright to speak to Mr George on the roof balcony was "quite strange".
5. That Mr George in his apparently drug-affected condition had only mentioned one person (who was not a friend), and expressed a wish to see the same person, for whom he was "waiting" on the roof balcony, and had refused reasonable directions and requests to return to the recreation room were all matters which should have indicated to a person in Mr Williams' position managing the situation on the roof, that Mr George might have particular intentions, including possibly to harm not only himself but the person the sole subject of his interest if he came within proximity of Mr George on the roof balcony, and that such an attack might occur in proximity of the edge of the balcony, where he was pacing up and down, with life-threatening consequences for the victim.
6. The primary judge's findings (at [118]) as to the actual knowledge possessed by Optus' employees, relevantly Ms Hedges and Mr Williams, are set out at [162(3)] above. Subject to one matter, those findings do not involve, in my view, impermissible aggregation of the knowledge of Ms Hedges and Mr Williams. All of the findings, except one, relate to Mr Williams' actual knowledge. The exception is the finding that Mr Wright would have told Mr Williams, had he asked, that he did not really know Mr George and was not his friend. Since that question had not been asked by Mr Williams that matter, which was only known to Ms Hedges, was not within Mr Williams' actual knowledge. To that extent, his Honour erred by either conflating the actual knowledge of Ms Hedges and Mr Williams or taking into account a matter not within Mr Williams' actual knowledge, when no case had been advanced below that Mr Williams was negligent in failing to make that particular enquiry of Mr Wright. However, I do not consider that error to be material in the context of the matters which were correctly found to be within Mr Williams' actual knowledge. That Mr Williams assumed Mr Wright and Mr George were friends does not materially alter the highly unusual circumstances on the roof balcony which Mr Williams was required to address and manage as the senior Optus employee at the Gordon premises. Mr Williams had actual knowledge that Mr George had only expressed interest in one person (Mr Wright), who Mr Williams assumed was a friend, and Mr Wright had to be brought to the roof balcony to speak with Mr George, rather than Mr George returning to the relative safety of the enclosed recreation room on level 4.
7. That Mr Williams assumed Mr Wright and Mr George were friends did not lessen the foreseeability of the risk of harm to Mr Wright of an assault by Mr George in the proximity of the balcony railing having regard to Mr George's aberrant behaviour near the balcony railing. Mr Williams ought to have foreseen that the risk of Mr George, in his apparently drug-affected condition, inflicting personal injury on Mr Wright by assaulting him on the balcony, extended to the risk of that harm occurring at or near the edge of the balcony thereby endangering Mr Wright's life, and that Mr Wright might suffer a recognised psychiatric illness if put in proximity to Mr George on the balcony.
8. In my view, it was open to his Honour to find that Optus ought to have foreseen that Mr Wright was being placed at a risk of some kind of (physical) injury from Mr George on the roof balcony and that he might suffer a psychological injury as a result of being exposed to that risk in the proximity of the edge of the balcony.
9. Ground 2 should be rejected. There being no error in his Honour's finding that the condition in s 32 of the Civil Liability Act was satisfied, it is necessary to turn to the question of whether a duty of care existed to protect Mr Wright from the criminal acts of Mr George on Optus' premises, and if so, was such a duty breached.

Submissions

1. Optus submitted that the parties were not in an employment relationship and that his Honour erred in finding that Optus owed a duty of care analogous to the duty owed by an employer to an employee, relying on TNT v Christie.
2. Optus accepted that, at common law, the duty owed by an employer to an employee can extend to require protection against the potential for criminal conduct, but argued that such cases are rare and arise only in special circumstances, or where the very nature of the employment created the risk, such as risky work (for example, where money-handling or liquor is involved), or where there is a history of violence.
3. In distinguishing such cases from the present, Optus emphasised that the training course at its premises was for preselected white-collar workers; it was conducted during the daytime; it did not include risky work; and there was no previous history of violence in the workplace. These factors were said to negate any relevant duty to Mr Wright to control the actions of Mr George, or protect Mr Wright from the risk of harm of being exposed to Mr George on the roof balcony.
4. In oral argument, Optus submitted that the emphasised words in the statement of duty by his Honour (set out at [155] above) disclosed error by formulating the relevant duty of care in terms of its breach, an approach deprecated by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [191]-[192] (Graham Barclay Oysters v Ryan). Whilst counsel for Mr Wright accepted this criticism and did not seek to uphold this part of his Honour's statement of the duty of care, counsel sought to uphold the finding that a relevant duty of care was owed by Optus to Mr Wright.
5. Counsel for Mr Wright expressed the duty of care in terms of taking reasonable care to avoid exposing persons, such as Mr Wright, who was in an analogous position to that of an employee, to unnecessary risk of injury. It was submitted that it might also be expressed as to not unnecessarily place Mr Wright in harm's way. Reference was made to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20; Hamilton v Nuroof (WA) Pty Ltd [1956] 96 CLR 18; [1956] HCA 42 at 25; and Fozza v Tooth & Co Ltd [1964] 112 CLR 316; [1964] HCA 29 at 319.
6. Optus initially submitted that his Honour's formulation of the content of the duty (set out at [156] above) was flawed by its reference to "devising and instituting a system for managing aberrant behaviour", because the incident involving Mr Wright was the kind of event that could not have been anticipated, nor planned against. However, in oral argument, counsel for Optus retreated somewhat from this submission. Counsel properly acknowledged that his Honour's reference to a "system" was to be understood in context as a response to a dynamic situation.
7. Counsel for Mr Wright submitted that his Honour's reference to "devising and instituting a system was a reference to the obligation to plan and put in place a system" for dealing with the situation which was unfolding on the roof and, as his Honour found, which involved the aberrant behaviour of Mr George and safeguarding Mr Wright.
8. Optus also submitted that the content of the duty had not been formulated prospectively: Romeo v Conservation Commission (NT) (1998) 192 CLR 431; [1998] HCA 5. It was contended that his Honour had erroneously applied hindsight. Next, Optus submitted that it was wrong to formulate the duty of care focusing solely upon protecting people from Mr George. It was argued that whatever duty of care Optus owed Mr Wright was owed equally to Mr George. Finally, Optus complained that his Honour took into account irrelevant matters in formulating the content of the duty of care, namely the circumstance that the services of Mr Wright and Mr George were provided by different agencies requiring Optus to exercise reasonable care in coordinating their interactions for the avoidance of a risk that one may cause the other harm.

