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

1. [1]

   BASTEN JA: In March 2010 the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of 17 March 2010 an intruder entered the premises; he was accosted by the appellant, whom the intruder, then wielding an axe, threatened to kill. The appellant escaped but suffered mental harm as a result of the encounter.

2. [2]

   The appellant (as plaintiff) brought claims in negligence in the Common Law Division against (i) the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant’s employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security). (Dynamite Security having been deregistered by the time of the trial, its defence was run by the Workers Compensation Nominal Insurer, which was also its insurer for personal injury damages claims.)

3. [3]

   The proceedings were heard over 12 days in September and December 2017, final submissions being filed in February 2018. On 13 May 2019 the trial judge (Bellew J) dismissed the proceedings against each defendant. [1] The present appeal is brought from the judgments and orders in the Common Law Division. Actions against the owner (SPG investments) and the security contractor (Business Protection) turned on general law principles as modified by the Civil Liability Act 2002 (NSW). As the judge correctly noted, the Civil Liability Act did not apply with respect to the claim against the employer, which was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW), and was thus excluded from the operation of the Civil Liability Act by s 3B(1)(f) of the latter Act.

4. [4]

   The Civil Liability Act does not prescribe the circumstances under which a duty of care arises; but it does impose constraints on the existence of a duty of care in particular circumstances. The appellant suffered no physical injury, but only mental harm. That factor engaged the constraint on the existence of a duty of care imposed by s 32 of the Civil Liability Act, which provides:

5. [5]

   The judge addressed the terms of s 32, concluding that neither SPG Investments nor Business Protection owed the appellant a duty of care, as he did not pass through the gateway of s 32(1). That finding was challenged on the appeal.

6. [6]

   There are other provisions in the Act which preclude a finding of liability in circumstances where they are engaged. Relevantly for present purposes, the respondents invoked s 5I, which provides:

7. [7]

   The trial judge accepted that risk of being attacked by an armed intruder was an “inherent risk” for the purposes of s 5I, which materialised in the harm suffered by the appellant. Accordingly, neither SPG Investments nor Business Protection was liable in negligence for that harm. That finding was challenged.

8. [8]

   The respondents (other than the employer) also relied in the course of the trial on the provisions of s 5F and s 5G of the Civil Liability Act. Section 5F defines the meaning of the term “obvious risk” for the purposes of Pt 1A, Div 4 of the Civil Liability Act. Section 5G provides that in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. The trial judge accepted that the risk in question was an obvious risk, but it is not clear how that affected the findings of the case. The judge also found that the appellant was actually aware of the risk. That finding left no room for a presumption. (There was no complaint of failure to warn under s 5H.)

9. [9]

   The judge also considered whether the plaintiff had established a duty of care owed to him by each respondent, in accordance with general law principles. It appears that he held that only Dynamite Security owed a duty with relevant content. [2] That finding was relevant to all three respondents and was challenged.

The incident

1. [10]

   The appellant was working as a security guard at the Lidcombe Power Centre on the night of 16/17 March 2010 when, at about 1.15am he confronted an intruder. The intruder was carrying an axe and threatened to kill the appellant. The appellant retreated to his office in the building, severely shaken. From the safety of the office he called police. The basic elements of the incident are not in doubt. Nor was there any doubt that the appellant suffered a psychological injury as a result of the encounter. There was, however, a dispute as to the extent of that injury and its causal relationship with the incident. In 1994 the appellant’s father had murdered his mother; three years later his father died in gaol. There is no doubt that these events had serious consequences for the appellant’s mental health, albeit some 15 years before the events of March 2010. There was an issue as to the extent to which they continued to affect him in March 2010.

2. [11]

   In order to understand the circumstances of the incident, it is convenient to have regard to plans of the ground floor and first floor of the premises, which appear at the end of the judgment.

3. [12]

   The trial judge accepted the plaintiff’s description of the incident from his first evidentiary statement: [3]

4. [13]

   The incident report prepared contemporaneously by the appellant read as follows:

Reasoning of trial judge

1. [14]

   By reference to various instruction manuals relating to the functions and duties of a security guard, to which reference will be made shortly, the trial judge came to the conclusion that, to the extent the appellant suffered injury, it was, in effect, self-inflicted.

