Wright by his tutor Wright v Optus Administration Pty Limited

Supreme Court of NSW|2013-11-22|Before: Campbell J

e Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Chapman v Hearse [1961] HCA 46; 106 CLR 112; Coca Cola Amatil NSW Pty Ltd v Pareezer [2006] NSW CA 45; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Dib Group Pty Ltd T/as Hill & Co. v Cole [2009] NSWCA 210; Director General Department of Education & Training v MT [2006] NSWCA 270; Doubleday & Kelly [2005] NSWCA 151; English v Rogers [2005] NSWCA 327; Estate of the late MT Mutton by its Executors & R W Mutton T/as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340; Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; Jaensch v Coffey [1984] HCA 52; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; M v The Queen (1994) 181 CLR 487; McLean v Tedman (1984) 155 CLR 306; Modbury Triangle Shopping Centre Pty v Anzil [2000] HCA 61; 205 CLR 254; North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Roads & Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330; Shaw v Thomas [2010] NSWCA 16; Smith v Leurs (1945) 70 CLR 256; Stephan v Pacesetter Cleaning Services Pty Ltd [1995] NSWCA 455; 12 NSWCCR 19; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16; Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSW LR 1; Wallace v Kam [2013] HCA 19; 250 CLR 375; White v Johnston [2015] NSWCA 18 Wright v Optus Administration (No 6) [2013] NSWSC 1719; Wyong Shire Council v Shirt [1980] HCA 12. Category: Principal judgment Parties: Glenn Wright by his Tutor James Stuart Wright (plaintiff) Representation: Counsel: R A Cavanagh SC with J Callaway (plaintiff) J Simpkins SC with D Villa (defendant) W Reynolds (cross-defendant)

Solicitors: Firths The Compensation Lawyers (plaintiff) Hunt & Hunt (defendant) Sparke Helmore Lawyers (cross-defendant) File Number(s): 2009/297493

Judgment

I apologise to the parties for the long delay in giving judgment. Glen Wright suffered personal injury and mental harm as a result of being assaulted by Nathaniel George on 15 March 2001 when Nathaniel George attempted to murder him by throwing him off a fourth floor balcony at their place of work in Gordon, New South Wales.
Mr Wright and George were undertaking training given by Optus Administration Pty Ltd ("Optus") for work in Optus' call centre. They were unknown to each other prior to commencing the training a few days earlier. They do not seem to have formed any relationship either of amity or animosity. During the short time the course had been running they had had very little contact with each other. They had had a brief conversation on the morning of 15 March 2001 walking from Gordon railway station towards Optus' premises. They may have had prior minor conversations during refreshment breaks in the course.
The evidence (see especially Exhibit 1D4) established that George had formed a desire to kill someone. He had fixed that desire on another person the previous day. The intended victim was leaning against the rail of the fourth floor balcony but walked away before George could put his criminal intent into action. It seems that later that night at home his murderous intent settled on Mr Wright. After his attempt on Mr Wright he told Mr Paul Dee, a team leader employed by Optus (Exhibit 1D4, p 3[6]), "I thought about it all last night and only got about 3 hours sleep". Statements to the same effect were made to investigating police officers (eg Exhibit 1D8).
George's attempt on Mr Wright's life was foiled by the intervention of Mr Dee, who was able to physically restrain George, but not before he had assaulted Mr Wright.
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.

The proceedings

Mr Wright is suing Optus for damages for the harm suffered by him as a result of George's attack. His claim invokes that category of negligence discussed in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1. His case is that at the time of the attack, Optus owed him a duty of care analogous to that owed by an employer to an employee. Mr Wright was employed by IPA Personnel Pty Ltd, the cross-defendant ("IPA"). IPA carried on business as a labour hire company. Mr Wright says his services were lent by IPA to Optus pursuant to a contract between them and while undertaking the training course, he was working under the direction, supervision and control of the latter. His claim for damages against IPA under Division 3, Part 5 of the Workers Compensation Act 1978 (NSW)(WCA) was discontinued. IPA remained as a cross-defendant, and cross-claimant.
Optus' cross-claim against IPA is for contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (1946 Act). Contractual claims arising from the written contract between them (Exhibit HH) have not been pressed: 387.5T; 481.45-418.45-419.10T; 449.45. IPA's cross-claim is for an indemnity under s 151Z(1)(d) WCA for workers compensation paid to, for or on behalf of Mr Wright.
It is worth recounting at this stage that George was directly employed by a different labour hire company, Drake International Pty Ltd (Exhibit HD1; Exhibit EE p 2[6] and pp 3-4[13] - [15]). Claims against Drake have not been pressed.

The issues

Optus deny that it owed Mr Wright a TNT v Christie type duty. It says the only relevant relationship between them was that occupier of the premises and lawful entrant and that the outcome of the case is governed by Smith v Leurs (1945) 70 CLR 256 at 262 and Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, given Mr Wright was clearly the victim of a criminal offence perpetrated by George.
Whatever decision is made about the existence, nature and scope of any duty owed, Optus also argues that the evidence does not establish negligence on its part, which question is to be determined in accordance with the provisions of s 5B Civil Liability Act 2002 (NSW) (CLA); and if it is wrong about that, Mr Wright has not proved legal causation in accordance with s 5D CLA. Alternatively, contributory negligence is relied upon, and as I have said, contribution is sought from IPA.
There is no issue about the nature of the harm suffered by Mr Wright. The extent of it is in issue, partly anyway. The entitlement to allowances for many of the heads of damage claimed is not in contest. Some matters have been agreed as I will indicate when dealing with the quantum issues; others are denied or at least contested.

The facts

The primary facts are not seriously in contest. There is an issue about some details which may be significant. One such matter is whether Mr Wright was directed, in the sense of being ordered, by his trainer, Ms Natalie Hedges (Exhibit B), to go to the roof to talk to George immediately before the attack. Optus says Ms Hedges merely made a request about that which Mr Wright was free to refuse. He was, on its case, a volunteer in every sense. To the extent to which Mr Wright's evidence is different Optus argues that I should reject it. It says that there are inconsistencies in his evidence and his evidence was given 12 years after the event and after he had been required to give many accounts of these events over the years resulting in discrepancies and inconsistencies undermining his reliability as a witness: M v The Queen (1994) 181 CLR 487 at 534 (McHugh J). I will resolve this issue in the course of recounting the facts, which I am satisfied, have been established by the evidence.
Another factual issue, important for identifying the nature of the duty owed by Optus to Mr Wright, is whether the latter undertook the training course under the "Personnel Agency Agreement" between IPA and Optus. And I will turn to that issue first.

The applicability of the personnel agency agreement

As I have recounted already, Exhibit HH is a signed agreement between Optus and IPA. Optus says that the evidence does not establish that Mr Wright was placed in the training course under that agreement. Essentially, Mr JB Simpkins SC and Mr DF Villa, who appear for Optus, argue that the documentary evidence tendered in the plaintiff's case does not demonstrate compliance with that agreement and I should not be satisfied that Mr Wright was placed in the training course under it.
A worker placed under the agreement is defined as a "Key Person". The provision of a Key Person by IPA to Optus is referred to in the written contract as the provision of "Services". The written contract broadly governs the ongoing relationship between IPA and Optus; however, the force of Optus' argument is that Exhibit HH contemplates the creation of a separate "Services Contract" in respect of the provision of each Key Person. Each service contract is said to consist of (Clause 1 Exhibit HH): The purchase order issued by Optus; and The terms and conditions of this agreement. It is the absence of a purchase order issued by Optus from the evidence before me that underpins Optus' argument.
Clause 2 of Exhibit HH deals with the engagement of IPA and the obligations of Optus. If the ordering procedure set out in Clause 3 is complied with, IPA is obliged to provide either temporary or permanent staff for Optus. It is contemplated that Key Persons provided as temporary staff may convert "to roles as permanent staff". Different rates of remuneration of IPA are specified in schedules to the contract. Normally, if IPA pays "its Key Persons directly" Optus will reimburses IPA (Clause 2.3).
The formation of an individual service contract is proceeded by a written request by Optus for the provision of services which sets out the criteria for the Key Person to be provided. IPA is obliged to ensure it understands the request and if necessary seek clarification before locating a Key Person who it believes meets Optus' criteria. Optus reserves the right to interview and refuse any Key Person provided by IPA. When IPA provides the Key Person, Optus issues a "Purchase Order" to IPA specifying the services and applicable rate. If the category of staff is not covered by an agreed rate, IPA and Optus are to negotiate in good faith on the appropriate rate. Optus may request a quote before engagement.
Each purchase order is required to have the characteristics set out in Clause 3.7 of Exhibit HH, which need not be recited here. Once the Service Contract is created it cannot be varied unilaterally by any document issued by IPA.
By Clause 5 of the agreement IPA is required to enter into a legally binding contract with each Key Person requiring the Key Person, inter alia, to carry out the work he or she was provided to Optus to perform to the best of his or her ability and "in accordance with all reasonable directions given by Optus from time to time". This contract is to contain a promise from the Key Person to conform to hours of work reasonably required by Optus for the provision of the services and to substantially devote the whole of his or her time and attention to the performance of the work during those hours.
By Clause 5.4 the obligation to perform the work is personal to the Key Person: no one else may perform it in his or her stead.
Invoices issued by IPA for payment are required to be accompanied by copies of Optus' time sheet "for each Key Person involved in performing the services" (Clause 8).
It is accurate to say that no written request or purchase order as contemplated by Clause 3 of the contract is in evidence. However, Exhibit JJ is IPA's tax invoice directed to Optus in respect of the provision of Mr Wright to work in the call centre during the week ending 18 March 2001. It makes reference to a purchase order number, ORD 19927. Exhibit KK is a printout of IPA's payroll transaction report relating to Mr Wright, inter alia for the week ending 18 March 2011. The invoice is in the sum of $864 made up of $786 and GST of $78.60. The payroll report shows that Mr Wright's total pay for the week ending 18 March 2001 was $600, but that the "total bill" was $786. Exhibit LL shows that Optus paid the invoice for Mr Wright's services (invoice no. 80518) on 22 March 2001.
In his statement (Exhibit EE) Mr Trevor Williams, a team leader employed by Optus at the Gordon premises described Ms Hedges as "holding a training program for new inductees. Some of the inductees are from temp agencies" (sic).
In Exhibit B, Ms Hedges said ([4] - [5]): On Thursday 15th March, 2011 I was at the Optus building at 810 Pacific Highway, Gordon, which is my usual place of work. I was conducting a training group of thirteen customer services representatives, who had been supplied to Optus by personnel agencies. The trainees are employed by the agency working for Optus on a three month contract basis, with the option of full time employment at the end of that period. For the training period, the trainees attend the class environment for the term of the training course which is a three and a half week course. The personal details of each of the trainees are recorded on a sign-on sheet that, is like an attendance role (sic).
In his further evidential statement (Exhibit A1) Mr Wright said that he found work with IPA on 12 February 2001, and that he was sent to the training course with Optus at Gordon. He also states that he undertook the course with the intention of working full time with Optus on its conclusion (see also Exhibit A2 [5]).
The parol evidence rule precludes me from taking into account the subjective understanding of the lay witnesses as to the existence and nature of the legal relationship amongst the parties, and I put these accounts to one side. However, from Exhibits CC, HH, JJ, KK and LL, I infer that Mr Wright was working at Optus's Gordon premises undertaking the training course pursuant to a "Services Contract" brought into existence in accordance with the provisions of Clause 3 of Exhibit HH and the contract was formed by Optus issuing a purchase order to IPA as contemplated by Clause 3. Although it is not in evidence that purchase order was identified by the number ORD 19927. There was no evidence of any other contract having been formed between IPA and Optus for the provision of Mr Wright's services.
If I am wrong in the inference I have drawn about the issuing of a purchase order, then I would hold that the issue of IPA's invoice and Optus' payment of it constitute an implied contract for the provision of Mr Wright's labour to Optus requiring him to work for Optus and under its control: Stephan v Pacesetter Cleaning Services Pty Ltd [1995] NSWCA 455; 12 NSWCCR 19; Bootle v Barclay [2013] NSWCA 142 at [65] - [67] (Sackville AJA).
From my finding that Mr Wright was working for Optus under a contract between it and IPA formed in accordance with Clause 3 of the Personnel Agency Agreement, it follows that whilst he 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.