Decision - Optus owed Mr Wright a duty of care

1. In Modbury, Gleeson CJ (at [14]) said that "where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable". That observation is apposite to the present case for a number of reasons.
2. One is that this case involves Optus' legal responsibility to Mr Wright for the criminal conduct of a third party on Optus' premises causing damage to Mr Wright. Another is that this case does not involve the duty of an employer (or a person in a closely analogous position) to exercise reasonable care for establishing, maintaining, and enforcing a "safe system of work" in the sense usually understood in a "systems" case - that is, as relating to the method by which the work was to be undertaken, such as in cases like Ashrafi at [64].
3. A further reason is that the postulated duty of care owed by Optus to Mr Wright first arose at the time when Mr George was found by Ms Hedges behaving abnormally on the roof balcony on level 4. This was the time that the risk of harm first presented itself. Accordingly, the existence and scope of any relevant duty of care owed by Optus to Mr Wright must be attuned to the circumstances of the dynamic situation on the roof balcony on the morning of 15 March 2001 which required an ad hoc response by Optus to the risk of harm.
4. The starting point for the analysis of the duty question is that Mr Wright suffered personal injury, including mental harm, brought about by the deliberate wrongful conduct of Mr George who attacked him on the roof balcony. The capacity to assert control over third parties was viewed in Modbury as the prerequisite to the imposition of a duty of care to prevent foreseeable damage from their criminal actions: see at [21] (Gleeson CJ); [42] (Gaudron J); [69] (Kirby J); and [111] (Hayne J).
5. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 (Adeels Palace) involved the proprietor of licensed premises who was found to owe a customer a duty to take reasonable care to prevent injury resulting from the violent conduct of others on its premises. The High Court rejected the contention that Modbury dictated the conclusion that no relevant duty of care was owed by the licensee to the injured patron: at [23]. This was because the duty alleged in Modbury was founded only on the shopping centre owner's position as occupier of land controlling the physical state of the land (relevantly, the level of lighting in its car park). There was no issue in Modbury that the shopping centre owner should have controlled but did not control access by the third party assailants to the land it occupied. Here, the issue is how Optus should have controlled Mr George's contact with other employees on the roof balcony of its premises.
6. In distinguishing Modbury, the High Court identified three considerations in Adeels Palace as to why the proprietor of the licensed premises owed each plaintiff a relevant duty of care: first, the failure of the occupier of the premises to control access to, or continued presence on, its premises of the persons responsible for the violent conduct. Secondly, the premises were licensed premises where liquor was sold and it was well recognised that care must be taken because misuse and abuse of alcohol might give rise to harm from violence and other antisocial behaviour. Thirdly, a particular duty rested on the occupier of licensed premises to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act 1982 (NSW), the licensee was bound to prevent occurring, namely violent, quarrelsome or disorderly conduct.
7. Here the basis for the existence of a relevant duty of care owed by Optus to Mr Wright was not merely Optus' occupation of the premises on which the attack occurred. The factors relevant to the imposition of a duty of care in the present case are: 1. the power Optus had to assert "control" over Mr George while on its premises as a participant in its training course; 2. Mr George's presence on the roof without permission, refusing reasonable instructions and directions by persons Optus had placed over him; 3. Mr Wright's vulnerability to harm from Optus' conduct, subject as he was to Optus' supervision, direction and day-to-day control while on its premises; 4. Mr Wright's reliance on Optus not to put him in harm's way; 5. the special knowledge of Optus concerning the progression of Mr George's aberrant behaviour and its assumption of responsibility for managing the incident with Mr George on the roof balcony.

Control

1. Of these factors, the control feature is the most dominant one in determining the existence of a duty of care. Participants in the training course were required to attend Optus' premises at hours specified by Optus and to follow directions given to them by persons Optus placed in a supervisory role over them, including the course leader, Ms Hedges. Here the control feature was Optus' capacity, both legal and practical, to control not only the conduct of Mr George while on its premises but also to control the exposure of others to the aberrant behaviour of Mr George on the roof balcony. Optus could assert authority over Mr George as a participant in the training course, including when he was found in an unauthorised place on the roof balcony. Absent compliance with its reasonable directions and requests (including that he return inside to the recreation room), Optus could remove Mr George from its premises. Optus also had control over Mr Wright while on its premises. Optus was in a position to prevent Mr Wright coming within the proximity of Mr George on the roof balcony. Instead Optus requested Mr Wright leave level 1 and speak with Mr George on the roof balcony, thereby exercising its control over the workplace, where IPA's employee (Mr Wright) was required to attend, as part of its response to the situation involving Mr George on the roof balcony.
2. It is not to the point, as Optus contended, that given the nature of the training course, the relationship between Optus and Mr Wright did not involve risky work or a history of violence on the premises. When Mr George was found, unauthorised, on the roof balcony and refusing to obey reasonable directions and instructions from persons Optus had placed over him, Optus had the power to control the movement of other persons in the training course on the ground floor, including Mr Wright, and therefore to keep them from "going in harm's way": Modbury at [110] (Hayne J); that is, from being exposed to the unfolding situation on the roof balcony on level 4. As Gleeson CJ recognised in Modbury (at [26]): [l]eaving 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.

Vulnerability, reliance and assumption of responsibility

1. Plainly, Mr Wright was vulnerable to the risk of being attacked by Mr George on the roof balcony. This was not simply a generalised vulnerability of a kind not warranting the imposition of a duty of care. "Vulnerability" as a factor warranting the imposition of a duty of care refers to the plaintiff's inability to protect himself or herself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant: Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 at [23]. Often the concepts of reliance and assumption of responsibility are indicators of a plaintiff's vulnerability to harm from a defendant's actions: Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [125] (McHugh J).
2. Here Mr Wright's inability to protect himself from the consequences of Optus' want of reasonable care arose from the circumstance that he felt a degree of compulsion to comply with Ms Hedges' request that he accompany her to the roof balcony to speak with Mr George. As already indicated, Mr Wright relied upon Ms Hedges' sanction of approaching Mr George and that it was safe for him to do so. Mr Wright's vulnerability does not depend on a finding being made, in terms of ground 2 of his notice of contention, that Ms Hedges directed Mr Wright to attend the fourth floor. This is because there is no challenge to his Honour's finding that although he would have preferred not to get involved, it was reasonable for Mr Wright to comply with the request to assist made of him by persons Optus had placed over him. That finding was consistent with Optus' power to control the work activities of Mr Wright whilst on Optus' premises, including the power to give reasonable directions.
3. As to assumption of responsibility, Optus' special knowledge of the source of potential harm to others has been addressed above when rejecting the challenge to his Honour's factual finding concerning what Optus knew or ought to have known as to the danger posed by Mr George on the roof balcony. As his Honour found, Mr Williams took charge of managing the situation on the roof balcony. This included taking action to address the situation (by reporting the incident to his superiors), co-opting Mr Dee to supervise the incident in the intervening period, and giving instructions as to which persons were to be brought within proximity of Mr George on the roof balcony.
4. The primary judge correctly emphasised (at [79]), referring to the statement of Gummow J in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 (RTA v Dederer) at [49], that a duty of care is discharged by the exercise of reasonable care; it is not a duty to prevent harm caused by the conduct of others. However, insofar as his Honour described the duty of care in terms of its breach (see [155] above), that was an error.
5. As explained by Gummow and Hayne JJ in Graham Barclay Oysters v Ryan (at [191]), the enquiry as to breach, which involves an analysis of the competing considerations (now found in s 5B(2) of the Civil Liability Act) relevant to a reasonable response to the risk of harm that existed, is impeded, not assisted, by formulating the relevant duty in terms of its breach.
6. Nonetheless, this error in the statement of the duty is not material. Optus owed Mr Wright a duty to take reasonable care to avoid exposing him to unnecessary risk of injury by persons on its premises apparently affected by drugs and behaving as Mr George was - in an aberrant manner on the roof balcony.
7. Contrary to Optus' contention, his Honour assessed the content of the duty prospectively by reference to Optus' knowledge as at the time when the duty of care arose - when the Optus staff found Mr George on the balcony roof - which was before Mr Wright was requested to attend the roof.
8. It is no answer for Optus to point to the existence of another duty of care which Optus owed to Mr George. That a duty of care to Mr George existed does not mean, as Optus contended, that his Honour erred in focusing on the duty of care owed to Mr Wright. This is not a case in which Optus was confronted with conflicting obligations to Mr George and Mr Wright which were inconsistent with the performance of its duty of care to them both. Critically, the discharge of any relevant duty of care owed by Optus to Mr George did not require bringing Mr Wright (a person with no prior connection or association with Mr George) in proximity to him on the roof balcony.
9. Nor did his Honour take into account irrelevant matters in formulating the content of the duty of care. The services of Mr Wright and Mr George had been supplied to Optus by different labour-hire companies which did not have any representative present on Optus' premises to supervise their respective employees. That gave rise, as his Honour found, to a need for Optus to coordinate their interactions and in so doing, exercise reasonable care to avoid the risk that one may cause the other harm.