2. [15]

   The reference in the appellant’s statement to the earlier break-in (which occurred on 10 February 2010) will be considered further below. It was relevant in so far as it revealed a weakness in the physical security of the building. There was an important issue in the case as to which of the respondents knew of the break in prior to the March incident.

3. [16]

   Immediately following the finding set out above, the trial judge set out two emails which had been sent the following morning. The first was from Mr Stanwix, a senior administrator with Business Protection. The email went to various persons at SPG Investments. It is convenient to set out the whole of the emails as they appeared in the judgment, together with the judge’s comments.

4. [17]

   As will be noted below, there are inferences which may be drawn as to how those responsible for the Centre viewed the appellant’s conduct; there was no condemnation of him for wilful disregard of orders, nor dereliction of duty.

5. [18]

   The trial judge then turned to the report of an expert on security measures, Mr Terrence Flanders, dated 31 July 2013. The judge’s view of Mr Flanders’ evidence was expressed in the following succinct conclusion:

6. [19]

   The manner in which the judge dealt with Mr Flanders’ evidence, together with his refusal to admit a joint report of three experts, including Mr Flanders, was said by the appellant to infect the findings as to breach of duty. It will be necessary to consider that material below.

7. [20]

   The judge then turned his attention to the terms of s 32 of the Civil Liability Act, set out at [4] above. Noting that it qualified what might otherwise give rise to a duty of care owed by a defendant to a plaintiff, he addressed its operation prior to considering whether there was a duty of care under the general law. In doing so, he correctly focused upon the operation of the Act with respect to SPG Investments and Business Protection. Again placing weight upon the conduct of the appellant, which he said “completely defied common sense, and had no legitimate purpose”, [4] the judge concluded that “no person in the plaintiff’s position, who had been given the instructions that the plaintiff had been given, would act in the manner in which the plaintiff acted.” [5] He concluded that neither SPG Investments nor Business Protection owed the plaintiff a duty of care. [6]

8. [21]

   For reasons which will be further considered below, the reasoning with respect to s 32 of the Civil Liability Act effectively determined the applicant’s claim on the basis that there was no general law duty of care. However, it was only following that determination that the judge moved to consider common law duties of care as a separate topic, setting out the various submissions with respect to the roles of SPG Investments and Business Protection. With respect to SPG Investments, the judge reached the following conclusion:

9. [22]

   While SPG Investments was an occupier of the premises, and owed some duty of care to the appellant as an entrant on the premises, Business Protection was in a different position, having no physical presence on the premises. The judge made the following findings with respect to Business Protection:

10. [23]

    That left the further question identified by the trial judge as “whether not that duty of care extended to a duty to protect the plaintiff from the criminal behaviour of an intruder.” [7] The judge concluded that question in favour of the plaintiff. [8]

11. [24]

    These conclusions are not easily reconciled with the conclusion at [146] that it was “not reasonably foreseeable to either SPG or BPG that the intruder might threaten the plaintiff in the manner in which he did.”

12. [25]

    The judge then had regard to the question of breach. He identified the proper formulation of the risk faced by the plaintiff as “the risk that he might sustain injury as a consequence of an encounter with an intruder.” [9] He concluded that that risk was both foreseeable and not insignificant. [10] (That finding is not easy to reconcile with the manner in which the judge concluded there was no duty owed under s 32 of the Civil Liability Act.) The judge identified the “real question” as “whether a reasonable person in the position of SPG and or BPG would have taken precautions.” [11] The judge answered that question with respect to SPG Investments in the following terms:

13. [26]

    With respect to Business Protection, he dismissed the claim that it had not adequately trained the plaintiff, [12] but noted that, through Mr Stanwix, Business Protection was aware of the gap over the roller. However, he was satisfied that Mr Stanwix acted reasonably in the circumstances, given that Business Protection was not an occupier of the premises, with the result that there was no breach of duty on the part of Business Protection. [13]

14. [27]

    The judge then dealt with the respondents’ reliance upon what was described as “assumption of risk”, where the risk was an “obvious risk” as defined in s 5F of the Civil Liability Act. Section 5G presumes that the plaintiff was aware of an obvious risk. With respect to those provisions the judge concluded:

15. [28]

    It is not entirely clear whether that reasoning had any consequence for the outcome of the case, even on a contingent basis. On the other hand, such a finding might perhaps have supported the conclusions reached when considering the operation of s 32 of the Civil Liability Act, set out above.