The employment of Mr George

It is common ground that George's services were provided by Drake. It entered into what appears to be a personnel agency agreement in identical terms to Exhibit HH on 16 November 2000 (Exhibit XD1). Only every second page of the printed written contract is reproduced in the photocopy tendered. This is, no doubt, because of a glitch in photocopying. Although it runs to 18 pages, and the IPA agreement to 17, the difference in length appears to be accounted for by differences in formatting only. I infer that George's services were provided to Optus by Drake pursuant to a Services Contract made under its personnel agency agreement. Importantly, he had no legal relationship whatsoever with IPA; IPA had no authority over him in any way.

The scene of the attack

I infer that the Optus building has four levels. Mr Williams referred to Level 4 where the attack took place as "the roof". Level 1 is the ground floor with the reception area and Ms Hedges' training room. There is no evidence about what is on Level 2. Level 3 includes the administrative office where the team leaders referred to (Mr Williams and Mr Dee) had their desks. Level 4 (or the roof) is described as a recreation area with a balcony. I infer that the balcony is edged by a railing. From a sketch attached by Mr Dee to Exhibit 1D4, the balcony appears to run around all four sides of the outer perimeter of the building. Within the enclosed area of Level 4 there is a recreation room and a number of training rooms.

The events of 15 March 2001

There is much to be said for Optus's argument that the most reliable evidence about the events of 15 March 2001 is to found in the contemporaneous statements obtained from witnesses by investigating police on and soon after that day. But it must be borne in mind that police statements are obtained for the purpose of investigating serious crime. Not every issue relevant to the evaluation of a case of negligence is likely to be dealt with for the simple reason that such matters may not be relevant for police purposes. Moreover, the events which occurred were of a memorable type. Most witnesses would retain a vivid recall. It should also be pointed out that notwithstanding "the everyday experience of the courts" referred to by McHugh J in M v the Queen at [534] (referred to at [12] above), it is my duty to attempt to make necessary findings about what happened on the balance of probabilities, from the evidence actually led in the proceedings from the eyewitnesses.
Mr Wright saw George when they alighted from the same train at Gordon railway station at about 8:25 am. Mr Wright was concerned he might be late as he wanted to buy medicine over the counter from a pharmacy for flu symptoms he was suffering. He asked George to tell Ms Hedges that he might be "5 minutes late". George agreed to this. Nothing untoward passed between them at this time.
It seems that George was the one who was 3 minutes late as recorded by Ms Hedges (Exhibit B, p 2[7]).
George absented himself from the training room without permission at about 9:15 am. This is not unusual as trainees were permitted to leave to use the toilet without permission (Exhibit A p 3[10]). However, Ms Hedges noted that he had not returned by 9:30 am. I infer this was unusual because she looked at her watch to check how long he had been gone for (Exhibit B p 2 [8]). I infer Ms Hedges was starting to become concerned about George's absence.
Not long after George's departure another trainee handed Mr Wright a note from him which said, "Tell Glen 2 to come with me" (sic). Mr Wright ignored this note.
Soon after Ms Hedges noticed another trainee named Beau re-enter the classroom. She had not seen him leave. She noticed him go over to Mr Wright and whisper something in his ear.
Mr Wright's statement (Exhibit A1 p 3[11]) is that Beau said, "Nathaniel wants to see you upstairs". When Mr Wright asked "Why?" Beau said, "He just wants you to go upstairs". Mr Wright formed the impression that this was said "with a sense of urgency". Mr Wright ignored this request too. Ms Hedges, who did not know what had been said, formed the impression that Mr Wright looked annoyed at this and "sort of just waived Beau off".
She decided she should intervene. She called the class to attention "and asked whether there was something I should know?" (Exhibit B p 2[9]). She was told, "No". Not satisfied with this response she set the trainees work to do on their computers and left to look for George. Apparently she did not ask the class if anyone knew where he was.
She looked in the foyer and then outside in case he had gone for a "smoke". He was not there so she proceeded to the roof. She said, "I found [George] on level 4 wandering around on the balcony" (Exhibit B p 3[7]).
While Ms Hedges was still in the recreation room George came inside. She approached him and asked, "What are you doing?" He did not respond, but walked past her and looked up at the television, which was on. She called his name several times and he did not respond. She said "He didn't look like he knew I was even there". He did not respond to requests that he return to the training room, or that he should come to sit down. Ms Hedges asked George several times, including in a loud voice, "What's wrong" without response. She said, "He appeared completely incoherent". She formed the view that he may have been on drugs because of his non-responsiveness and her observation that his pupils were "like pinpoints". She thought it inappropriate to inquire about that of him. George then said, "Where's Glen?" referring to Mr Wright. When he said this he looked at Ms Hedges, but then resumed looking at the television, swaying. Ms Hedges waived her hand in front of George's eyes saying, "Nathaniel, can you tell me what's wrong" without any acknowledgment by him.
Three other employees entered the recreation room. George was still swaying and Ms Hedges was getting "really worried". She asked the girls to "watch him" while she sought help.
The person from whom Ms Hedges sought help was Mr Williams. When she arrived at his desk on the third floor he thought she appeared "to be quite distraught. She was shaking and crying." (Exhibit C p 1-2[5]). Ms Hedges gave Mr Williams an account of what had happened on the roof including her view that George was on drugs.
Mr Williams obviously formed the view that George presented a risk to the personal safety of others, based upon Ms Hedges' description, because he decided he needed assistance to deal with the situation on the roof. At (209.50 - 210.45T) he gave evidence of enlisting the additional assistance of Mr Dee saying: Q Why did you go and speak to Paul Dee? A Well, he was another team leader, he was situated closest to me, obviously for my own safety, and basically to have some else there. In cross-examination (213.40T) he gave the following evidence: Q And when you were on the roof and speaking to [George] did you have any fear for your own personal safety? A No, because I had Paul there, and like I said, he was very calm, very relaxed, very quiet. On further questioning Mr Williams clarified that although he found George "very calm" when he saw him on the roof he continued to pace up and down which Mr Williams found "unusual". It is worth recording that Mr Dee presented as a very fit looking man who said his height was 5ft and 10 inches and that in March 2001 he weighed 80 kilograms. He gave evidence that he takes care about his level of fitness (239.30T). At the time Mr Williams first approached Mr Dee he was on the phone. Whilst waiting for him to finish the call he had one of his staff make inquiries about the agency which employed George.
When Mr Williams, Mr Dee and Ms Hedges arrived on the roof George was on the balcony pacing backwards and forwards with his head down. Mr Williams formed the impression that he was confused. He refused the offer of tea or coffee and asked for Mr Wright. He was non responsive to other questions.
Mr Dee (Exhibit 1D4 p 2[4]) said that George ignored his questions. He followed George's pacing "and every time I was close to him he would change directions". Eventually George said, "I'm waiting for Glen, I want to see Glen". When Mr Dee asked, "who's Glen" George did not answer and kept pacing. Mr Dee said "he was fidgeting with his hands and seemed jittery. He wouldn't make eye contact with me and he appeared to be in a trance-like state". (Exhibit 1D4 p 2[4]).
As I have said, Mr Williams said that Mr George appeared "very calm". I do not think this is correct. That assessment was absent from his police statement. And it seems to me to be inconsistent with his own description of George's behaviour contained in the statement and particularly with Mr Dee's description. When they returned to the balcony Ms Hedges said George was wondering aimlessly, mumbling something (Exhibit B p 4[10]).
In Exhibit C, Mr Williams said that he and Mr Dee stood on either side of George and as George paced up and down they attempted to steer him away from the railing. He added: I decided that I had better let some people in the company know what was happening.
In evidence Mr Williams said "…. After walking with him for quite some time… I felt it was safe to leave". However, at the time he tried to steer George away from the railing he had been concerned "he may try and hurt himself, or jump off the roof" (218.30 - .35T).
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 (Exhibit C p 3[11]).
Before leaving the roof Mr Williams had a further conversation with Ms Hedges. Ms Hedges told Mr Williams that she believed "Glen" 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 George's (he also assumed Mr Wright might have given him drugs) and in response to Ms Hedges' query directed her to bring Mr Wright up to the roof. Mr Williams "certainly wouldn't have sent for him", but for his wrong assumption. That, in his view, "would have seemed quite strange": (210.35T).
As I have said, there is an issue about whether Mr Wright was ordered to come to the roof or whether he was a volunteer. Ms Hedges simply says: I went back to my room on the ground floor and found Glen. I sent the rest of my group on a break. Glen and I went up to level 4 and up onto the balcony. (Exhibit B p 4[11]). (The numbering on Ms Hedges' police statement is erratic.)
In evidence, Mr Wright said that Ms Hedges told him George was on the roof pacing backwards and forwards appeared to be on drugs and was asking for him. He said that she appeared "rattled, flustered and quite frightened". I accept this, especially given Mr Williams description (see [42] above). Mr Wright wondered how could he help "when [he] had no clue as to what was actually happening". Ms Hedges said something like "we'll go up to the roof and see what he wants and go from there". In the lift Ms Hedges again referred to him being on drugs and asked Mr Wright "is he on drugs?" He said "I don't know, I don't know anything about him". (30.45 - 31.25T). See also Exhibit A1 p. 5 [34] - [38]. In his evidential statement he said he felt very reluctant to go and "felt pressured to go". He said: At that stage I felt pressured to go with Ms Hedges as it was the third time I had been asked to see Mr George and I was now being asked by the trainer to accompany her. In his police statement made on 19 March 2001, (Exhibit A2 p 3[12]) Mr Wright gave this account: [When Ms Hedges returned to the room] she appeared to be in a panicked state. She sent our training group on a break. The other members of the group then left the room. Natalie then told me something (Natalie said "can you come with me.") I went with her in an elevator to level 4 of the building. In the elevator Natalie spoke to me, (she said, "he's up on the roof, he's lost it and he's asking for you, is he on drugs?) I said "I've never met the guy before Monday, I don't know".
Mr Wright was closely cross-examined about whether the words "why don't we go and see what it's about and take it from there" constituted a lawful instruction which he had no choice but to accept (77.10 - .40T). He agreed Ms Hedges did not say "you must come with me" (77.40T). But he denied the words actually spoken were "a request by her for help". He "took it as an instruction" (77.45T).
He was also cross-examined on an earlier version of his evidentiary statement made in 2010 (MFI 2). The cross-examiner demonstrated that details in that statement were inconsistent with Exhibit A2 and his oral testimony. In particular in [10] of MFI 2 Mr Wright said he told Ms Hedges he did not want to go to the fourth floor (68.50 - 69.5T). He agreed there was no mention of any initial refusal to go to the roof in his police statement (70.5T). He said his statement that he didn't see how he could help expressed the idea "that I didn't want to go up to the roof" (70.20T). He agreed that he did not specifically say "I don't want to go to the fourth floor" (70.25T); "not in those specific words" (70.35T).
Because Optus saw this as a critical issue there was a deal of other cross-examination about and around it. I do not think it necessary to descend into the details. I interpolate that I also accept that it was shown that Mr Wright's evidence about the absence of any pre-injury anxiety symptoms was inaccurate and that he had sought medical attention and received treatment for mental health issues of different kinds from the age of 14 (47.30T - 50.10T). I am asked to take these inconsistencies into account in assessing the reliability of Mr Wright's account.
I accept that there are inconsistencies in Mr Wright's account of his pre-injury mental health. But I do not regard those inconsistencies as emblematic of dishonesty. I regard him as an honest witness. Clearly, however, his failure to recall the detail of the pre-injury symptoms recorded in contemporaneous documents makes his account of this medical history unreliable. It does not follow that his evidence generally is unreliable.
There are differences in the various accounts he has given about the detail of him complying with Ms Hedges' request that he accompany her to the roof to talk to George. These differences, however, are errors of detail of a kind which do not substantially undermine his reliability let alone his honesty. Making all due allowance, as I think appropriate, for his mental state, his difficulty in giving a straightforward answer to some questions in cross-examination does not bespeak evasiveness. Rather, his apparent difficulty as a witness was due to a tendency to say too much by way of explanation rather than, as lawyers prefer, providing a direct answer to the questions asked.
It is clear that he was not asserting that Ms Hedges was "ordering" him to accompany her to the roof. Nor was he asserting that at any time he in plain terms sought to refuse to go. In my view, the correct finding is that Ms Hedges wanted him to accompany her to the roof and sought to obtain his co-operation by a degree of cajoling (let's see what he wants and take it from there). I also find that he succumbed to that cajoling although he would have preferred not to get involved. He at no time frankly declined to co-operate. But, given that Ms Hedges was in a supervisory position over him, I accept that he felt a degree of compulsion in complying with her request. He did not volunteer to help. I accept he expressed doubts that he could be of any assistance. His reluctance to become involved, in my view, is amply demonstrated by his undisputed evidence that he refused to have anything to do with George's earlier approaches to him by note and the intercession of other fellow trainees. His refusal to comply with those earlier requests is corroborated by Ms Hedges' statement.
In any event, in the context of this claim for damages for negligence, the question is not whether he was ordered to help by Ms Hedges on the one hand, or whether he freely chose to assist on the other; the real question is whether it was reasonable, as between him and Optus, in the legal context of his claim for damages, for him to comply with a request to assist made of him by the persons Optus had placed over him, notwithstanding that it may have been open to him to refuse: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 11. Given the nature of the legal relationship amongst Optus, IPA and Mr Wright discussed above, I conclude that it was reasonable in that sense. I also find 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. Although in a sense he went voluntarily, he also went reluctantly.
The 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. When they came out of the lift, Mr Williams correctly assumed that Mr Wright was the person with Ms Hedges. He continued to labour under his erroneous assumption that Mr Wright and George were friends and he must have continued to believe that George may have been under the influence of some illegal drug because he asked Mr Wright whether he had "given [George] anything" (Exhibit C p 3[11]); Ms Hedges says Mr Williams "had left" when she and Mr Wright got to the balcony. But I prefer Mr Williams' version. Like Ms Hedges', Mr Williams' statement to the police was made on the day of the incident. It is not unusual for there to be differences between apparently honest independent witnesses. That too, forms part of "the everyday experience of the courts". It just seems to me that he is unlikely to have been in error about that detail. Ms Hedges was by all accounts quite upset, and was doubtless further upset when the attack which she witnessed occurred. She was involved in the whole episode from start to finish and all of these circumstances together make it more likely that this small detail would have slipped her mind than the possibility that Mr Williams might have had a false recollection of an exchange with Mr Wright which did not take place.
Mr Williams then left and returned to his desk to make his report to his superiors leaving the situation under the control of Mr Dee and Ms Hedges. The accounts of Mr Wright, Ms Hedges and Mr Dee about what happened next are substantially consistent with one another.
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 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 (Exhibit A2 p 4[13]). 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" (Exhibit 1D4 p 2[5]). 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" (84.40T). 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.
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.
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 (p 4-5 [13] to [14]) 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.
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.
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 (Exhibit B p 6[12]). 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".
After Mr Williams returned to the third floor he made several phone calls. I infer he contacted a superior within Optus, probably Cathy Taylor, who directed him to make a complaint to Drake. He called Drake. He obviously requested them to send someone to get George because two females from Drake attended the premises very soon after the attack. I infer that they came in response to a call made by Mr Williams before he had had any knowledge of George's attack on Mr Wright (see Exhibit C pp 3 - 4[13] - [15]). When Mr Dee told him what had happened he again contacted Ms Taylor and a decision was then made to call the police.