Risk of harm

1. It is necessary at this point to say something about the risk of harm as this is relevant to the imposition of a duty of care with the content for which Mr Wright seeks to uphold. In argument in this Court, Optus took a different approach to the identification of the risk of harm to that which it took at trial. Optus submitted that the risk of harm should be defined more narrowly as either the risk of death, or the risk that Mr Wright would suffer a psychological injury as a result of an attempted murder.
2. In some cases, it is appropriate to define the risk of harm with greater particularity: see, for example, Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90; Gulic v Boral [2016] NSWCA 269. However, as Leeming JA explained in Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 (Uniting Church in Australia Property Trust v Miller) (at [118]) (Basten and Simpson JJA agreeing): It is clear that the risk is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances.
3. Further and importantly, as Leeming JA acknowledged in Uniting Church in Australia Property Trust (NSW) v Miller (at [119]): …there may commonly be a range of appropriate formulations of the generality of the risk of harm. It is unrealistic to expect there to be a single canonically "right" characterisation of the risk of harm.
4. It has been said that it is necessary to focus on the "true source of the potential injury": RTA v Dederer at [60] (Gummow J). Applied to the present case, the source of the potential injury arose not from some general risk of criminal conduct of a third party on Optus' premises, but rather (adopting and supplementing the risk identified by his Honour), from the risk that a person behaving aberrantly may inflict personal injury on Mr Wright in proximity to the edge of the roof balcony, extending to impairment of his physical and mental condition. The italicised words should, in my view, be added to his Honour's description of the risk of harm to encompass the circumstances that occurred here.
5. It was the risk of physical harm created by the aberrant behaviour of Mr George in proximity to the edge of the roof balcony which was the true source of danger to Mr Wright, with the possible injury being both physical and mental. That his Honour found that Mr Williams believed that the immediate risk of suicide by Mr George had passed when he left the roof to return to his desk at level 3 did not obviate the risk of harm presented by a person apparently affected by drugs in close proximity to the edge of the balcony, refusing reasonable directions and requests to leave the balcony and only expressing interest in one person, who had denied knowing or giving drugs to him.
6. Subject to the refinements to the terms of the duty of care and its content as referred to above, Optus has not made out its challenge to the existence and content of the duty of care his Honour found it owed Mr Wright.
7. Ground 1 should be rejected.

C. Breach of duty

1. The question of whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable person in Optus' position would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to trainees, such as Mr Wright, when Mr George was found on the roof balcony behaving as he was. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act, s 5B(1).

Submissions

1. Optus challenged both of his Honour's findings concerning breach - that a reasonable person in the position of Optus (a) would not have permitted Mr Wright to go near Mr George on the roof; and (b) would have called the police to remove Mr George from the premises, if he did not comply with directions given to him by Drake representatives.
2. In writing, Optus submitted that neither of the breaches as found by the primary judge in any sense related to a "system" case. However, in oral argument, counsel for Optus correctly acknowledged that the present case was not a "system" case; rather it was one requiring a response by Optus to a dynamic situation on the roof balcony.
3. Optus next submitted that neither of the primary judge's findings regarding reasonable precautions was open on the evidence. Optus characterised his Honour's findings of breach as, in effect, that Mr George should have been left alone on the roof until the police arrived.
4. Optus also submitted that the finding that no one - especially Mr Wright - should be allowed to approach Mr George was based upon hindsight. Optus repeated its earlier submission with respect to duty of care that all that was known to the Optus employees was that Mr George may have been suicidal. Optus emphasised that when Mr George asked to see Mr Wright an assumption was made that they were friends and, on that basis, it was only reasonable and caring to see if Mr Wright could assist.

Decision - Optus breached its duty of care to Mr Wright

1. The contention by Optus that there was nothing which suggested that Mr George was dangerous to others has already been rejected above. It was reasonably foreseeable that a person found on a roof balcony, unauthorised, behaving as though severely affected by drugs, and disobeying instructions and directions from his workplace supervisors, might harm himself or others who came in proximity to him at or near the balcony edge.
2. Taking into account the control exercised by Optus over the participants in the training course on its premises, the first of the reasonable precautions which his Honour found that Optus should have taken - of not allowing Mr Wright to approach Mr George on the roof balcony - was not based on hindsight. Having regard to the risk of harm identified, the breach was assessed prospectively.
3. Optus' characterisation of the actions of Mr Williams, Ms Hedges and Mr Dee as reasonable and caring toward Mr George misses the point. Mr George was ignoring reasonable instructions and directions to leave the roof balcony. He was generally uncommunicative and would not explain why he was refusing to leave the balcony and return to the recreation room on level 4. Mr Williams had not determined how to deal with Mr George pending discussing with Ms Taylor how to proceed. Nonetheless, Mr Williams effectively left it to Mr Wright to manage Mr George on the roof balcony unassisted (albeit watched over by Mr Dee) hoping that Mr Wright could persuade him to return to the recreation room pending the arrival of the Drake representatives to remove Mr George from Optus' premises. Mr Dee watched from a distance of at least 15 metres. It should have been obvious to Mr Williams that Mr Wright on his own was not capable, let alone qualified, to manage a person behaving in an abnormal manner as Mr George was on the roof balcony.
4. In my view, there was no error in his Honour's finding that Optus should not have allowed Mr Wright to approach Mr George on the roof balcony. His Honour's reference in this context to Optus is to be understood as a reference to Mr Williams. The legal basis on which Optus is liable for the negligence of Mr Williams' is addressed in section D below. Optus' failure to take that reasonable precaution constituted a breach of duty for the purposes of s 5B of the Civil Liability Act.
5. In light of that conclusion, it is not necessary to address ground 1 of Mr Wright's notice of contention, which asserts that his Honour should have had regard to the expert evidence in finding that Optus breached its duty of care. As to that part of the evidence of Dr Roberts which his Honour found not to be relevant and, accordingly, of no weight, no error has been demonstrated in in his Honour's reasons that Dr Roberts' opinion was based on material not available to the Optus employees on the day of the incident. As to his Honour's finding that the occupational health and safety evidence did not assist, that view was open for the reasons given by his Honour at [94]. In addition, the present case did not involve a "safe system of work" in the usual sense to which the evidence of the ergonomists was directed.
6. Nor is it necessary to address the reasonableness of the other precaution which his Honour found Optus should have taken, namely calling the police. Optus is correct in highlighting that his Honour found that this step was only required if Mr George refused to comply with the directions of the Drake representatives to leave the premises (at [125]). That the precaution of calling the police temporally followed taking the first precaution of not exposing Mr Wright to Mr George on the roof balcony says nothing about the reasonableness of Optus' not taking steps to protect Mr Wright by not allowing him to come within proximity of Mr George on the roof balcony.
7. Grounds 3, 5 and 6 are not made out.

D. Vicarious liability

1. Ground 7 of the notice of appeal and ground 3 of the notice of contention are both directed to the same issue - whether Optus is vicariously liable for the conduct of Mr Williams and Ms Hedges. To understand the argument it is necessary to briefly refer to the way in which the case was pleaded and run at trial.