16. [29]

    Finally, with respect to SPG Investments and Business Protection, the judge considered the operation of s 5I of the Civil Liability Act, which provides that there is no liability in negligence for harm resulting from “the materialisation of an inherent risk”: s 5I(1). An inherent risk is something that “cannot” be avoided by the exercise of reasonable care and skill. [14] Absent a duty to warn, it is not clear that a finding of the materialisation of inherent risk does more than negate a finding of breach of duty. The judge’s conclusion with respect to the operation of s 5I was as follows:

17. [30]

    The judge dealt with the liability of the employer’s insurer briefly. [17] The reasoning, accepting a duty of care, followed the reasoning in respect of Business Protection, as did the finding that the employer did not breach the duty owed. [18]

18. [31]

    Finally, the judge considered the question of damages, which will be addressed in more detail below.

Grounds of appeal

1. [32]

   The issues in the amended notice of appeal, as they arose chronologically at trial, may be summarised as follows:

   1. (1)

      admissibility of joint experts’ report on breach of duty (grounds 13 and 14); and placing no weight upon the evidence of the appellant’s expert (Mr Flanders) – ground 15;

   2. (2)

      findings as to duty of care:

   3. (3)

      breach of duty:

   4. (4)

      damages – ground 11;

   5. (5)

      delay – grounds 12 and 16.

2. [33]

   Consideration of the last matter, namely an allegation that the findings of fact were “infected by operative delay”, was primarily relevant to questions of relief and may be dealt with in that context.

3. [34]

   Although it would be logical to consider questions of admissibility first, both the experts’ joint report and Mr Flanders’ separate evidence were relevant primarily to breach of duty and will be addressed in that context.

4. [35]

   Before dealing with issues relevant to a claim in negligence, it is convenient to note specifically the terms of ground 3:

5. [36]

   The challenged findings occur in a number of places throughout the judgment, including [109], set out at [14] above. Before addressing the appellant’s complaints with respect to these findings, it is necessary to consider the legal significance of the findings. Generally speaking, the conduct of the plaintiff in circumstances giving rise to injury will not be relevant to an assessment of whether the defendant owed the plaintiff a duty of care, nor as to whether the defendant was in breach of any such duty. It is possible that the plaintiff’s conduct may have broken a causal link between breach of duty and injury, or, more usually, the plaintiff’s conduct may demonstrate contributory negligence.

6. [37]

   The trial judge did not reach either of these issues, although both arose on the pleadings. There was no discussion of causation, nor reference to s 5D, the relevant provision of the Civil Liability Act, in the judgment. That is not to say that the judge did not deal with any defences: in fact, he did address concepts identified as “assumption of risk” and “obvious risk”. The latter term (obvious risk) appears in s 5F and 5G of the Civil Liability Act; the term “assumption of risk” does not, although it does appear in the heading to the Division in which those provisions appear. While the judge held that the risk which materialised was an obvious risk, of which the plaintiff was presumed to have been aware, [19] the relationship of that finding to a question of liability of any of the respondents was unclear.

7. [38]

   It is necessary to address these issues: the first respondent, SPG Investments, raised the failure of the appellant to establish causation under s 5D of the Civil Liability Act, and a defence of “voluntary assumption of risk” in a notice of contention. The second respondent, Business Protection, raised the same issues in its notice of contention. The third respondent, Dynamite Security, raised a defence of voluntary assumption of risk pursuant to s 151O of the Workers Compensation Act 1987 (NSW), and contributory negligence, pursuant to s 151N of that Act. There is some irony in the employer’s position, as both ss 151N and 151O limit the availability of such defences. However, more generally, there is a question as to whether “voluntary assumption of risk” provides a defence, or simply a denial of liability. There is a further question as to whether, and if so how, the principle operates in the present circumstances. It is convenient to address these legal issues first, before considering in their logical sequence, (i) duty of care; (ii) breach; (iii) causation; and (iv) damages.