The duty of care owed by Optus to Mr Wright

Optus says it owes no duty to Mr Wright except that owed by an occupier to a lawful entrant and Modbury is authority for the general principle that an occupier is not liable for injury to lawful entrants caused by the criminal acts of third parties on the occupier's land: see also Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Rep 81 - 636.
Modbury derives from Smith v Leurs (1945) 70 CLR 256 at 262 where Dixon J (as his Honour then was) said: It is … exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. (Emphasis added.)
As this dictum implies, exceptions to the Modbury principle fall into clearly recognised and established categories. In Modbury itself Gleeson CJ said at 265[26]: Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil or bailor and bailee. (Emphasis added; footnotes omitted) Hayne J put it this way (at 292 [110 - 111]): 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. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child (Emphasis added; footnotes omitted). (Gaudron J agreed with the judgments of each of the Chief Justice and Hayne J)
In Ashrafinia, Heydon JA (as his Honour then was) said at [64]: There is ample authority illustrating the "relationships" to which the High Court referred in which a party has a duty to protect another from the criminal conduct of a third. (a) Employers must take reasonable care to protect their employees from the criminal acts of third parties whether on premises occupied by the employer … or in other places where the employee is carrying out duties for the employer …. This duty of employers flows from their duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding employees from unreasonable risks in the methods by which work is undertaken. …. These exceptions can be tied back to the control criterion which in significant measure underlies the main principle. The relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee's interests inter alia because of the control which the employer has over the incidents of the relationship. (Citations omitted).
The employment exception to the Modbury principle extends by analogy to the TNT v Christie category: English v Rogers [2005] NSWCA 327; Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45. In the latter case Young CJ in Eq (as his Honour then was) said at [71]: One class of case which can involve a special relationship where the duty to protect against violence in the workplace will arise is where the injured person is not, strictly speaking, an employee, but is so under the control of another person that they take up a relationship that is extremely close to that of employer and employee.
Basten JA reviewed this category of case in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167. His Honour stated the following principle (at [139]): The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from: (a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker; (b) the condition of plant or premises under the control of the third party, or (c) the activities of others on the site, generally for the purposes of the third party's undertaking or business. Christie fell into the first category, because TNT "exercised day-to-day control over the plaintiff's work activities, treating him to all intents and purposes the same as its employees as regards work on the factory floor": TNT v Christie at [41] (Mason P).
On the finding I have made at [28] this case falls into that same category. Indeed, the same case may fall into more than one category: see Pareezer at [72] - [73]. That passage summarises English at [82] where Mason P identified two overlapping bases for the existence of a duty owed by the hotel to the employee of its independent cleaning contractor: 1. The hotel's obligation to co-ordinate the activities of employees attracting the principles discussed in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, and Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; and 2. The TNT v Christie category. Stevens and Leighton Contractors fall into Basten JA's third category. In my judgment, that category is also applicable here as Optus' operations carried out at its Gordon site included the need to co-ordinate employees of more than one temp agency as well those of its own employees. Indeed, in the very circumstances in which Mr Wright was injured, Optus was supposed to be coordinating an employee of IPA, Mr Wright; an employee of Drake, George; and its own employees, Mr Williams, Mr Dee and Ms Hedges. As George performed work for Optus under the same type of arrangement as Mr Wright it is also correct to say that Optus had power to assert control over George as discussed by Hayne J in Modbury.
In English at [87] Mason P said: The relationship between the Hotel and the cleaners was, in my view, so closely analogous to that of an employer, at least as regards safety in the workplace, as to generate a duty of care that was not trumped by glib citation of Modbury.
The same is true here. I reject Optus' submission that the duty question in the present case is governed by the Modbury principle. Rather this case falls into the employer/employee exception to that principle as explained in English and Pareezer. Content of the duty owed
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. The question of whether there was such a risk and whether a reasonable quasi-employer in the position of Optus would have taken precautions against it will be dealt with when I consider the question of breach.
Moreover, the nature and content of the duty of care is informed by the additional salient feature that each of George and Mr Wright were employed to work for Optus by different agencies. This circumstance required Optus to exercise reasonable care in co-ordinating their interactions for the avoidance of a risk that one may cause the other harm.
The first qualification to this formulation arises out of the judgment of Gummow J in Roads & Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 347 [49] ff, a road authority case. His Honour said: … one thing is fundamental: while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care (original emphasis). This principle must be borne firmly in mind throughout, but it is well nonetheless to remember, as Heydon JA said in Ashrafinia at [65] the law is "exceptionally solicitous for the employee's interests". As the plurality said in McLean v Tedman (1984) 155 CLR 306 at 313: Accident prevention is unquestionably one of the modern responsibilities of an employer … And in deciding whether an employer has discharged his common law obligations to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands. (See also Bankstown Foundry Pty Ltd v Brastina (1986) 160 CLR 301 at [308] - [309])

