INSIGHTS: Attempted murder during offsite training: is the occupier liable for psychiatric injury?

Case note: Optus Administration Pty Limited v Glenn Wright by his tutor James Wright [2017] NSWCA 21:

In overturning a decision of the Supreme Court of NSW, the Court of Appeal considered the application of section 32 of the Civil Liability Act 2002. By a 2:1 majority, the Court of Appeal found that an occupier did not owe a duty of care not to cause mental harm to a person who suffered a severe psychiatric injury as a result of an attempt by another trainee to throw him from a balcony whilst attending a training course at the occupier’s premises.

The respondent, Glenn Wright, was employed by a labour hire company. He was attending a training course for call centre operators conducted by Optus Administration Pty Limited (Optus) at their premises in Gordon, NSW. Also attending the training was Mr Nathaniel George, who was from another labour hire company and not an Optus employee. During the third day of the training course, Mr George was found on the 4th floor roof balcony of the premises where he was observed to be in a “trance-like” state, pacing up and down and repeatedly asking for “Glenn”.

Mr Wright reluctantly agreed to the request of an Optus employee to go to the roof and provide assistance. Once he arrived, an Optus team leader left the roof in order to get instructions from senior management as to how to handle the situation. Two other Optus employees remained on the roof balcony with Mr Wright and Mr George. In an unprovoked attack, Mr George suddenly grabbed Mr Wright and attempted to throw him from the roof of the Optus office building. He was stopped from doing so by one of the two Optus employees who intervened and restrained Mr George, allowing Mr Wright to escape. Mr Wright suffered minor physical injuries but later developed chronic severe PTSD and other psychological conditions.

Mr Wright sued Optus for damages in relation to the psychological injury suffered as a result of the attack by Mr George, claiming that at the time of attack, Optus owed him a duty analogous to that owed by employer to employee. Optus denied it owed a duty of care akin to an employer and contended the only relevant relationship was that of occupier of premises and lawful entrant. Optus also denied that it owed Mr Wright a duty of care not to cause him mental harm pursuant to section 32 of the Civil Liability Act 2002.

Relevantly, section 32(1) provides: A person does not owe a duty of care to another person 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.

At trial, Campbell J of the Supreme Court of NSW held that Optus owed a duty of care to Mr Wright that was analogous to that of employer and employee. The trial judge also found that Optus’ duty of care to Mr Wright extended to taking reasonable care to protect him from the criminal acts of others in the workplace. As to Section 32, Campbell J found that it was reasonably foreseeable that Mr George may assault Mr Wright when he was brought to him and that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken. The risk of harm was identified as being the risk that Mr George might inflict injury on Mr Wright, including mental harm, before he was asked by Optus employees to attend the roof balcony. Campbell J found that a reasonable person in Optus’ position would not have put Mr Wright in harm’s way by exposing him to Mr George’s erratic behaviour.

Damages were awarded to Mr Wright totalling close to $4M plus costs, which included an assessment of non-economic loss at 75% of a most extreme case.

On appeal

The main issues on appeal were (i) whether Optus owed a duty of care to Mr Wright not to cause him mental harm and (ii) whether it was reasonably foreseeable that a person of normal fortitude might develop a recognised psychological illness if reasonable care were not taken.

When considering section 32, Basten JA held that in order to find that Optus owed a duty of care to Mr Wright not to cause him mental harm, it was necessary to make the following findings:

• It was reasonably foreseeable that Optus’ staff or persons undergoing training on Optus’ premises, being persons of normal fortitude, might encounter other staff or trainees exhibiting aberrant behavior of such severity as to cause a recognised psychiatric illness, absent the infliction of another injury; and
• That being foreseeable, reasonable care required that Optus give instruction and training to all staff that, if such behavior were encountered, they should not approach the person, should instruct a superior as to their observations, and not allow other staff members to approach the person until police arrived.

Basten JA (with Hoeben JA agreeing) held that there was no basis on which to make such findings and therefore, Mr Wright failed to establish that Optus owed him a duty of care with respect to mental harm so as to satisfy the requirements of Section 32. Approaching the matter prospectively rather than retrospectively, the Court held that based on the information available to the relevant Optus employees before the assault occurred, it could not be satisfied that Optus knew or ought to have known that Mr George would attempt to kill Mr Wright. At [70], Basten JA held that the evidence did not support a finding that Optus ought to have reasonably foreseen that an assault of the subject severity may occur and that such an assault might cause a person of normal fortitude to suffer a recognised psychiatric illness.

On that basis, the Court of Appeal found by a 2:1 majority (Basten JA and Hoeben JA with Gleeson JA dissenting), that Optus did not owe Mr Wright a duty of care not to cause him mental harm.

In his dissenting judgment, Gleeson JA found that Optus did owe Mr Wright a duty of care not to cause him mental harm and, at [236], listed the following factors in reaching that decision:

1. The power Optus had to assert ‘control’ over Mr George while on its premises as a participant in its training course;
2. Mr George’s presence on the roof without permission, refusing reasonable instructions and directions by persons Optus had placed over him;
3. Mr Wright’s vulnerability to harm from Optus’ conduct, subject as he was to Optus’ supervision, direction and day-to-day control while on its premises;
4. Mr Wright’s reliance on Optus not to put him in harm’s way;
5. The special knowledge of Optus concerning the progression of Mr George’s aberrant behavior and its assumption of responsibility for managing the incident with Mr George on the roof balcony.

Noting the amount of damages involved and the non-unanimous decision of the Court of Appeal, it will be interesting to see if Mr Wright seeks to apply for special leave to appeal.

If you wish to discuss this decision please contact Robert Crittenden, Principal.

Disclaimer: This information is current as of March 2017. These articles do not constitute legal advice and do not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of these articles.