(a) legal principles

1. [39]

   For reasons which will be discussed below, the Civil Liability Act neither abolished nor codified common law principles with respect to assumption of risk; rather, s 5F and s 5G appear to have made quite specific changes to one aspect of the doctrine, namely awareness of risk. It is therefore appropriate to commence by identifying the nature of the doctrine under the general law.

2. [40]

   As explained by Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed), “[i]f the claimant voluntarily assumes the risk of the defendant’s negligence he cannot recover: volenti non fit injuria.” [20] However, as the authors further note, the basis on which the doctrine prevents liability has not been satisfactorily established. They continue:

3. [41]

   The same element of duality had been noted in US cases. In Tiller v Atlantic Coast Line Railroad Co, [21] decided after Congress had legislated to abolish the doctrine, Frankfurter J observed:

4. [42]

   For the purposes of the Civil Liability Act, the elements of the doctrine are important. Peel and Goudkamp explain: [22]

5. [43]

   The Civil Liability Act seeks to vary the general law principles regarding the first element by creating a presumption that a person who suffers harm was aware of the risk, if it were an “obvious risk”, as defined in s 5F: the presumption appears in s 5G. According to the Review of the Law of Negligence – Final Report, [23] there was no intention to interfere with what constituted a voluntary assumption, on the basis that that element “is ultimately an evaluative question about which it would be difficult to make general provision.” [24]

6. [44]

   This approach creates a significant difficulty: how does one assess voluntariness in respect of a risk of which the plaintiff is not actually aware, but only constructively aware in the sense that a reasonable person in his or her position would be so aware?

7. [45]

   There is a further difficulty. As Peel and Goudkamp correctly note, there is an overlap between the doctrine of voluntary assumption of risk and contributory negligence. [25] A denial of liability, however, precludes the apportionment of loss which results from the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (“the 1965 Act”), where both parties bear responsibility. Section 9 of the 1965 Act provided that where the plaintiff “suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person … a claim in respect to the damage is not defeated by reason of the contributory negligence … and damages … are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

8. [46]

   In keeping with the recommendations of the Final Report, the operation of the 1965 Act has been varied by s 5S of the Civil Liability Act, which allows for a reduction of 100%, so that a claim for damages may again in “very rare” cases, [26] be defeated by contributory negligence. The question is whether there may be cases where the judge would not think it just and equitable to assign all responsibility for loss to the claimant, but yet deny liability on the basis that there had been a voluntary assumption of risk.

9. [47]

   In recommending a provision in the form of s 5S, the Final Report stated:

10. [48]

    This was not the approach the Final Report adopted with respect to assumption of risk; rather, the relevant discussion commenced with the following propositions:

11. [49]

    The Final Report did not infer that there was any possible inconsistency between the apportionment of liability under the 1965 Act and the assumption of risk doctrine. Rather, it attributed the decline of the latter to “techniques” used by the courts. The reasoning was as follows:

12. [50]

    The recommendations, now found in s 5F and s 5G, sought to (i) reverse the burden of proof where the risk was “obvious”; (ii) allow for constructive knowledge of “obvious” risks, and (iii) define the risk of which the person was aware without reference to precise detail. That left untouched the second and supposedly most significant reason why the defence is effectively unavailable, namely in its operation as to workplace risks.

13. [51]

    An obvious difficulty arising from this approach is that in situations such as the present, where the risk arose in the course of employment, partly as a risk for which the employer was responsible, but also as a risk for which others were responsible, the continuing inference is that, in accordance with general law principles regarding defendants other than the employer (whose liability is governed by s 151O of the Workers Compensation Act), it is unlikely that the doctrine of assumption of risk will operate.