Part 3 Civil Liability Act 2002

The second qualification relates to the final matter relevant to the duty question argued before me: the application of the provisions of Part 3 CLA. Optus argued that the case is governed by the provisions of s 32 CLA. It is appropriate to set out this provision in full: 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.
Optus correctly argued that the effect of s 32(1) was to add an additional condition which must be satisfied by the plaintiff to establish the existence of a duty of care "not to cause the plaintiff mental harm". That additional condition 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". Interestingly, the reference is to the defendant, not a reasonable person in the position of the defendant. The "ought" and the context suggests the reference is to a reasonable person in the position of the defendant.
Optus also pointed out that the provision applies to cases of both pure mental harm and consequential mental harm as defined by s 27 CLA. However, it is not quite right to say, as Optus argue, that "it is therefore unnecessary to determine whether or not this is a case of pure mental harm" (MFI 8 [21]). Section 32(2) applies only to cases of pure mental harm and s 32(3) applies to cases of consequential mental harm.
There is no issue that Mr Wright is suffering from a recognised psychiatric illness. As I have said, Optus did not seek to contradict the medical evidence of the plaintiff. In August 2001, he was initially diagnosed as "suffering from a severe anxiety disorder with secondary depression which has developed since the distressing incident at work on 15 March 2001 in which he was physically attacked." (Report of Dr Peter Sternhell 28 August 2001; Exhibit F1). By 20 December 2001 (Exhibit F5) Dr Sternhell concluded that Mr Wright satisfied the diagnostic criteria for post-traumatic stress disorder ("PTSD"). This has remained the preferred diagnosis with Dr Peter Klug expressing the view, on 28 June 2011 (Exhibit Z1), that Mr Wright suffered from chronic and severe PTSD. I accept this evidence. This conclusion is also supported by the opinion of Dr Gordon RW Davies in his report of 24 June 2009 (Exhibit R1). It is the opinion of each of the psychiatrists that the PTSD is caused by the incident of 15 March 2001. This incident involved a physical attack upon Mr Wright and he suffered physical injuries from the blows struck by George. 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.
I accept the argument of Mr RA Cavanagh SC and Mr CJ Callaway for Mr Wright that s 32(1) appears to reinstate the common law as it was thought to be, at least in this regard, before the decision of the High Court of Australia in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317. That position was summarised by McHugh J in his dissenting judgment at 358[114] - 360[118]. His Honour said: It is in accord with principle, therefore, to hold that, in the absence of a pre-existing duty-relationship, a person has a duty to take care in a nervous shock case only when a reasonable person in the defendant's situation would realise that his or her conduct might cause psychiatric illness. What is reasonable is to be judged by reference to the community's general knowledge of the effect of stressors on ordinary persons of normal fortitude. It is for the tribunal of fact - be it judge or jury - to determine whether the defendant ought to have reasonably foreseen that his or her conduct might cause a person of normal fortitude to suffer psychiatric injury. It is not a matter for expert evidence. … Once the plaintiff establishes that a person of normal fortitude would have suffered psychiatric illness as the result of the defendant's action, the defendant must take the plaintiff as he or she is. The defendant's liability extends to all the psychiatric damage suffered by the plaintiff even though its extent is greater than that which would be sustained by a person of normal fortitude. Accordingly, where the existence of a duty in a nervous shock action turns on reasonable foreseeability, the plaintiff must prove that the defendant should reasonably have foreseen that his or her conduct might cause nervous shock to a person of normal fortitude.
It was argued that the onus lay upon Optus to negative the statutory condition. But in my opinion, this is not correct. The construct of the statutory language is different from say s 5L (a person is not liable) or s 5O (a person … does not incur a liability). Where it is in issue, it is always for the plaintiff to satisfy the Court about the existence of a duty of care: Dederer at [18] (Gummow J); and of all other necessary conditions of the existence of a cause of action: White v Johnston [2015] NSWCA 18 at [87]-[89]; [107]-[108]; [125]. The language of the section, as I have said, creates an additional condition to be satisfied before a duty is said to exist. The language and syntax do not suggest the existence of a rebuttable presumption favouring the plaintiff. It is for the plaintiff to make good the statutory condition.
The question is one for the judge not experts, and is to be decided "in all the circumstances of the case". In the present case s 32(2) and (3) are both relevant. 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.
The question is one of foresight, not hindsight. Like all questions of reasonable foreseeability it must be decided without the benefit of hindsight, looking forward without knowledge of the precise circumstances in which the harm was inflicted, and as though it had not occurred.
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 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. 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).

Did Optus breach the duty owed

Whether Optus breached the duty owed is to be determined in accordance with the provisions of s 5B CLA, the provisions of which are well known and it is not necessary for me to set out the section in full. It is well established in New South Wales that s 5B, particularly the condition that the risk be "not insignificant" (s 5B(1)(b) "imposes a more demanding standard" than that required by the common law as stated in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, but "not by very much": Shaw v Thomas [2010] NSWCA 169 at [44] (Macfarlan JA). With respect I agree with Garling J that "not insignificant... is intended to refer to the probability of the occurrence of the risk": Benic v State of New South Wales [2010] NSWSC 1039 at [101] (see his Honour's analysis at [87] - [100]).
At common law "a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk": Wyong Council v Shirt at p 48 (Mason J). The degree of probability of the occurrence of the risk was one of the factors required to be considered in deciding "what a reasonable man would do by way of response to the risk". Section 5B requires the question of whether the risk "was not insignificant" to be considered as a separate question in addition to the questions of reasonable foreseeability, and the response of the reasonable man (dealt with in s 5B(1)(c)). Although the sentence I have quoted from p 48 of Shirt should not be taken out of its context, it would seem that a risk of injury which is remote in the sense that it is extremely unlikely to occur may be reasonably foreseeable, but not "not insignificant". As Macfarlan JA observed in Shaw this may not change much. But the difference must be borne firmly in mind because application of the statutory language is "of first importance": Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420.
The appropriate starting point is the identification of the relevant risk of harm for the purpose of s 5B. The modern law of negligence places emphasis upon the accurate identification of the risk of harm now required to be analysed through the lens of s 5B: Dederer at [59] (Gummow J). 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. This, in my judgment, is not to adopt hindsight reasoning nor does it offend the principle expressed by Bryson JA in Doubleday & Kelly [2005] NSWCA 151 at [11]: The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury.
Expert Evidence
Before going on to analyse the position by reference to the requirements of s 5B, I should say that the parties introduced a deal of expert evidence going to various breach questions. They were, Dr Roberts, a psychiatrist, Dr Caponecchia, an ergonomist trained as a psychologist and Ms Armour also an ergonomist but trained in biomechanics. Each of them gave evidence in writing and orally. Dr Caponecchia and Ms Armour conferred and produced a joint report but gave their oral evidence separately.
I wish to say with respect to each of the experts, I did not find their evidence pertinent to the resolution of the issues concerning negligence in this case. There are a number of reasons for this. First, the reasoning of all of them was infected by impermissible hindsight reasoning; secondly, in the case of the ergonomists, the questions they were asked to consider invited the issues to be approached on a much more general level of abstraction than that I have determined is appropriate; and thirdly, again, in the case of the ergonomists much of the debate between them was about whether an employer in the position of Optus would have, by 15 March 2001 adopted written operating procedures for dealing with a perceived risk of violence in the workplace as some organisations, not many, had by then.
Jumping ahead, this last issue struck me as being affected by an air of unreality. 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.
I admitted Dr Roberts reports over the objection of Counsel for the plaintiff (Exhibit 1D5 and 1D5(2)). It is apparent that for the purpose of expressing opinions he was provided with a good deal of information that was never tendered (see Wright v Optus Administration (No 6) [2013] NSWSC 1719). The unavailable material included a statement made by George's father about how he appeared when he dropped him at the station on his way to work on 15 March 2001, and detailed admissions made to the police during George's record of interview.
Dr Robert's opinion is as follows: 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 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.
In his second report (5 December 2010, Exhibit 1D5(2)) he offered the opinion, again based on material not in evidence that "George's presentation was classical of a schizophrenic illness with command hallucinations and a delusional belief system". He thought that George had sufficient cognitive function "to realise that he needed to conceal his thoughts and intent".
Of course, not all of the information available to Dr Roberts was available to any of the active participants on the roof on 15 March 2001. It was not available to Optus more generally. But Ms Hedges certainly thought that George's behaviour was consistent with an abnormality of the mind, perhaps referrable to drug intoxication. An important part of Dr Roberts' opinion was the assumption he made that the abnormal behaviour took place "in the moments prior to his attack" (21.50T). That is not correct. There is no precise time line disclosed in the evidence, but Ms Hedges noted George's absence at 9:15 am and the police were contacted by Ms Taylor who Mr Williams spoke to, at 11:19 am. They arrived at the scene at 11:34 am (Exhibit 1D7). Ms Hedges commenced to look for George at about 9:30 am. She looked elsewhere before locating him on the roof. All of the events which I have described in my findings above including the aberrant behaviour witnessed on the roof first by Ms Hedges and then by Mr Williams and Mr Dee probably occurred over a much longer period than "moments" or even a few minutes. The period was perhaps as long as 1 hour before the attack on Mr Wright.
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 282.25T he said: I was aware he presented with pinpoint pupils and was moving about in an agitated matter 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 283.40T: 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). And at 283.50T And there are numerous articles - I can produce one - which indicate that the predictive tests used by some psychiatrists in the forensic situation to predict future behaviour are unreliable. And it is a mythology that violence can be predicted. I think the best predictor of future violence is past violence and if I am asked to put behaviour in a patient with a history of violence that is the standard answer I give. On clinical grounds the best predictor of future violence is past violence.
That Dr Roberts was concerned with predictability is also made clear by his answers to my questions at 293.20 - 294.5T. 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. Q. Just in terms of that inappropriate behaviour, a number of difference expressions have been used in the evidence, inappropriate behaviour, abnormal behaviour, disturbed behaviour. In the circumstances of this case as you've assumed them to be from the material you've read, are they interchangeable expressions? A. Yes, your Honour. Q. And just taking up something you said that disturbed behaviour, whether it's due to a perception that a person is on drugs or otherwise, could reasonably give rise to apprehension, is that correct in the observers? A. Yes. I think whether the observer is lay or professional that certain behaviours of people that psychiatrists deal with can give rise to apprehension and unease simply because of the type of behaviour that one is dealing with. Q. I think you agreed with Mr Cavanagh that that apprehension of which you spoke extended to an apprehension of violence or a concern for safety and that concern for safety, would that be both a concern for the safety of the person acting abnormally and also for a person who might come in close contact with that person? A. I think that would have to be asked your Honour of the individual person who was experiencing it. Some people might be worried about themselves and the well‑being of the disturbed person. Other people may predominantly feel concern about themselves, and I suppose certain other people may feel concerned for the person behaving abnormally as a primary concern. But I think it's all a mixture unpredictable behaviour gives rise to concern as a normal response in those both lay and professional who observe behaviour.
He agreed in cross-examination that the type of aberrant behaviour evinced by George was significant. At 288.50T he said: Disturbed behaviour causes apprehension bystanders (sic). I think it's as high as you can put it. You can't infer any sequelae arising from that.
He also agreed that the type of behaviour evinced by George may induce in others "an apprehension or a feeling of violence or concern for safety" (289.10T). I interpolate that his evidence was that about one in three victims of a violent attack will suffer a post-traumatic stress disorder (291.5T).
To the extent to which Dr Roberts was assessing predictability of the attack which actually occurred with the benefit of the knowledge of it and a greater range of surrounding facts than were available on the day, I put it aside as being not relevant. On the other hand, his opinion about aberrant behaviour giving rise to an apprehension of violence in bystanders has some relevance. However, this is perhaps to say no more than would accord with the general experience of life; perhaps it has greater authority coming from an expert in the workings of the human mind. Relevant too, is his opinion about the incidence of mental harm following a violent attack.

The ergonomists

Dr Caponecchia and Ms Armour in their joint report of 9 September 2013 (Exhibit 1D6) said of the events which occurred at Optus' Gordon site on 15 March 2001 that "it was difficult to see that one of the participants would be physically violent with another". The reference to participants was a reference to persons undertaking call-centre training. As I have said, this pitches the enquiry at too general a level of abstraction. They also said that "the act of attempted homicide is rare in a training environment". So much may be accepted. However, again the level of abstraction is too general.
So far as the aberrant behaviour on the roof is concerned, Ms Armour expressed the view "staff should have sought outside assistance to respond to the security threat and it is not clear why they opted not to other than they had no firm procedures that personnel were trained in". With respect, Dr Caponecchia did not address this issue directly in his report (see [53] - [63]) other than to say "it is difficult to assess the amount of time over which events took place, and the extent to which whether time, uncertainty and heightened emotions may have affected the judgments made".
At 338.40T Dr Caponecchia thought it "fair" to say that he had approached his task by considering the precise events which occurred and looking backwards to see how they could have been prevented. He agreed on the basis of assumptions consistent with my findings above that a person in the position of Mr Williams ought to have obtained guidance as to how the situation should be dealt with and in the circumstances "an occupational health and safety manager" ought to have considered contacting external agencies including the police.
At 350.5 - .35T he was asked a hypothetical question based upon the evidence which underpins the findings I have made about what occurred on the roof and expressed the opinion that on those assumptions Optus should not have required Mr Wright "to go to the rooftop to deal with Nathaniel George". He repeated this evidence at 353.25 - .35T.
Ms Armour gave evidence to the same effect at 361.50 - 362.20T. She said before police or other external agencies are called in "there needs to be a judgment made about the nature and extent of the risk of violence": 367.35T (see also 368.10T).