The case at trial

1. The amended statement of claim pleaded that Optus was negligent and/or vicariously liable for the negligence of Ms Hedges, but did not expressly plead vicarious liability for the conduct of Mr Williams. If not explicit, it seems to have been at least implicit that such a case was advanced in Mr Wright's closing submissions at trial. So much was recognised in Optus' closing submissions which asserted that the conduct of Mr Williams was an appropriate response to the circumstances which confronted him as well as Ms Hedges and Mr Dee.
2. However, Optus objected in oral closing submissions to Mr Wright relying on a case based on vicarious liability for the conduct of Mr Williams, because this had not been specifically pleaded. In response to that objection, counsel for Mr Wright submitted that it was unnecessary to identify in the pleading every person for whom Optus was vicariously liable, or whether they were "senior enough" to be taken to represent Optus, that is, to be part of the senior management of Optus.
3. The matter was left in a somewhat unsatisfactory state. It seems that Optus did not assert that it was prejudiced by Mr Wright's failure to specifically plead a vicarious liability case based on Mr Williams' conduct; indeed, Optus had made submissions as to why the conduct of Mr Williams was not negligent. Mr Wright did not seek leave to amend his pleading to advance such a claim, asserting that it was unnecessary to do so. However, counsel for Mr Wright conflated the legal basis upon which Mr Williams' conduct was to be attributed to Optus by characterising Mr Williams' conduct as the conduct of Optus because "he represented the company", a submission seemingly directed to the attribution of an agent's knowledge to a corporation based on the principles in Tesco Supermarkets Ltd v Naltrass [1972] AC 153; [1971] UKHL 1 (Tesco).

Primary judge's findings and reasoning

1. After observing (at [113]) that no vicarious liability case for the negligence of Mr Williams had been pleaded against Optus, his Honour took the approach that the question of breach of duty was to be determined from the standpoint of a reasonable person in the position of Optus. His Honour found that while Mr Williams consulted others in Optus, including Ms Taylor, the decisions Mr Williams made were essentially decisions of Optus. However, after referring to the principles of attribution in Tesco at 171 (Lord Reid) and 187 (Viscount Dilhorne), his Honour considered that Mr Williams' conduct could not be attributed directly to Optus, because Mr Williams seemed to be reporting to Ms Taylor.
2. His Honour went on to find that Mr Williams was acting within the scope of his employment and with the authority of his superiors who had left the management of the situation to him. His Honour described Mr Williams as Optus' "man on the ground for dealing with this matter": at [113]. His Honour did not separately address the vicarious liability case based on Ms Hedges' conduct.
3. After referring to authorities on the rules for attribution of conduct of servants or agents to a company, his Honour concluded (at [116) that Optus' duty was personal or non-delegable, and, in those circumstances, Mr Williams' acts and omissions may be attributed to it without necessary reliance on the doctrine of vicarious liability, referring to TNT v Christie at [47].

Submissions

1. Optus did not direct any written submissions to whether it was vicariously liable for Mr Williams' conduct. In oral argument, Optus submitted that, although the case at trial was not advanced on the basis that Optus was vicariously liable for Mr Williams' conduct, that is what his Honour actually found. Counsel for Optus accepted that the finding of negligence against Optus was made on the basis that it was responsible for its own employees' conduct.
2. Counsel for Mr Wright emphasised that no concession was made at trial about the need to plead vicarious liability for the conduct of Mr Williams. It was submitted that the case advanced by Mr Wright was that, as a company acts through its servants and agents, it was not necessary to plead that an employer is liable for the conduct of its servants or agents or that an employer acts through its servants or agents.

Decision - Optus is vicariously liable for Mr Williams' negligence

1. The concept of a non-delegable duty of care was considered by Mason P in Lepore v State of New South Wales (2001) 52 NSWLR 420; [2001] NSWCA 112, where, after referring to discussion of the topic in a number of High Court authorities, his Honour noted (at [28]) that employers, hospitals and school authorities are the clearest categories of relationships giving rise to such a duty. He continued (at [29]): The expression "non-delegable duty" is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate. A non-delegable duty is said to be personal or direct, rather than vicarious, but even this difference is more semantic than substantial.
2. It is not necessary to consider the correctness of the primary judge's reliance on a non-delegable duty. As indicated, his Honour's finding on liability when considering the question of negligence under s 5B(1)(a) of the Civil Liability Act was on the basis of the knowledge and actions of Ms Hedges and Mr Williams as employees of Optus. That approach reflected how the case seems to have been run at trial. Optus did not contend at trial that it did not owe a duty of care to Mr Wright because it had employed a qualified and ostensibly competent team leader in the form of Mr Williams. On the contrary, Optus took the position that the conduct of its servants or agents, including, relevantly, Mr Williams, was not negligent, thus basing its case on the presumption that it was vicariously liable for the conduct of its employees, including Mr Williams.
3. The question of whether Optus is vicariously liable for the conduct of Mr Williams can and should be addressed on appeal as the matter was fully argued in this Court and without complaint by Optus (in this Court) as to the state of the pleadings: Supreme Court Act 1970 (NSW), s 75A(10).
4. In State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (Lepore) at [40], Gleeson CJ said that: An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. The Chief Justice continued (at [41]), observing that the antithesis of conduct in the course of employment is sometimes described as that the employee was "on a frolic of his own".
5. Vicarious liability is to be distinguished from the rule of attribution that a company must necessarily have attributed to it the state of mind of its directing organ under its constitution, that is, (usually) the board of directors, or those relevant agents to whom the directing organ has delegated the conduct of its business by the description of its "directing mind and will". The principles in Tesco had no application to the present case.
6. Differing views have been expressed as to the legal theory of the vicarious liability of an employer. Does it depend upon the employee's conduct or the employee's liability? The view which seems to have prevailed is that of Fullagar J, rather than views of Kitto J (and Taylor J) in Darling Island Stevedoring and Lighterage Co v Long (1957) 97 CLR 36; [1957] HCA 26. Fullagar J said at 57: The rule is, in my opinion, rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another. See also Kable v State of New South Wales [2012] NSWCA 243 at [51]-[53] (Allsop P).
7. In Bilta (UK) Ltd (in liquidation) v Nazir (No 2) [2015] UKSC 23; [2015] WLR 1168, Lord Sumption JSC explained (at [70]): "[v]icarious liability did not involve any attribution of wrongdoing to the principal. It is merely a rule of law under which a principal may be held strictly liable for the wrongdoing of someone else."
8. It was not suggested in the present case that the analysis would be different if the "liability" theory (as opposed to "conduct" theory) of vicarious liability is accepted.
9. That Optus did not complain on appeal that Mr Wright should not be permitted to make out a case of vicarious liability for Mr Williams' conduct is unsurprising. The case was run and argued at trial on the basis that Optus was (or may be found) negligent because it was liable for the conduct of its employees, in particular Mr Williams and Ms Hedges. His Honour found that in managing the incident, Mr Williams was acting in the course of his employment and with the authority of his superiors. A finding should be made that Optus is vicariously liable for the conduct of its relevant employee, Mr Williams who took charge of managing the incident involving Mr George on the roof balcony following Ms Hedges' report of her concerns. It is not necessary to consider the conduct of Ms Hedges. His Honour did not make any finding of negligence based on her conduct and there is no notice of contention seeking to uphold the finding of negligence on the basis of her conduct for which Optus is no doubt vicariously liable.
10. Accordingly, ground 3 of the notice of contention should be upheld and ground 7 of the notice of appeal (directed to vicarious liability) should be rejected.
11. Since Optus does not press its appeal directed to the finding on causation (ground 4), the challenge to the finding on liability must fail.