14. [52]

    It may also be noted that the Final Report’s recommendation 32 with respect to assumption of risk commenced with the chapeau:

15. [53]

    English case law identifies two respects in which the courts have rejected the doctrine of assumption of risk as a basis for denying liability in circumstances similar to the present. First, there are cases involving systems of work. Thus, the mere fact that the claimant goes to work every day knowing that the workplace is not reasonably safe does not establish that he or she consents to working in conditions which are not reasonably safe. [29] Secondly, there are cases involving emergencies. In Haynes v Harwood [30] the defendant negligently left his horses unattended in the street and a boy threw a stone at the horses, causing them to bolt. The plaintiff, a police constable who sought to bring the horses under control and was injured in so doing, was nevertheless able to recover. Clearly the plaintiff acted in urgent circumstances in a way which was consistent with his function as a police officer. The defendant’s claim that he willingly undertook the risk which materialised was rejected. The same approach has been extended so that police officers who suffered psychiatric injury as a result of work undertaken helping out in the aftermath of the Hillsborough soccer match tragedy were also able to recover. [31] Similar principles have applied in cases involving rescuers, including both professional fire fighters and members of the public. [32]

16. [54]

    These principles have been applied in Australian cases. In Rootes v Shelton, [33] the High Court held that, while a participant in water skiing may be taken to accept risks inherent in the sport, it did not follow that such consent extended to negligence on the part of the driver of the boat. In Caterson v Commissioner for Railways, [34] the High Court upheld a claim by a plaintiff who was carrying a friend’s luggage into a carriage when the train started to move unexpectedly and without warning. The plaintiff jumped onto the platform and was injured. Although the plaintiff might have been considered the author of his own misfortune, by jumping from the moving carriage, he did so having left a young boy on the platform many miles from home and the train’s next stop was 80 miles away. Where the defendant’s negligence placed the plaintiff “in a position in which he has to choose between two dangers” [35] the Court held that the jury was entitled to take the view that there was no contributory negligence, the action having taken place at a time when contributory negligence was a complete defence.

17. [55]

    Chapman v Hearse [36] involved a motor vehicle collision which resulted in the driver of one car being thrown onto the road at a time when visibility was poor, the sky overcast and the nearest street lamp was not working. A passing driver, a medical practitioner, Dr Alan Cherry, stopped and sought to attend to the injured driver who was still lying on the roadway. Dr Cherry was run down and killed by a third car which had not been involved in the accident. Proceedings were brought by the executor of Dr Cherry’s estate against the driver of the third vehicle. The driver alleged contributory negligence on the part of Dr Cherry and also sought contribution from the driver who caused the collision of the first and second vehicles. Applying Haynes v Harwood, the High Court held that the possibility that someone might come to the aid of a party injured in the first collision and in turn be injured was reasonably foreseeable, with the result that the driver responsible for the first collision was liable to contribute to the damages payable to Dr Cherry’s estate. [37] In determining liability, the Court stated: [38]

18. [56]

    Dr Cherry was held not to have been guilty of contributory negligence. [39]

19. [57]

    Although there was consideration of whether Dr Cherry’s act was an intervening event which broke the chain of causation between the negligence leading to the initial collision and the injury to Dr Cherry, and addressed the question of contributory negligence, there was no suggestion that there was any voluntary assumption of risk; such a principle would be inconsistent with the analysis set out above as to contributory negligence. [40]

20. [58]

    Nor is any different approach to be found in cases dealing with psychological harm. Thus, in Mount Isa Mines Ltd v Pusey, [41] liability for mental harm was accepted in a case involving a “rescuer”, that is a fellow worker who came to the assistance of two severely injured colleagues and suffered psychological harm as a consequence.

21. [59]

    Finally, in Wicks v State Rail Authority (NSW) the High Court considered the liability of the State Rail Authority to police officers who attended the Waterfall train derailment in 2003. [42] The focus of the case was the limitation on recovery of damages for pure mental harm under s 30(2) of the Civil Liability Act, which requires the plaintiff to be a close member of the family of the victim, or to have witnessed the victim being killed, injured or put in peril. Section 30(2) provides a limitation on recovery, as does s 32, which imposes a limit on a duty of care not to cause mental harm. [43] No question of voluntary assumption of risk was identified.