Was the risk of personal injury including mental harm reasonably foreseeable?

The first question is whether the risk I have identified was reasonably foreseeable. The question of whether the relevant risk is reasonably foreseeable is not a pure question of primary fact. It involves "questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not": Jaensch v Coffey [1984] HCA 52; 155 CLR 549 at 571 (Brennan J). His Honour said the question is a matter of judgment for the judge. Being a matter of judgment, the normative values which underpin the law of negligence, and are now informed by the purposes of CLA which must be applied in making the relevant decision. The approach of Mason J in Shirt continues to inform this limb of the inquiry. The question is whether there was a real risk, being one that is not far-fetched or fanciful. Moreover, it remains the law that it is unnecessary "for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable": Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 - 121; Shaw at [43].
The question, of course, relates to a risk to Mr Wright, an ascertained person in whom George had expressed interest whilst in the grip of his aberrant behaviour. It needs to be borne in mind that Mr Wright is a primary victim and the restraint sometimes brought to bear when answering this question in the case of secondary victims is not relevant.
The time at which the question is to be posed is also relevant. In my judgment that time is when Mr Williams and Ms Hedges had the conversation about, "Who's Glen". The question has to be asked and answered considering all they then knew about George's aberrant behaviour and bearing in mind that Mr Williams was still in the process of working through how to deal with the situation which, if I may put it this way, had to be dealt with.
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. Optus, of course, is a corporation which can only act through its officers and employees. It is clear that it fell to Mr Williams in his capacity as a team leader to manage the situation with George that had developed on 15 March 2001. Although, in the process, he consulted others in the company, including Ms Taylor, the decisions he made were essentially decisions of Optus. As I have said, he was the team leader, he was Ms Hedges' superior and the person she turned to for guidance and assistance when she became aware of George's aberrant behaviour. He assumed responsibility for managing the situation including causing enquiries to be made to ascertain which agency supplied George's services; liaising with that agency; and consulting Ms Taylor. 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 [1972] AC 153 at [171] (Lord Reid) and [187] (Viscount Dilhorne). 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.
Tesco Supermarkets Ltd v Nattrass was concerned with the criminal liability of a corporation for a statutory offence. In Director General, Department of Education & Training v MT [2006] NSWCA 270; 67 NSWLR 237 at [19] Spigelman CJ said: … identifying the relevant rules of attribution is a process that must be separately conducted in each particular context. For example, the rule will not be the same when a court is considering vicarious liability for a tort committed by a person associated with a corporation, as a rule that establishes criminal liability of a corporation for the conduct of a person. The policy issues that must be considered in every context differ considerably.
(See also North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240).
Spigelman CJ made reference to Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [42]. 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. 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].
Section 5B applies to cases where the negligence is said to consist in the failure to take precautions against a risk of harm. It applies to the present case. Bearing in mind the need to identify the risk of harm at the appropriate level of particularity, the risk is that George behaving aberrantly as he was may inflict personal injury on Mr Wright, extending to the impairment of his physical or mental condition. 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: 1. 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; 2. removing George from the premises; it was said either by way of security or police involvement; and finally 3. 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).
Turning to s 5B(1)(a) Optus knew, or ought to have known, through the actual knowledge possessed by its employees, relevantly Ms Hedges and Mr Williams that 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 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 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 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 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.
Bearing in mind those facts which I take to be firmly established by the evidence to which I have referred, and which I have accepted, and considered in the light of the normative standards of the law of negligence as informed by the objects of the CLA, the risk of harm to Mr Wright was foreseeable as a real possibility being neither far-fetched nor fanciful.
Was the risk "not insignificant"? This is the statutory condition which raises the bar higher than the Wyong Council v Shirt formulation; but as Macfarlan JA observed in Shaw "not by very much". It is concerned with the probability of the risk materialising. The language is deliberately chosen. It involves a double negative. It may be contrasted with the use of the phrase "significant risk" in the definition of dangerous recreational activity in s 5K CLA. That expression is taken to mean more than trivial or of substance, but it does not require that the risk be likely to occur. In my judgment a risk may be "not insignificant" even though it has a low probability of occurring; a risk may be "not insignificant" even if it is unlikely to occur. On the other hand, a risk that is extremely unlikely to occur is insignificant.
Looked at prospectively, I do not accept that the risk of George harming Mr Wright had a low probability of occurring. Nor am I of the view that it was unlikely to occur. I accept that Mr Williams must have regarded that prospect as unlikely, but he still regarded the situation as one requiring him to take precautions against harm occurring; that is why he left Mr Dee there on guard; and that is why he left to continue further inquiries. He only permitted Mr Wright to be introduced to George's proximity because he made a wrong assumption about them being friends; he would not have left them there had he known the truth, and he easily could have inquired about it. I reject Optus' argument that Mr Williams was satisfied on reasonable grounds that George posed no risk to anyone.
I am satisfied on the balance of probabilities that the risk of George harming Mr Wright, in the terms I have defined was not insignificant.
In all the circumstances, would a reasonable person in Optus' position have taken one or other of the precautions remaining for consideration? This question is to be answered by reference to the considerations set out in s 5B(2), "amongst other relevant things". It is certainly instructive to bear in mind that Optus, through the consultations between Mr Williams and Ms Taylor determined, I infer, that George had to be removed from the premises. That is why Drake was asked to attend the premises, probably at about the time George was attacking Mr Wright. It is also instructive to consider that two persons, not one person, from Drake attended. A decision to call the police was only made after George had made the attempt on Mr Wright's life.
I reiterate, 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 aberrant behaviour. He was in a place where he was not then authorised to be, occupying himself in a manner other than attending to his training, and refusing the reasonable directions and instructions from the persons Optus had placed over him.
It is obvious that he had to be removed as there was a continuing real, not insignificant, risk that he would do harm to himself or others placed in close physical proximity to him. The probability of that occurring viewed prospectively may not have been high, but the cause for concern was that he was on the roof and the harm, if it occurred, was very likely to be the infliction of serious personal injury on himself or another. In circumstances where Mr Wright had been encouraged to place himself in close physical proximity to George, the harm to him, if it occurred, was very likely to be serious. The burden of taking the precaution of having George removed 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 he refused to comply with directions given to him by Drake employees, to call the police to have him removed from the premises.
As I have said before, the activity that created the risk of harm was not the conduct by Optus of training young people for the performance of clerical work in a call centre. The activity that created a risk of harm in the present context 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.
The precaution that reasonable care required in the present case was really a combination of both remaining factors. 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. There is no evidence that Optus had any security personnel on site who could have been called upon to remove 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 George as Drake's problem is understandable, but it really only passed the buck given that George was unresponsive to directions given to him by Ms Hedges and Mr Williams. In my judgment the police should have been called before 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 request. These conclusions again accord not only with common sense but also with the opinions of the ergonomists.
For these reasons, I am persuaded on the balance of probabilities that Optus breached its duty of care to Mr Wright by failing to take the precautions I have identified.
It is an agreed fact that Gordon Police Station in 2001 was located at 2 Park Avenue, Gordon. Optus' Gordon site was effectively across the road. However, when the police were called a car crew were dispatched through Hornsby Police Station.
As I have said (at [97] above) Ms Taylor telephoned "triple-0" at 11:19 am. From Exhibit 1D(8), a Snr. Constable Woods arrived at the scene at 11:34 am. and called for backup. This was the "car crew" consisting of Snr. Constable McSweeney and Snr. Constable Smith who arrived at 11:47 am. They left the scene at 12:03 pm. This response was relatively prompt. It was also within a relatively short time, given the length of time over which these events unfolded as detailed at [97] above.

Causation

Legal causation in negligence cases is determined in accordance with the provisions of s 5D CLA. Determining causation comprises two elements. The first is that the negligence was a necessary condition of the occurrence of the harm. This is another way of stating what is referred to as the "but for" test. The other is that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. The second aspect is referred to as the scope of liability and encompasses considerations such as remoteness, intervening causes, and the application of the normative standards which underpin the law of negligence; "whether or not and why" legal responsibilities for the plaintiff's harm should be imposed on the defendant. In a case like this involving the determination of legal liability in the context of an established category of duty, the scope of liability question is unlikely to arise: Wallace v Kam [2013] HCA 19; 250 CLR 375 at 385 [22]. Optus relying on the Modbury principle, however raise it.
The onus of proving all facts relevant to the issue of causation on the balance of probabilities lies on the plaintiff at all times: s5E CLA.
I am satisfied on the balance of probabilities that but for the failure of Optus to take the precautions I have found that a reasonable person in its position would have taken, the harm suffered by Mr Wright would not have occurred. Had the police been called to remove George from the premises and in the meantime had all other persons been kept away from George's close physical proximity, the attack on Mr Wright could never have happened. This could be put in positive language. It was negligent for Optus to call for Mr Wright to send him to talk to George. Had that not occurred, he would not have been put in harm's way and George could not have implemented his homicidal intent.
Addressing the scope of liability question, the principles of law I have discussed at [69] to [75] demonstrate that the normative standards underpinning the law of negligence, as modified by CLA, recognise and apply an employee exception to the Modbury principle. These standards inform all aspects of duty, content, breach and causation and, in my judgment, justify the attribution of legal responsibility to Optus for the harm suffered, including mental harm, by Mr Wright.
As against this analysis Optus said that its negligence was not a necessary condition of the occurrence of the harm to the plaintiff. In written submissions (MFI 8 [56]) learned Counsel argue: … it is apparent from the admissions made by Mr George to Mr Dee that he was intent on killing the plaintiff. There was ample opportunity for Mr George to commit the same act on any other occasion when the two were present on the balcony. There is no reason to exclude the probability that had George not succeeded in getting the plaintiff to the rooftop 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 … It simply cannot be found, therefore, that but for Ms Hedges asking the plaintiff to go to the balcony the plaintiff would not have suffered harm. With respect I reject this argument. First, George's homicidal intent was not immutably fixed upon the plaintiff. He had fixed upon another person the previous day, but was foiled by a change in circumstances unexpected by him. Given the irrationality and unpredictability of the working of a criminal mind there is no reason to suppose that he would not have fixed on someone else if his intentions for the plaintiff had been frustrated. Secondly, his aberrant behaviour was such that, as I have found, he should have been removed from the premises. Given Optus' powers under its contract with Drake, I am satisfied that he would not have been allowed to return. Bearing in mind that in contradistinction to questions of breach, questions of causation are determined in retrospect, the purpose of the inquiry being to work out what happened and why. We know that absent knowledge of the attack on Mr Wright, Optus had decided that his behaviour was such that George had to be removed from the premises. On the probabilities, there was not going to be any return of George to the training room, nor any subsequent opportunity for him to entice Mr Wright, or any other fellow trainee, to the edge of the rooftop balcony to throw him or her off. It is true the intended victim of the previous day had foiled George by merely walking away, but that was before George was close enough to grab him. It says nothing about what would have occurred had Mr Wright tried the same thing in the different circumstances then pertaining. Had the precautions been taken no harm would have come to the plaintiff.