Damages

1. His Honour assessed total damages of $3,851,286 made up as follows (at [195]): Non Economic Loss 75% $426,000.00 Past Economic Loss $708,824.00 Interest on past economic loss $107,250.00 Past employer superannuation contributions $77,970.74 Past out of pocket expenses $412,262.32 Future economic loss $877,905.50 Future employer superannuation contributions $126,418.00 Fox v Wood $21,427.64 Future medical expenses $326,001.00 Past care Nil Future care $344,715.00 Fund management $443,940.00 Total damages $3,851,286.00 Corrected total of damages $3,872,714.20

1. As appears from the above table, the total damages assessed by his Honour contained an arithmetical error. Further, as already mentioned, following agreement between the parties as to certain miscalculations in his Honour's assessment of damages, the judgment was increased to $3,922,116.09 on 20 March 2015. The details of the miscalculations were not explained in the materials before this Court. The analysis which follows assumes that the above figures are correct insofar as they relate to the heads of damage in issue on appeal.
2. An assessment of damages involves an evaluative judgment. It has been said that such an assessment is arguably subject to review only in accordance with the criteria in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Costa v The Public Trustee of NSW (2008) 1 ASTLR 56; [2008] NSWCA 223 at [103] (Basten JA), at [37]-[39] (Ipp JA), cf at [18] (Hodgson JA). Consistently with this approach, counsel for Optus candidly acknowledged the difficulty of establishing error in the assessment of damages in the present case.
3. In writing, Optus challenged his Honour's assessment of (a) non-economic loss, (b) future care, (c) future medical treatment, (d) future economic loss and (e) fund management. Only the first three of these heads of damage were mentioned by Optus in oral argument and the primary focus of its submissions was the challenge to the award for future care.

Primary judge's findings and reasoning

1. His Honour's reasons on damages commenced with some general findings which are relevant to the specific heads of damage which were in dispute.
2. First, his Honour found that Mr Wright's pre-injury history of depression did not have anything to do with the chronic severe post-traumatic stress disorder (PTSD) resulting from the 15 March 2001 injury. Nor was there anything to suggest that this history exposed Mr Wright to a greater risk of a severe psychiatric injury in the future which needed to be taken into account in assessing damages: at [156]. Counsel for Optus accepted in this Court that Optus did not discharge the evidential burden of demonstrating that Mr Wright's post-15 March 2001 psychiatric illness was in part caused by a pre-existing condition.
3. Secondly, his Honour found that Mr Wright's condition is chronic and severe. He also found that "its effect upon Mr Wright has been and will continue to be near-catastrophic" and that "he has been left with virtually no quality of life and requires ongoing medical treatment, medication and assistance in the activities of daily living": at [157].
4. Thirdly, his Honour accepted the evidence of Mr Stuart Wright, Mr Wright's father, that his son's living conditions in shared accommodation in Huskisson (on the New South Wales South Coast) were very rough, that his room was filthy and smelly and that his son did not care for himself, his clothing or his house: at [158]. His Honour also accepted Mr Stuart Wright's evidence contrasting his son's presentation before 15 March 2001 as bright, outgoing, strong-willed, with a good group of friends and socially active, who always took great pride in his appearance, to that after the injury, as "not the same" and "extremely self-willed, unco-operative to a great degree, having no self-regard and lacking in self-esteem": at [159]-[160].
5. Fourthly, his Honour noted the gradual development of Mr Wright's psychiatric injury. He returned to work on 26 March 2001 (not at Optus) but later ceased this work, as recruitment officer with another company, on 20 August 2001. Eight days later, he was admitted to the Sydney Clinic, where he remained until 3 October 2001. By December 2001, Dr Sternell had diagnosed Mr Wright with PTSD: at [161]. Within three weeks of his first discharge from the Sydney Clinic, Mr Wright took a paracetamol overdose on 21 October 2001 and was readmitted to the Sydney Clinic on 26 October 2001. He self-harmed during his time in the Clinic and required hospital treatment: at [163]. The heavy use of cannabis was detected during his first period as an inpatient at the Sydney Clinic and his dependence was treated along with his PTSD: at [164]. Dr Sternell observed on Mr Wright's second admission to the Sydney Clinic that he had lost all hope and became locked in a cycle of recurrent overdoses and self-harm. There followed what his Honour described as a vicious cycle of frequent admissions to hospital for inpatient treatment, including an involuntary admission to the Prince of Wales Hospital in November 2001. His Honour observed that the last inpatient treatment occurred in December 2009, and another period of hospitalisation scheduled for March 2010 was cancelled when the workers compensation insurer did not approve it: at [165].
6. Fifthly, his Honour found that, with his wide range of different prescription medications and some use of illicit drugs, including amphetamines, Mr Wright again developed substance dependence and was treated on a methadone programme because of dependency developed to oxycontin, which he used to treat headaches: at [167].

(a) Non-economic loss

1. After reviewing the medical evidence, his Honour concluded that Mr Wright's psychiatric injury was "in a near-catastrophic category": at [171]. Given the course of events since 2001, his Honour did not share Dr Davies' and Dr McLeod's small degree of optimism for improvement Mr Wright in the future. His Honour considered that Mr Wright would be unlikely to function in anything like a normal way even if he improved such that his life became more organised and ordered.
2. His Honour also found that it was extremely unlikely that Mr Wright would ever be able to form a permanent, meaningful and satisfying domestic partnership: at [172].
3. Having regard to the nature and severity of Mr Wright's injury, the pain and suffering he had experienced, the loss of amenity of life and loss of enjoyment of life he had gone through, his Honour assessed Mr Wright's non-economic loss as 75 per cent of a most extreme case. This equated to damages of $426,000.

Submissions

1. Optus submitted that an assessment of 75 per cent of a most extreme case was out of proportion to the evidence, and incompatible with awards in comparable cases. Such awards can be taken into account under s 17A of the Civil Liability Act. Reference was made to the lesser assessments of 50 per cent in Nicol v Whiteoak (No 2) [2011] NSWSC 1486 (Nicol v Whiteoak) and 37 per cent in Doherty v State of New South Wales [2010] NSWSC 450 (Doherty).
2. Whilst accepting that Mr Wright's condition is obviously serious, Optus submitted that he was not in a "near-catastrophic" category as his Honour found. Optus described Mr Wright's condition as having improved and stabilised, and emphasised that both his treating doctors, Dr Davies and Dr McLeod, anticipated further improvement. Optus complained that his Honour did not give any reasons for preferring the evidence of Dr Klug, a medico-legal psychiatrist, over the opinion of Mr Wright's treating doctors, Dr Davies or Dr McLeod.
3. Optus submitted that a proper assessment of a proportion of the most extreme case would have been in the order of 40 per cent.