Contributory negligence

Optus have argued that even on the assumption that it had put the plaintiff in harm's way he was substantially the author of his own misfortune and should bear by far the greater share of responsibility for the injuries suffered by him. I bear in mind that questions of contributory negligence are dealt with, relevantly for the purpose of this case and the argument advanced, by s 5R CLA.
The argument for Optus depends in large measure upon the idea, which I have rejected, that Mr Wright was a volunteer, taking it upon himself to try and help. A second limb of the argument is that, even were it otherwise, once he arrived on the balcony what could be seen by Mr Hedges, Mr Dee and Mr Williams could equally be seen and appreciated by him.
Mr Wright was a 20 year old trainee required by the terms of his employment to work under the direction, supervision and control of Optus and its supervisors. Until asked to come to the roof by Ms Hedges he had steadfastly avoided getting involved with whatever was happening with George. He did not have all of the accumulated knowledge enjoyed by Ms Hedges, Mr Williams and Mr Dee. It is true that he was concerned that George's behaviour in asking him to come to the edge of the balcony was unusual and possibly put him at risk. However, he had no reason to suppose that George was intent on making an attempt on his life. The fact that Mr Wright thought George's behaviour odd or unusual and possibly involving some unspecified risk to him, in my view does not amount to foreseeability for the purpose of contributory negligence.
Applying the general principles expressed in s 5B, the relevant risk of harm for the purpose of contributory negligence is the same as the risk of harm as that identified for the purpose of Optus' negligence. The relevant precaution, however, is said to be walking away from George, rather than walking over to the balcony railing with him. On the facts as known to Mr Wright, I am not persuaded that a reasonable person in his position ought to have known that there was a real and not insignificant risk that George would attack him. In my view the contributory negligence argument fails at the first hurdle. Had Mr Wright appreciated any real and not insignificant risk he would have refused to approach George; he was already reluctant. I am satisfied that he would have refused to co-operate.
It is not clear that the deceptively simple precaution of walking away once he was engaged in conversation with George would have been effective. On any view of it, George had been working on this very outcome all day, that is to say, having Mr Wright in sufficiently close physical proximity to make an attempt on his life. Once Mr Wright was brought to the roof and encouraged and authorised to put himself close to George, the die was effectively cast. It is most implausible that George would have simply let him walk away. I am not satisfied that Optus has made out a case of contributory negligence.

The liability of IPA

It is necessary to consider the question of the liability of IPA, to resolve the cross-claims that IPA and Optus have brought against each other. The reader will recall that Optus seeks contribution or indemnity from IPA under s 5 of the 1946 Act. IPA seeks an indemnity for the compensation paid to, for or on behalf of Mr Wright under s 151Z(1)(d) WCA.
As is well known, the duty owed by an employer to its employee is non-delegable. Of such duties in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said: It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken". Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken. Of the application of these principles, to employers and quasi-employers, in TNT v Christie, Mason P said at 12 [47] -[48]: The authorities … 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. The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present. An employer is not an insurer of the safety of its employees and although the duty is sometimes described as "stringent" it is not absolute. The duty of a reasonably prudent employer is one to take reasonable care to avoid exposing employees to unnecessary risk of injury: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98 (Hayne J).
In a case like the present, because an employer's liability can arise without personal fault, it is tempting to say that its liability follows more or less automatically from the liability of Optus into whose care IPA placed Mr Wright. But to proceed in this way, is to overlook Mason P's "second requirement" that the plaintiff's injury occur within the scope of the special relationship.
Basten JA (Beazley and McColl JJA agreeing) considered these principles in Dib Group Pty Ltd T/as Hill & Co. v Cole [2009] NSWCA 210. His Honour pointed out at [27] that the epithets "stringent" and "non-delegable" were not "entirely helpful". His Honour said: The term "stringent" is unhelpful and inaccurate if it suggests a departure from a standard of reasonable care. At [40] Basten JA identified the relevant question for the purpose of that case as "the extent to which the personal duty of the employer extends to premises over which it has limited or no control". At [43] his Honour said: The tension between a duty, limited to reasonable care, and non-delegability, arises where an employer sends an employee to work at premises not under the employer's control or using equipment other than that supplied by the employer. These are sometimes identified as "relevant facts" in determining the scope of the employer's duty and whether it has been breached.
To premises and equipment not under the employer's control might be added working with employees of other entities not under the employer's control or direction.
In the course of his review of the authorities, Basten JA referred to the judgment of Ipp JA in Estate of the late MT Mutton by its Executors & R W Mutton T/as Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340. At [146] of that case Ipp JA said: Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer's own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, working conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work. Basten JA expressed the following conclusion at [54] - [55]: The employer's duty, however effected, to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control. Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises? These questions are analogous to the approach to be adopted with respect to the acquisition of plant and equipment discussed in Davie. In such a case, it is not sensible, nor consistent with the requirement to take reasonable care, to treat the employer as "delegating" its duty to provide safe equipment to the manufacturer or supplier. So long as it has acted reasonably, the employer will not be liable for injury to its employee resulting from a defect in equipment or plant not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture.
At [72] - [75] I identified, and explained, the salient features underpinning the duty of care owed by Optus to Mr Wright. All of those features turned on matters within the control of Optus: Optus under its contract with IPA was entitled to exercise control and direction over Mr Wright; it controlled the premises upon which the work was performed; it controlled the activities of others on the site for the purpose of its undertaking or business including the employees of other agencies and its own employees; it had an obligation to co-ordinate the activities of the employees of different employers working in its business for its purposes; the circumstances which had arisen from George's aberrant conduct were entirely within its control and management; and they were entirely unknown to IPA.
The combination of all of these factors persuades me that IPA, if sued, would not have been liable to pay Mr Wright's damages. IPA had no control over the circumstances which arose on 15 March 2001. This complete absence of control, as Ipp JA pointed out in Howard Haulage, must be afforded "due regard … when determining what amounts the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work". As Hodgson JA also pointed out at [53] in the same case the plaintiff's accident "occurred at a property not under the control of the employer, by reason of a danger also not under the control of the employer, of which the employer had no knowledge". To adapt the language of Basten JA from Cole [55], it is not sensible, nor consistent with the requirement to take reasonable care, to treat IPA as "delegating" its duty to provide a safe system of work for Mr Wright in the circumstances arising out of George's aberrant behaviour. It was not unreasonable for IPA to place Mr Wright with Optus, indeed, it was reasonable for it to do so. It is not liable for the injury to Mr Wright which resulted from circumstances of which it was not aware, and which could not have been identified by it by the exercise of reasonable care. What happened was solely within the control of Optus and within the scope of its duty in an area where there was no intersecting duty or responsibility on the part of IPA, except the latter's authority over its employee. But that "control" was entirely theoretical in the absence of actual or constructive knowledge of what was going on.
Optus has not proved that IPA is a party who if sued by Mr Wright would have been liable to him in tort for the damage suffered by him. IPA is not liable to Optus under s 5 of the 1946 Act.

Section 151Z(1)(d) Workers Compensation Act

Conversely, the findings I have just made mean that Optus is bound to indemnity IPA for the compensation paid to, for or on behalf of Mr Wright under the provisions of s151Z(1)(d) Workers Compensation Act 1987 (NSW) "being an indemnity limited to the amount of those damages". This is because in terms of the chapeau to s 151Z(1), the injury for which compensation is paid under the 1987 Act "was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury". That other person is Optus.
At the conclusion of the hearing I was provided with a summary of payments which were agreed between IPA and Optus (422.35T). The total amount for all compensation of various types up to 3 December 2013 is $679, 952.36. Weekly payments were then continuing at the rate of $452.60. Doubtless, further medical expenses have also been incurred. Although neither I nor the parties expected I would reserve for so long, it was contemplated that there would need to be some adjustment to the figures before judgment could be entered in respect of this matter. In due course, I will make a declaration of right in respect of IPA's entitlement to indemnity and give the parties the opportunity to bring in a further agreement about the amount now due under the indemnity. As at 3 December 2013, total payments of workers' compensation were in the sum of $679, 952.32.