Decision

1. The principles relevant to a challenge to an assessment of non-economic loss were set out in Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 (Basha) at [101] by McColl JA (Tobias JA and McClellan CJ at CL agreeing) as follows: [101] The challenge to the primary judge's conclusion on non-economic loss must be determined in accordance with the principles explained in Wynn Tresidder Management v Barkho [2009] NSWCA 149 (per McColl JA, Tobias and Young JJA agreeing): "[110] The approach taken when an appellate court is asked to review a primary judge's conclusion as to the severity of a plaintiff's non-economic loss by reference to a 'most extreme case' was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows: [49] The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not 'a most extreme case' has been said to be not 'readily ... susceptible of appellate review' as 'its resolution ... involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed). [111] A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264."
2. The approach stated in Basha was accepted in Jackson v Mazzafero [2012] NSWCA 170 at [21] (Hoeben JA, Macfarlan JA agreeing).
3. The following observations can be made here. First, the submission by Optus that an assessment of 40 per cent of the most extreme case is appropriate is to be viewed in the light of the submission Optus made at trial; that the appropriate range of the percentage proportion of the worst case was between 35 per cent and 45 per cent.
4. Secondly, the cases relied upon by Optus as comparable are of no real assistance. Doherty involved a 49-year old police officer who suffered from PTSD as a result of the work he was performing as a police officer. Mr Doherty's non-economic loss was assessed as 37 per cent of the most extreme case. This reflected the trial judge's findings that Mr Doherty's condition was not as bleak as was portrayed in the expert evidence the plaintiff relied upon; that there had been improvement in Mr Doherty's condition and his ability to participate in daily activities, including socialising with family and friends and playing golf; and that Mr Doherty was at a relatively early stage of his psychiatric treatment.
5. By contrast with the plaintiff in Doherty, Mr Wright had an extensive history of hospitalisation and clinical treatment from 2001 onwards.
6. Nicol v Whiteoak involved a 49-year old woman who sustained severe injuries in a boating accident which left her with a brain injury, physical and mental disabilities and obvious scarring on her face and limbs. However, the Court found (at [143]) that the plaintiff had made a remarkable recovery, albeit that it was far from complete. The plaintiff's non-economic loss was assessed as 50 per cent of a most extreme case.
7. Unlike the plaintiff in Nicol v Whiteoak, Mr Wright's condition, generally speaking, grew more severe as time passed and in some respects, for example, drug dependence, developed and/or deteriorated as a result of treatment, adding to his suffering and increasing the difficulty of his recovery.
8. Thirdly, and contrary to Optus' submission, his Honour gave reasons for preferring the opinion of Dr Klug. Whilst Dr Davies had expressed the view in March 2011 that there had been a "slight" improvement in Mr Wright's condition over the last four years, he also acknowledged that there was still a long way to go until Mr Wright could be considered to have a reasonable level of emotional functioning. Dr McLeod (Mr Wright's general practitioner), had expressed no more than a "hope" in April 2010 that Mr Wright would continue to slowly progress as he had done in the last two years. Against this, Dr Klug's opinion in June 2011 was that Mr Wright was chronically impaired and unlikely to work again in the foreseeable future. Dr Klug concluded that Mr Wright was chronically and severely disabled, and was likely to need inpatient treatment at times. Dr Klug's opinion was consistent with his Honour's findings of fact.
9. Fourthly, his Honour did not ignore the possibility of improvement in Mr Wright's condition in the future. He considered, however, that any improvement was unlikely to result in Mr Wright functioning in anything like a normal way. That view was open to his Honour on the evidence. For about 14 years following the incident, Mr Wright had suffered from PTSD and had bouts of suicidal ideation and self-harm. Mr Wright had not worked since August 2001; he used heavy drugs and then methadone; he became addicted to medication, such as oxycontin; he undertook no social or recreation activities; he was completely antisocial, living an isolated life, suffering from depression, hallucinations, fear, anxiety and all of the symptoms of severe PTSD. He attempted suicide numerous times, self-harmed by cutting his wrists and self-inflicting cigarette burns, and has been diagnosed with borderline personality disorder, panic attacks and bulimia nervosa. Mr Wright's condition led to three admissions to Northside Clinic, multiple admissions to St John of God Hospital, at least eight admissions to Sydney Private Hospital, three admissions to Wesley Hospital, and admissions to Shell Harbour, Prince of Wales and St Vincent's Hospitals, in addition to his undergoing multiple treatment regimens when out of hospital.
10. While the assessment of 75 per cent of a most extreme case may be considered generous, Optus did not suggest that his Honour erred in the application of principle. I am not satisfied that this assessment was manifestly erroneous. Ground 8(a) has not been made out.

(b) Future care

1. Unlike the claim for past care which his Honour rejected because the statutory thresholds in s 15 of the Civil Liability Act (the provision of gratuitous care services of at least six hours per week for a continuous period of at least six months) were not satisfied (at [191]), the claim for future care was advanced on a commercial basis of 10 hours per week (as claimed in the statement of particulars).
2. His Honour found that Mr Wright's psychiatric injury made him unmotivated and disorganised and that he required help with housework, cleaning, washing and perhaps some shopping to assist to make sure there was food in the house. He accepted Mr Wright's unchallenged evidence that if he had someone available to him and he could afford it, he would pay someone to provide those services. His Honour considered that the position with a paid provider would be different to Mr Wright's resistance to assistance from his family, taking into account his volatile relationship with his parents.
3. His Honour found that 10 hours per week as claimed was a "modest" amount to allow for these services: at [192]. Based on a weekly allowance of $350, his Honour assessed the future care as $344,715.

Submissions

1. Optus complains that no real reasons were provided for the award of damages for future care because that his Honour failed to address whether domestic assistance was necessary and whether or not Mr Wright would accept paid care. Optus pointed to the opinion of Mr Wright's treating psychiatrist, Dr Davies, that care was not necessary. Optus repeated the submission it made at trial - that it was doubtful that Mr Wright would accept paid care, referring to Mr Wright's father's description of how his son resisted (voluntary) assistance from his family.
2. Optus also submitted that, having regard to the medical evidence of how difficult Mr Wright could be, coupled with his past resistance to (voluntary) family care, there was only ever a "chance" that Mr Wright could build a relationship with a paid provider. Accordingly, it was submitted that any damages for future care should be calculated by reference to the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20, and the amount awarded should be discounted for the risk that the arrangement with a paid provider would fail.

Decision

1. It can be accepted that his Honour's reasons were brief. However, as Mr Wright submitted, this largely reflected the limited way in which Optus challenged the claim for future care at trial.
2. The complaint by Optus that his Honour did not refer to Dr Davies' opinion that Mr Wright did not require care is unfair. The written submissions of Optus at trial did not direct his Honour's attention to this evidence, nor make such a submission based on this evidence. No attempt was made by Optus in this Court to demonstrate Dr Davies' qualifications to provide such an opinion (as opposed to providing medical evidence as to need): see Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [54] (Allsop P, Campbell and Meagher JJA agreeing).
3. In any event, very little weight should be given to the opinion of Dr Davies that Mr Wright did not require assistance. This opinion, which was a bare conclusion unsupported by reasons, was only directed to the question of the "heavier aspects" of Mr Wright's domestic duties (which were not specifically identified).
4. Further and importantly, Dr Davies' opinion was not directed to the relevant activities the subject of the award for future care. This was whether there was a need for assistance with housework, cleaning, washing and shopping (for food), because Mr Wright's psychiatric injury made him unmotivated and disorganised. On this question, his Honour had regard to, and was entitled to accept the unchallenged evidence of the need for care given by Mr Stuart Wright and also Mr Wright himself.
5. His Honour was entitled to reject Optus' submission that Mr Wright was less likely to accept an arrangement with a paid provider than from other family members. The circumstance that Mr Wright had resisted family care in the past was sufficiently distinguishable, as his Honour found, having regard to the dynamics of the family relationship. His Honour was entitled to accept Mr Wright's unchallenged evidence that he would utilise paid care in the future.
6. Nonetheless, there remains one difficulty with his Honour's assessment of 10 hours per week for future care as "modest". Counsel for Mr Wright accepted in this Court that there may have been an over-estimate of the claim for future care in the statement of particulars relied upon at trial. That concession was properly made in circumstances where there was no direct evidence of the time likely to be involved in providing domestic services and care to meet Mr Wright's need for assistance. In my view, ground 8(b) has been made out to this limited extent.
7. That is not to say that no award should be made for future care. The Court must do the best it can on the available evidence. Other than referring to the opinion of Dr Davies, which has been dealt with above, Optus did not ultimately suggest that there was no need for future care. Taking into account Dr Klug's evidence that Mr Wright's psychiatric injury made him unmotivated and disorganised, and the finding that the need for future care involves housework, cleaning, washing and perhaps some shopping for food, in my view, an appropriate allowance for future care would be six hours per week.
8. Applying the 5 per cent multiplier used by his Honour (984.9) and a weekly allowance of $210, I would assess the award for future care as $206,829.

(c) Future medical treatment

1. At trial, the parties were in dispute about the quantum of future out-of-pocket expenses for medical treatment and the like. Mr Wright claimed $515 per week based on the evidence of Dr Klug. Optus submitted that an appropriate figure would be $220 per week. The main point of difference was the frequency of psychiatric consultations (either monthly or fortnightly) and the estimate of weekly medication expenses (either $300 as claimed by Mr Wright or $100 as suggested by Optus).
2. His Honour allowed one consultation with a psychiatrist per month at $350 per session; one consultation with a psychologist per month at $180; ongoing medication at $200 per week; and an additional $5,000 per annum for GP visits, prescriptions and the prospect of hospitalisation. This resulted in an annual figure of $17,260, or $331 per week.

Submissions

1. The sole complaint by Optus is that his Honour failed to discount this award for contingencies. Optus did not expand upon this submission in oral argument.

Decision

1. His Honour's assessment for future medication and medical treatment at $331 per week was at a level between the competing submissions of the parties and closer to that submitted by Optus. Optus did not challenge any particular element of his Honour's assessment. No discount for contingencies was required in the circumstances where the prognosis for improvement in Mr Wright's condition was not good. Ground 8(c) has not been made out.

(d) Future economic loss

1. Optus accepted at trial that Mr Wright most probably will remain totally incapacitated for the rest of his working life. Nonetheless, Optus submitted that damages for future economic loss should only be allowed up to the age of 60, rather than the age of 67, and that the conventional discount for vicissitudes should be increased from 15 per cent to 25 per cent to allow for the possibility that Mr Wright will improve sufficiently to return to some form of remunerative work: at [179]. His Honour rejected both of these arguments.
2. As to Mr Wright's likely retirement age, his Honour found that there was no reason to suppose that, but for the negligence of Optus, Mr Wright would have left the workforce at age 60. This was because his most likely work would have been of a clerical nature rather than hard manual work which might have forced him out of the workforce prematurely: at [180]. There is no challenge to this finding.
3. As to the possibility of Mr Wright returning to work, his Honour referred to the evidence of Dr McLeod and Dr Davies, the latter having expressed some optimism that Mr Wright, at some uncertain future time, might improve or be stabilised sufficiently to return to some form of productive work: at [181]. Taking into account Mr Wright's education, training and experience, Dr Klug's opinion was that the prospect of Mr Wright returning to appropriate employment is negligible, and he regarded him as chronically and severely disabled: at [182]. His Honour concluded that the prospect of Mr Wright returning to financially productive work was speculative: at [184].
4. His Honour calculated the award of future economic loss based on the parties' agreement that the starting point was $1,184 per week net and adopted the figure of $1,207 per week net by reference to the Furzer Crestani Handbook. Applying the relevant multiplier up to age 67 (855.7) produced a figure of $1,032,830. The deduction by his Honour of $154,924.50 to arrive at an award of $877,905.50 reflected the usual 15 per cent discount for vicissitudes.

Submissions

1. The sole complaint by Optus relates to his Honour's failure to increase the discount for contingencies from the "usual" 15 per cent to 25 per cent. No oral submissions were directed to this complaint.

Decision

1. His Honour addressed the appropriate discount for contingencies by reference to the medical evidence concerning the prospect of Mr Wright returning to work. The competing opinions of Dr Davies and Dr McLeod on the one hand, and Dr Klug on the other, have been referred to above. There is no challenge to his Honour's finding, based on the evidence of Dr Klug, that the prospect of Mr Wright returning to financially productive work was speculative.
2. The application of the usual 15 per cent discount for contingencies in the assessment of future economic loss was unexceptional and no error has been demonstrated in his Honour's approach to the evidence. Ground 8(d) has not been made out.

(e) Fund management

1. The area of dispute at trial was limited to the anterior question of whether Mr Wright was entitled to any award for fund management costs. In the event that such an award was made, the parties had agreed the basis upon which the award was to be quantified: at [194].
2. His Honour referred (at [193]) to the principle stated by the High Court in Gray v Richards (2014) 253 CLR 660; [2014] HCA 40 at [4], that where a defendant's negligence has so impaired the plaintiff's intellectual capacity as to put the plaintiff in need of assistance in managing the lump sum as awarded as damages, expense associated with obtaining that assistance is a compensable consequence of the plaintiff's injury.
3. Having reviewed the evidence of Dr Klug, Dr Davies and Mr Stuart Wright, his Honour concluded that the impairment of Mr Wright's intellectual capacity was such as to put him need of assistance in managing the lump sum awarded to him: at [194]. That finding is not challenged.
4. In calculating the award for fund management on the basis agreed between the parties, his Honour adopted the rates set out in the Furzer Crestani Handbook (page 22), which were based on the 5% tables: at [194]. Applied to an award of damages of $2,697,975 (after deducting the workers compensation payback which was assumed to be $709,373.36), his Honour assessed the amount of damages for fund management of $443,940: at [195]. It is not clear how his Honour arrived at this calculation, nor whether this award was later increased when the judgment was increased on 20 March 2015 (see [110] above).

Submissions

1. In writing, Optus submitted that his Honour failed to discount the award under this head of damages for the contingencies. No oral submissions were directed to this complaint.
2. Optus also submitted that if the judgment is reduced to any extent, then a recalculation of the damages for fund management will need to be undertaken.

Decision

1. The complaint by Optus that his Honour failed to discount this head of damages for contingencies is unfair, as no submission to this effect was made at trial. In any event, there is no merit in this complaint. As already mentioned when dealing with damages for non-economic loss, his Honour found that, even if Mr Wright's condition improved, he would be unlikely to function normally. For this reason, Mr Wright required assistance in managing the damages awarded.
2. Nonetheless, since the damages for future care should be reduced by $137,886 ($344,715 less $206,829: see [324] above), a recalculation of the award for fund management on a lesser value of damages (excluding the amount of the workers compensation payback) must be undertaken in place of the calculation by his Honour based on the figure of $2,697,975. Ground 8(e) has been made out to this limited extent and the assessment of $443,940 for fund management should be set aside.
3. Since the Court has not had the benefit of submissions on the recalculation of the award for fund management (including the components of the amended judgment of $3,922,116.09 on 20 March 2015), the parties should be directed to agree the award for fund management in accordance with the basis for calculation which was agreed at trial. In the absence of agreement, directions should be made for the exchange of short written submissions by the parties on this topic and for this head of damages to be determined by this Court on the papers.

(1) Trial

1. There is no reason for disturbing the costs order at trial in favour of Mr Wright. First, Mr Wright has maintained the finding of liability against Optus. Secondly, a number of the heads of damage for which substantial sums were awarded were not challenged on appeal. Thirdly, in respect of the five heads of damage which were challenged, Optus has achieved only limited success in reducing the damages awarded for future care and a consequential (potential) reduction in the damages awarded for fund management.

(2) Appeal

1. As to the costs in this Court, it is necessary to distinguish the outcome as against each of Mr Wright and IPA. Optus has failed against IPA on appeal and costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1.
2. As between Optus and Mr Wright, Optus has had only limited success on appeal and then only in relation to two heads of damage. Nonetheless, there is good reason to depart from the usual rule that costs should follow the event.
3. First, as Hodgson JA explained in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], "underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs".
4. Here, most of the time spent by the parties in submissions, both written and oral, was directed to liability issues, on which Optus failed. Conversely, very little time was spent by Optus on the two heads of damage on which it succeeded. The written submissions of Optus directed to these heads of damage covered about one page and the oral submissions were quite brief.
5. Secondly, the reduction of $137,886 in the award for future care is a relatively small proportion (approximately 3.5 per cent) of the amended judgment below of $3,922,116.09. While the consequential effect of this reduction on the award for fund management is yet to be calculated, it can be expected that it will not materially alter the final outcome. In monetary terms, Optus has achieved a relatively small success on appeal.
6. Thirdly, while one possible approach here is to make orders whereby each party pays a percentage of the other party's costs, as explained in Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197 at [11]: …such a regime requires the determination of both parties' solicitor-client costs, and effectively doubles the possibility for further dispute. In an area where, if one thing is clear, it is that a broad-brush approach is to be applied, the same substantive result can and in most cases should, be attained by an order that only part of a party's costs be paid by the other party.
7. In the circumstances of the present case, justice requires that Optus bear a significant proportion of Mr Wright's costs in this Court. In my view, the appropriate order would be that Optus pay 95 per cent of Mr Wright's costs in this Court.
8. As between Optus and IPA, Optus has failed on appeal and there is no reason why costs should not follow the event: UCPR, r 42.1.