Quantum

As I have previously observed, the parties have commendably narrowed the issues relating to the quantum of the plaintiff's damages. Even where there are issues between them, the basis of the appropriate calculation has been agreed.
The plaintiff was born on 14 January 1981. He was 20 years old on 15 March 2001, nearly 33 at the date of trial and now 34 years old.
He left high school in 1996 after completing year 10 and found unskilled work with various employers, mainly retailers of various kinds. In 1999 he moved from the South Coast to Sydney to find better work. He was successful in obtaining a job as a call centre operator which he held for 18 months. He found more work for the same type with other employers until he obtained work with IPA which, as I have said already, placed him with Optus for training for its call centre on 12 March 2011.
As I have already commented, Mr Wright was cross-examined about his pre-injury medical history and in particular a previous history of anxiety and depression. As I have already observed, I am satisfied that his recollection about these matters is faulty. For instance, it is quite clear from Exhibit 1D10 that whilst living in Sydney he presented to St Vincent's Hospital Emergency Department on 12 September 1999 complaining of anxiety which he put down to a reaction to Lovan tablets which he had been prescribed for depression. The history recorded is that he had been on that medication for eight months. As I have already said I am not persuaded that the plaintiff was lying about, or downplaying, his past history. I am persuaded, given the length of time he had forgotten these details. It is also notable that he attended the Prince of Wales Hospital on 2 May 2000 complaining of neck pain from a rear end motor vehicle collision. He made no complaint of anxiety or depression at that time and the doctor recorded that he was not then on medication. A further attendance on an emergency department on 26 September 2000 was for problems other than anxiety or depression.
I should also point out that Optus have led no medical evidence to qualify or contradict the evidence tendered in the plaintiff's case. Nor have any of the plaintiff's medical experts been cross-examined. There is nothing therefore to suggest that that past history of taking Lovan for depression has anything to do with his chronic severe PTSD resulting from the events of 15 March 2001. There is nothing to suggest that the past history exposed him to a risk of severe psychiatric injury at any time in the future necessitating me taking that matter into account in assessing damages.
I have set out the evidence I accept about the immediate effect of George's attack on Mr Wright at [66] above. At [87] I have found that the observations made by Ms Hedges of Mr Wright in the immediate aftermath of the attack, bespeak him suffering "sudden shock" and that as a result of that shock, Mr Wright is suffering from a recognised psychiatric illness (see [82]). That illness is a post-traumatic stress disorder (PTSD) and I accept in Mr Wright's case that the condition is chronic and severe. Moreover, I am persuaded that its effect upon Mr Wright has been and will continue to be near-catastrophic. Despite the previous health issues I have referred to, the effects of George's attack have shattered his life. He was a reasonably well functioning young man with a future in terms of employment, relationships and quality of life. I accept the submission of Counsel for the plaintiff 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.
He shares a house with a flatmate in Huskisson. From the evidence of his father, Mr Stuart Wright, the conditions in which they live sound very rough. The living areas of the house are full boxes of car and motorcycle parts. He described his son's room as filthy and the house as smelly (270.10 - .30T). It is the nature of his illness that he does not care for his person, clothing, or his house.
Before 15 March 2001, his father described him as bright, outgoing and strong willed. He had a group of friends and was socially active. He had been "very, very heavily into horse riding … since he was 9 years old". He always took great pride in his appearance. From his weekly telephone calls home when he moved to Sydney Mr Stuart Wright formed the impression that his son very much enjoyed the call centre work. He said "he'd found his niche". He was proud to tell his father how much he was earning (264.40 - 265.40T). Mr Stuart Wright said that he and his wife went to Sydney to see him after the attack. He said (266.5T): He was changed. He just didn't have - the spark was gone. He just didn't have the drive he had when he left home.
He became aware that his son had "started to self-harm" which he had never done before. He was hospitalised in August 2001. Before going into those details, Mr Stuart Wright described his son as "not the same" and "extremely self-willed, unco-operative to a great degree having no self-regard and lacking in self-esteem" (267.15T).
The development of Mr Wright's psychiatric injury was gradual. He was able to return to work on 26 March 2001, not at Optus but at IPA's offices at Chatswood and he continued with them for about 10 weeks. He found another job as a recruitment officer with Trinity People. I must say, I find it hard to imagine how he would have performed in that work, but he ceased that employment on 20 August 2001. By then I infer he was in a bad way because when he attended the workers' compensation insurer's rehabilitation provider on 27 August 2001, it was considered that he required immediate inpatient treatment. He was referred to Dr Peter Sternell for assessment and he had him admitted to the Sydney Clinic on 28 August 2001 where remained until 3 October 2001. Initially, as I have said Dr Sternell diagnosed a mixed anxiety and depressive disorder, but later by December 2001, he had decided that the clinical features satisfied the criteria of PTSD.
When Dr Sternell first saw the plaintiff, he presented as "an anxious, clean, neatly dressed young man". It is worth setting out some of the history received by Dr Sternell as recounted in Exhibit F5, his report of 20 December 2001: A fellow participant in a training course attacked him, attempting to throw him of the roof of a six-storey building, beating him in the process. Mr Wright was saved by the course facilitator, who witnessed the attack and intervened. The case has been dealt with in court and the assailant was sentenced on 27th October to 3 - 5 years imprisonment. After the attack Mr Wright did not return to work for a week, then after that worked at the Chatswood office of IPA. He found it difficult to work alone, became increasingly anxious and loss confidence in his ability to work. He resigned after three months and worked for another firm for another three months. During this time he experienced poor sleep, was easily startled and forgetful and became increasingly frustrated with his inability to perform the work that he had previously been able to do because of worsening concentration. At the initial interview on 28th August, Mr Wright described panic attacks which first occurred when he was interviewing prospective employees. This was characterised by a sensation of blood leaving his limbs, rapid breathing in short breaths, chest pains and awareness of rapid heartbeat. He would feel very frightened and a strong urge to leave the room during the interview. He could not concentrate on the task and was convinced that he would die. Similar panic attacks occurred on public transport when he saw people resembling the assailant. He thus ceased taking public transport and spent considerable money on taxis. He also described 4 months of initial insomnia, going to sleep at two and waking at six, poor appetite with occasional food binges, and weight loss of nine to ten kilograms after he had stopped regular exercise and weight lifting because of low energy.
After his discharge from the Sydney Clinic Dr Sternell thought Mr Wright seemed quite bright and reactive with evident humour and increasing optimism. Within three weeks, however, he was increasingly depressed, fearful and experiencing distressing suicidal thoughts when alone. He took a paracetamol overdose on 21 October and was readmitted to the Sydney Clinic on 26 October. He self-harmed during his incarceration in the clinic and required hospital treatment.
Before the attack Mr Wright admitted to being an occasional user of cannabis. After the attack, and as his condition deteriorated, he came to rely upon it heavily in a misguided attempt to make himself feel better. During his first period of inpatient period at the Sydney Clinic this was detected and his dependence was treated along with his PTSD.
At the time of his second admission to the Sydney Clinic, Dr Sternell observed that Mr Wright had lost all hope and had become locked in a cycle of recurrent overdoses and self-harm. There then commenced a vicious cycle of frequent admissions to hospital for inpatient treatment including an involuntary admission to the Prince of Wales Hospital in November 2001. I infer it became very difficult to treat him with frequent changes in medication to deal with the risk of self-harm and attempted suicide. His symptom complex expanded to include paranoid beliefs and auditory hallucinations and the pattern of improvement and deterioration leading to inpatient treatment continued over many years. The details are contained in Exhibit A3. The last inpatient treatment occurred in December 2009. Another period of hospitalisation scheduled for March 2010 was cancelled because the workers' compensation insurer did not approve it.
In his report of 20 December 2011 Dr Sternell said: Mr Wright's present condition is consistent with a number of factors. Firstly he suffered substantial damage due to the original trauma. He attempted to cope with it by using cannabis, which led to symptomatic worsening. The use of cannabis appears to have occurred only in context of the post-traumatic stress disorder. Following detoxification from cannabis and discharge from hospital, his symptoms worsened because of several factors. These included on-going avoidance of situations, distressing feelings and thoughts which is a common feature of post-traumatic stress disorder; continued exposure to his assailant whom he had to see in court-room during the sentencing hearing; Mr Wright's use of diazepam to relieve his feelings which lead to loss of control; feelings of worthlessness and of being a failure due to his inability to work or enjoy past pursuits, which exacerbated his depression and hopelessness. He expressed the view that the condition and clinical course were consistent with the effects of the attack of 15 March 2001. In a report of 1 November 2004 (Exhibit F14 page 8) Dr Sternell said: Many observers have commented on the salience of borderline personality traits in Mr Wright and have asked if he has a primary borderline personality disorder. This is not supported on longitudinal history - he appears to have functioned reasonably well prior to the trauma. The history is more suggestive of latent Cluster B personality traits emerging in the context of his reaction to life-threatening trauma. However, much of his management has been along the lines of a patient with borderline personality disorder, with limit setting, trying to avoid splitting of staff and use of [Dialectical Behaviour Therapy].
With his wide range of different prescription medications and some use of illicit drugs including amphetamines he developed substance dependence again and was treated on a Methadone programme because of dependence he developed to Oxycontin which were prescribed to treat headaches.
Dr Gordon R.W. Davies took over the treatment of Mr Wright on 7 September 2007. As I have already said at [82] he is also of the view that Mr Wright suffers from PTSD. He also continued to see his GP, Dr. McLeod and a psychologist Mr Weaver. Dr Davies summarised the position in March 2011 in the following terms: (Exhibit R2, p 7) Mr Wright is a 29 year old man who has suffered from a severe post-traumatic stress disorder following an incident at work in 2001. Since that time he has manifested ongoing and severe psychiatric symptoms and has had substantial problems in coping with day to day life. I am unable to comment properly on his progress in the initial 6 years after the incident, but can see a slight improvement over the last 4 years. However, there is still a long way to go before he can be considered to have a reasonable level of emotional functioning.
Dr Peter Klug examined Mr Wright at the request of his solicitors on 1 June 2011. He has provided various reports which are Exhibit X. As I have outlined, he agrees that the primary diagnosis is chronic and severe post-traumatic stress disorder caused by the attack of 15 March 2001. He agreed with Dr Sternell that Mr Wright is not suffering from a border-line or narcissistic personality disorder. He said at page 8 of his report: Given the severity of his symptomatology, however, I find it difficult to come to the conclusion that his is suffering from a personality disorder, although I am willing to accept that he may have traits along this spectrum (sic). Mr Wright is now a chronically and severely dysfunctional man who leads an isolated and unproductive life. He is on multiple psychotropic drugs, which, to my reckoning should be rationalised, but I acknowledge that he has been a difficult person to effectively treat and manage.
It is clear that his chronic post-traumatic stress disorder and poly-drug abuse, and dependence have been directly caused by the relevant incident in March 2001. Dr Klug regarded Mr Wright as chronically and severely disabled.

Non-economic loss

In my judgment this evidence which I have recounted and accept justifies a conclusion that Mr Wright's psychiatric injury is in a near-catastrophic category. His previous hopeful life having been virtually destroyed by the consequences of the attack on him. Some doctors such as Dr Davies and Dr McLeod have expressed some small hopeful degree of optimism for the future. Given the course of events of the last 14 years, I cannot share it. It seems to me that even if he improves to the extent where his life becomes more organised and ordered he would be unlikely to function in anything like a normal way.
From the evidence of his father and his interaction with his family, I think it extremely unlikely that he will ever be able to form a permanent meaningful and satisfying domestic partnership. The quality of life that is left to him will relate to him living an isolated life in country New South Wales where at least he will have the comfort and enjoyment of working with his horses. Having regard to the nature and severity of his injury, the pain and suffering he has endured, the loss of amenity of life and loss of enjoyment of life he has gone through, the severity of this case of non-economic loss is 75 per cent. This equates to damages of $426,000.

Past Economic loss

There was no issue that Mr Wright has in the past suffered a total diminution of his earning capacity. Indeed, the parties were able to agree upon the amount of his damages for the past based upon an average of the figures published by the Australian Bureau of Statistics for average weekly earnings of adult males in full time employment in New South Wales over the pre-trial period. The agreed figure is $1,004. I have adjusted the amount of the parties' agreement to take account of the time during which my decision has been reserved. The total number of weeks pre-judgment on my calculation is 706. The amount I allow is $708, 824.

Interest on past economic loss

Interest on past economic loss is recoverable in accordance with s 18 CLA. As Mr Wright has been in receipt of weekly payments of compensation throughout the whole of his period of incapacity it is necessary to deduct the amount paid from the figure allowed for past economic loss for the purpose of calculation of interest. I have increased the figure agreed at trial of $267,690.04 to take account of the additional period of 65 weeks during which my judgment has been reserved. I have used the rate of $452.60. This produces an additional amount of $29,419, bringing the total of weekly payments of compensation, on my calculation, to $297,109.04. Subtracting that figure from the amount I have allowed for past economic loss produces a subtotal of $411,715. This is the starting point for the calculation of interest. Conventionall, to take account of the accrual of this figure over the full period, I have divided that figure by 2 to produce a result of $205,857.50. The parties have agreed that the appropriate rate of interest, adopting an average over the period, is 5.21 per cent. There is a dispute between them about the period over which interest should be allowed.
The primary limitation period in respect of Mr Wright's cause of action expired on 15 March 2004. Proceedings were not commenced until 11 March 2009. The defendant argues that I should exercise my discretion to deny the plaintiff interest during the period between the expiry of the limitation period and the commencement of proceedings. The plaintiff argues that I should maintain the conventional approach which is to reason that whatever the delay, the plaintiff has been kept out of his money until judgment and the defendant has had the benefit or use of it during the same period. Accordingly, it is fair that interest run for the whole period since the cause of action arose.
Given the long delay, which is probably explained by the plaintiff's severe psychiatric injury, I think there is force in the defendant's argument. Although the plaintiff is at a very significant disadvantage in advancing his own affairs, he was able to consult solicitors during the limitation period. Of course, whether he was able to act on their advice and promote his own interests is quite another matter. As I will explain later, on the evidence of Dr Davies and Dr Klug, I am persuaded, on balance, that he was not. Having said that and bearing in mind that interest is compensatory, I think it unduly punitive to mulct Optus in interest for the whole period. The annual rate of interest is $10,725. I think it appropriate to allow interest for 10 years. The amount is allowed is $107,250.