Conclusion and Orders

1. The appeal by Optus against the judgment in favour of Mr Wright has failed, other than for a small reduction in the assessment of damages for future care and a consequential (potential) reduction in the sum awarded for fund management.
2. The judgment in favour of Mr Wright should be set aside and judgment entered for $3,340,290 (being $3,922,116 less $137,886, less $443,940). There should also be judgment in favour of Mr Wright for damages for fund management, with a direction that the parties agree the amount of such damages in accordance with the basis of calculation of fund management costs agreed at trial, and, in the absence of agreement, those damages be determined by this Court following receipt of submissions by the parties as to the appropriate calculation. Optus should pay 95 per cent of Mr Wright's costs in this Court.
3. The appeal by Optus against IPA in respect of the declaration made under s 151Z(1)(d) of the Workers Compensation Act has been unsuccessful. Optus should pay IPA's costs in this Court.
4. Accordingly, I would propose the following orders: 1. Appeal against the first respondent allowed in part only - as to grounds 8(b) and (e). 2. Appeal dismissed as against the second respondent. 3. Set aside Order 1 made by the primary judge on 20 March 2015 and, in place, order: 1. judgment for the plaintiff against the first defendant in the sum of $3,340,290; and 2. in addition to (a) above, judgment for the plaintiff against the first defendant for damages for fund management, such amount to be agreed between the parties in accordance with the direction in (4) below, and in the absence of agreement, determined by the Court following receipt of the submissions referred to in (5) below. 1. The parties are directed to agree the calculation of the sum to be awarded for fund management on the value of damages awarded by this Court (excluding the amount in respect of the appropriate workers compensation payback) by adopting the rates at page 22 of the Furzer Crestani Handbook and provide the Court with a consent order within 10 days of these reasons. 2. In the absence of agreement between the parties as contemplated in (4) above, the parties are directed to provide short written submissions not exceeding three pages within 20 days of these reasons, setting out their proposed orders and argument in support of their respective calculations of the sum to be awarded as damages for fund management. The Court will determine any dispute on the papers. 3. Appellant to pay 95 per cent of the first respondent's costs of the appeal. 4. Appellant to pay the second respondent's costs of the appeal.

Endnotes

1. Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 ("Wright"). Paragraph references are taken from Caselaw.
2. Statement, 15 March 2001, p 3.
3. Statement, p 4.
4. Statement, Trevor Williams, 15 March 2001, pp 1-2.
5. Tcpt, pp 209-210.
6. Statement, p 3.
7. Statement, p 3.
8. Tcpt, p 210(20).
9. Tcpt, p 211(5).
10. Tcpt, p 213(30).
11. Wright at [46].
12. Wright at [49].
13. Statement, Paul Dee, 15 March 2001, p 1.
14. Statement, p 2.
15. Statement, p 2.
16. Statement, p 2-3.
17. Statement, pp 3-4.
18. Tcpt, p 239(15).
19. Plaintiff's further evidentiary statement, 29 May 2013, par 35.
20. Tcpt, p 30(45).
21. Police Statement, Glenn Stuart Wright, 19 March 2001, par 12; Tcpt, pp 55, 64-65.
22. Tcpt, p 55(40); the plaintiff's statement of 2/9/10 was not tendered, but became MFI 2: Tcpt, p 56(5).
23. Tcpt, p 55(45).
24. Wright at [93]-[109].
25. Civil Liability Act, s 32.
26. All definitions in Civil Liability Act, s 27.
27. Wright at [83].
28. Wright at [83].
29. But see Civil Liability Act, ss 30, 31 and 32(2). It is true that the judge said at one point that s 32(3), dealing with consequential mental harm, was relevant, but it was not applied and the reference appears to have been a mistake.
30. Civil Liability Act, Sch 1, Pt 3, cl 6(1).
31. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [140] (McHugh J).
32. Rogers v Whitaker (1992) 175 CLR 479 at 489 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); Wallace v Kam (2012) 250 CLR 375; [2013] HCA 19 at [8] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
33. Wright at [77].
34. Wright at [79], quoting Gummow J in Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [49] (emphasis by Gummow J).
35. Wright at [80].
36. (2000) 205 CLR 254; [2000] HCA 61.
37. Modbury Triangle at [26]; Wright at [70]; references in original omitted and not including emphasis added by the trial judge.
38. Modbury Triangle at [110]-[111]; Wright at [70]; references in original omitted and not including emphasis added by the trial judge.
39. Wright at [116].
40. (2003) 65 NSWLR 1; [2003] NSWCA 47 at [47].
41. (2001) 52 NSWLR 420; [2001] NSWCA 112.
42. Reference was included to Kondis v State Transport Authority (1984) 154 CLR 672 at 686 and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.
43. Christie at [46]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.
44. Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 at [23]-[27] (Gleeson CJ), [155]-[156] (Hayne J) and [187]-[188] (Callinan J); Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 at [64] (Davies, Gleeson and Edelman JJ).
45. NSW v Lepore at [19].
46. NSW v Lepore at [22].
47. Wright at [86].
48. Wright at [87].
49. Wright at [88], emphasis added.
50. (1970) 125 CLR 383.
51. Wright at [91].
52. Wright at [113], extracted below.
53. Wright at [113].
54. [1972] AC 153 at [171] (Lord Reid) and [187] (Viscount Dilhorne).
55. (2006) 67 NSWLR 237; [2006] NSWCA 270.
56. Wright at [116].
57. (2001) 207 CLR 21; [2001] HCA 44 at [42].
58. The judge then continued with the passage set out at [41] above.
59. Wright at [118].
60. (2010) 241 CLR 60; [2010] HCA 22.
61. Wicks at [22].
62. Wicks at [23] and [27]-[29].
63. Wicks at [30].
64. Tame at [33] and [41] (Gleeson CJ), [65]-[66] (Gaudron J), [187]-[189] and [213] (Gummow and Kirby JJ).
65. Wright at [91].
66. Wright at [77], in the passage set out at [37] above.
67. Wright at [95].
68. Wright at [117].
69. Wright at [118].
70. Wright at [127].
71. Tcpt, 29/03/16, p 28(25) and (38).
72. Tcpt, p 30(15).
73. Tcpt, p 33(25).
74. Tcpt, p 33(43); see also p 41(25).
75. Wright at [96]-[104].
76. Wright at [97].
77. Wright at [99].
78. Tcpt, p 281(50).
79. Wright at [99].
80. Wright at [60].
81. Wright at [100].
82. Wright at [101].
83. Wright at [102]-[104].
84. Tcpt, pp 290(45)-291(3).
85. Wright at [104].
86. Wright at [118].
87. Wright at [52]-[54].
88. Wright at [59].
89. Wright at [59].
90. Wright at [59].
91. See [24] and [27] above.
92. Amended statement of claim, par 13.3.
93. See [3]-[23] above. 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: 17 February 2017