Past employer's superannuation contribution

The parties agree that I should apply the conventional figure of 11 per cent of past economic loss. On my calculation the allowance is $77, 970.64.

Past out of pocket expenses

The past out of pocket expenses have been paid by IPA's workers' compensation insurer. Until December 2013, they had totalled $412, 262.32. Optus agreed that this amount should be allowed. Because this figure may have increased over the period during which judgment was reserved. I will grant liberty to the parties to apply in respect of all of my calculations lest they are erroneous.

Future economic loss

Optus accepts that currently and most probably the plaintiff remains totally incapacitated for the rest of his working life. To express it another way, Optus accepts that the plaintiff suffers from a total diminution of his earning capacity. However, two issues are advanced. First, it is said that I should only allow damages up to the "current superannuation preservation age of 60" rather than award damages to age 67 at which time Mr Wright will become eligible for an age pension. Secondly, it is argued that one should allow for the possibility that Mr Wright will improve sufficiently to return to some form of remunerative work. This should be achieved by increasing the conventional discount for the vicissitudes from 15 per cent to 25 per cent.
I reject these arguments. There is no reason to suppose that but for the negligence of the defendant, Mr Wright would have left the workforce at age 60. He is most likely to undertake work of a clerical nature rather than hard manual work, the wear and tear of which might have forced him out of the workforce prematurely. Moreover, one is entitled to know that as people live longer so too they work longer. This trend is encouraged by current governmental policy. It is not only judges who in the future can be expected to work into their seventies. There is no reason to find that Mr Wright would have retired before reaching the age of entitlement to the age pension.
Dr McLeod and Dr Davies in particular 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. Moreover, there was evidence elicited in cross-examination that as part of his compliance with the requirements of rehabilitation undertaken in accordance with his obligations under the workers' compensation legislation, Mr Wright had put forward the idea that he could conduct a small business fabricating and selling horse and dog blankets. Apparently he has skills in this area and has made such articles from time to time over the years. However, nothing of a business nature came of it.
Dr Klug, whose opinion I prefer expressed the following view in his report of 28 June 2011: He appears chronically impaired and unlikely to re-enter the open labour market in the foreseeable future. Taking into account his education, training and experience, the prospect of his returning to appropriate employment is negligible and I regard him as chronically and severely disabled.
I accept this evidence.
Reluctant as one is, as Dr McLeod put it, to "scrap heap" a young man, I regard the prospect of Mr Wright returning to financially productive work as speculative.
The parties agreed that I should approach the calculation of the allowance using as a starting point the same statistical information. The figure agreed is $1,184 per week net. I have taken it upon myself to check the current figure by reference to the Furzer Crestani Handbook. The figure is $1,620.30 gross. Making an allowance for taxation in accordance with the information provided in the same source, I have arrived at a net figure of $1,207. The 5 per cent multiplier for 33 years to age 67 is 855.7, producing a figure of $1,032,830. The amount to be deducted for the vicissitudes at the conventional rate of 15% is $154,924.50. The allowance is $877,905.50.

Future employer superannuation contributions

The parties agree that the conventional rate is 14.4 per cent, producing an amount of $126,418.

Fox v Wood allowance

The parties have agreed this allowance in the sum of $21,427.64.

Future out of pocket expenses

The parties are not agreed about future out of pocket expenses for medical treatment and the like. As can be seen from what has been paid so far, Mr Wright's treatment has proved very expensive. The relevant prescription appears at page 8 of Dr Klug's report of 28 June 2011. This prescription translates into a weekly amount of $515, which Mr Wright claims for the remainder of his expected life, a period of 52 years on the medium life expectancy tables. The defendant challenges this approach, but has no evidence of an alternative prescription. Notwithstanding this, I think there are aspects of Dr Klug's prescription which are unduly pessimistic. For instance, he estimates that Mr Wright will require hospitalisation every year for a period of 2 to 4 weeks and needs to see a psychiatrist on a fortnightly to monthly basis. Mr Wright has not been hospitalised since 2009, as far as I can tell. But I do not doubt that he will require hospitalisation from time to time in the future. His condition is severe and he will need, I find, lifelong ongoing treatment. I do not think better than a broad-brush approach can be taken. I allow one consultation with a psychiatrist per month at $350 per session, one consultation with a psychologist per month at $180, $200 per week for ongoing medication, and an additional $5,000 a year to take care of GP visits for prescriptions and the prospect of hospitalisation. Annualised the figure is $17,260 which converts to $331 per week. The 5 per cent multiplier for 52 years is 984.9 and the total allowance is $326,001.

Past voluntary care

The plaintiff claims damages under s 15 CLA for gratuitous attendant care services. There is no doubt on the medical evidence that as the plaintiff is so dysfunctional his need is great. A comparatively modest amount of 10 hours per week is put forward as an average. There are difficulties with this. As counsel for Optus point out, s 15(2)(c) imposes two thresholds, both of which must be satisfied. They are generally referred to as an intensity threshold and a duration threshold: see Hill v Forrester [2010] NSWCA 170. I accept the argument of Optus that the effect of Hill v Forrester is that "unless the evidence establishes that the plaintiff was provided with gratuitous attendant care services for a period of at least 6 hours per week for contiguous period of at least 6 months, the plaintiff is not entitled to any damages for gratuitous attendant care services at all. If that threshold is satisfied, he is only entitled to such damages for any period in which such services were being provided for at least six hours per week."
Moreover, it seems to me that to be entitled to any damages at all under s 15, in contra-distinction to the common law, the evidence must establish that the need has in fact been satisfied.
There are a number of problems about these matters in the plaintiff's case. First there is no clear evidence at all of continuous provision of services for any period of 26 weeks at any time. This is in the context of the persons who have provided assistance from time to time is the plaintiff's parents. Initially, the plaintiff was living in Sydney and them on the South Coast. Frequently up until 2009 the plaintiff was hospitalised. Moreover, and most significantly the plaintiff's conditions renders him volatile and he argues with his parents frequently. This much is established by the evidence of Mr Stuart Wright. His evidence was that he and his wife would take their son to appointments and the like and that from time to time "if he will let us in we usually clean the house up a bit". Often if they ring ahead, their son will say he does not want to see them. When they are there, something will "touch him off" and he becomes quite abusive. I rather had the impression that because of these relationship difficulties, there may be at least weeks, if not months, when they had little contact with their son because of his volatility. As I have said, the claim is a modest one and I am satisfied the plaintiff's need is great, but I am not satisfied that the evidence makes out a case which crosses and satisfies the statutory thresholds. I make no allowance for this head of damage.

Future Care

The future is in a slightly different category. The plaintiff gave evidence, on which he was not challenged, that if he had someone available to him and he could afford it, he would pay someone to do it. He said "I wouldn't choose to live in filth" (42.10T). As I have said, the difficulty with his relationship with his parents, notwithstanding their willingness to look after him, is his volatility. I expect that would be different with a paid provider. The amount claimed is 10 hours per week and the rate is agreed at $35 per hour. I am satisfied that the largest problem is his psychiatric injury which makes him unmotivated and disorganised. For this reason he requires help with housework, cleaning, washing and perhaps some shopping to assist to make sure there is food in the house. Ten hours per week is a modest amount for this. As I have said the 5 per cent multiplier is 984.9 and the weekly allowance is $350 and the total allowed $344,715.00.

Fund Management

Since my decision was reserved, the decision of Nominal Defendant and Garikiotis [1996] HCA 53; 186 CLR 49 has been revisited by the High Court of Australia in Grey v Richards [2014] HCA 40. The unanimous court stated the principle in the following terms at [4]: … in case 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 awarded as damages, expenses associated with obtaining that assistance is a compensable consequence of the plaintiff's injury
I am satisfied that the plaintiff's psychiatric injury falls into this category. As I have said, Dr Klug described Mr Wright as a chronically and severely dysfunctional man living an isolated and unproductive life. Dr Davies, in his report of 24 June 2009, expressed the opinion that Mr Wright had suffered from a mental impairment "that has impeded the management of his affairs in general and in particular in seeking legal remedies related to his trauma". In my judgment nothing has changed since then. I regard this condition as a relevant impairment of Mr Wright's intellectual capacity such as to put him in need of assistance. This is borne out by his father's evidence. Mr Stuart Wright said that his son was irresponsible and prone to spontaneous irrational decisions. He would be inclined to give away money he had under his control (271.25T). It was the father's view that any damages should be controlled by someone outside the family (272.45T). The parties agreed at the trial that if I was persuaded to award a sum for funds management, I should adopt the rates at page 22 of the Furzer Crestani Handbook involving no quantification of the cost of fund management upon fund management costs. Given this agreement I do not propose to further consider the effect of the decision in Grey v Richards.
My calculations are: Total damages for all other heads $3,407,346; deduct workers' compensation assumed to be $709,373.36; subtotal $2,697,975; add back to total damages $443,940 for fund management; grand total $3,851,286. Summary of Damages 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
I propose to pronounce orders in final form today in Mr Wright's claim against Optus. However, I will delay the entry of those orders for a period of 2 weeks for a number of purposes. First, this will enable the parties to check my calculations and to make application to vary my figures in the event of miscalculation or to take account of workers' compensation actually paid currently. Secondly, it will allow time for the application of s 23 CLA. The parties will have the opportunity to consider whether to negotiate a structured settlement and for that purpose they will need the opportunity of considering the terms of the award of damages I propose to make when I enter final orders. Thirdly, on the findings I have made, Mr Wright may be a person who is liable to be subject to an order that his estate be subject to management under New South Wales Trustee & Guardian Act 2009 (NSW). In those circumstances, I am required to notify the New South Wales Trustee of the terms of the award I propose to make. Delay in entry of the orders will allow time for all of these necessary steps to be taken.
My orders are: 1. Judgment for the plaintiff against the first defendant in the sum of $3,851,286. 2. Under s 77(2) Civil Procedure Act 2005 (NSW), I direct that the judgment money is to be paid into Court and to be held by the Registrar pending an application for either management under New South Wales Trustee & Guardian Act 2009 (NSW) or an order for payment under s 77(3) Civil Procedure Act 2005. 3. Direct the Registrar to inform the New South Wales Trustee & Guardian of the terms of the award I propose to make in accordance with s 23(3) Civil Liability Act 2002. 4. Judgment for the second defendant on the first defendant's cross claim. 5. Declare that under the provisions of s 151Z(1)(d) Workers' Compensation Act 1987, the first defendant is bound to indemnify the second defendant for all amounts paid to, for or on behalf of the plaintiff under the 1987 Act. 6. The first defendant to pay the plaintiff's costs of and incidental to the proceedings forthwith after they have been agreed or assessed. 7. First defendant to pay the second defendant's costs of and incidental to the proceedings forthwith after they have been agreed or assessed. 8. Under Rule 36.11 Uniform Civil Procedure Rules 2005 defer entry of the judgments and orders pronounced until further order. 9. List the matter for directions for Campbell J at 9:30 am Friday 20 March 2015. 10. Parties to have liberty to apply to be exercised by written submissions lodged with the associate to Campbell J no later than 4:30 pm 18 March 2015.

Amendments 09 March 2015 - Hearing Dates has been amended to include 11, 12, 13, 14, 15, 18, 21 and 22 November 2013 11 March 2015 - Paragraph [110] after the words "purposes of CLA" the word "which" should be added. 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: 11 March 2015

Guardian Act 2009(NSW)

Workers Compensation Act 1978(NSW)

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