22. [60]

    There is thus a long history of claims by persons who have put themselves in the way of danger, not necessarily in the course of a legal duty arising from the course of their employment (as may be the case for professional service providers such as firemen and police) against whom no denial of liability based on the doctrine of voluntary assumption of risk has been raised. It is not possible to infer that the principles applicable in such cases have been determined by the High Court inadvertently, without reference to an established doctrine of voluntary assumption of risk. The correct inference is that no such doctrine has operation in these cases.

23. [61]

    To the extent that the finding of the trial judge that the appellant was solely responsible for his own misfortune involved application of the doctrine of voluntary assumption of risk, the finding should be rejected. To the extent that he did not intend such a finding, the respective contentions of the respondents seeking such a finding should be rejected. It is sufficient to note at this point that to the extent that the appellant encountered danger in the course of his employment as the result of negligence on the part of the respondents, he cannot be said to have voluntarily consented to such a risk of harm. The security guard who is shot and killed by an armed robber, in circumstances where his or her employer has negligently failed to supply appropriate protection, cannot be said to have voluntarily consented to the risk of being murdered. If there is a defence of “voluntary assumption of risk” it is not engaged in such cases. Indeed, it has not been for over a century. [44]

24. [62]

    It may be noted that the trial judge relied in part on the reasoning of McClellan CJ at CL in Carey v Lake Macquarie City Council. [45] Much of the reasoning is uncontroversial, but other members of the court did not join in his reasons on this issue. [46] Further, the trial judge stated:

25. [63]

    McColl JA observed in Carey:

(b) factual circumstances

1. [64]

   On one view, the reasoning of the trial judge that the appellant was the author of his own misfortune and thus solely responsible for the harm suffered is best seen as an example of contributory negligence sufficiently serious to engage s 5S of the Civil Liability Act so that any claim for damages is defeated. One reason for addressing it in that context is that no issue will arise unless the appellant has established the existence of a duty of care on the part of a respondent, together with breach of that duty. On the other hand, a strong case can be made to address a claim that there should be no recovery at all, despite an established breach of duty, as properly arising under s 5D(1)(b) and (4); s 5S would then be otiose, but an element of apparent incoherence would be removed. In any event, the judge’s analysis of the appellant’s circumstances on the night in question tended to colour the analysis of breach. Accordingly, it is desirable to address those findings prior to considering the conventional analysis set out below.

2. [65]

   The cross-examination of the appellant, based on two particular documents involving operational instructions given to security guards, focused on directions that particular steps were to be taken in the interests of their own safety. Those directions fell into three broad categories, namely (i) general directions to take care, (ii) particular directions addressed to specific circumstances, but which did not arise on the night of the incident and (iii) particular directions addressed to specific circumstances which had application to the incident. For reasons which will be explained, the approach adopted by the cross-examiner was flawed because it failed to address the directions in the context of the appellant’s job description and functions.

3. [66]

   The general directions were little more than directions to take care for one’s own safety. That they were deemed necessary reflected the fact that the work of a security guard involves risks to personal safety. The passage relied upon by the trial judge was identified in the following terms:

4. [67]

   The judge noted the cross-examination on those directions, together with the conclusions he drew from the cross-examination, in the following terms:

5. [68]

   The passage of cross-examination is instructive: as the second question and answer revealed, the cross-examiner was focusing entirely on the document and was not interested in how such a broad direction might be understood and applied in the particular circumstances which arose on the night of the incident. The inferences drawn by the judge similarly provided no assistance in respect of the particular events.

6. [69]

   The second document was described as Business Protection’s “Standing Operating Procedures”. The document contained 71 separate headings, some of which were directed to Business Protection’s own policies (including those headed “equal employment opportunity”, “harassment/sexual harassment”); some were addressed anodyne topics such as “appearance”, “name tags/identification badges”; others were disciplinary, including bans on smoking and sleeping on duty (clause S9 was headed “talking on duty” and required an officer to give “undivided attention” to his or her duties and to avoid “long and unnecessary conversations”). The cross-examiner focused on S11 which stated that “Officers are not to leave their posts” and are not to engage in “pursuit of offenders”, the latter being “a matter for the Police”. The trial judge treated the appellant’s “post” as the “control room” in the Centre and observed that it would have been difficult “if not impossible, for any person in his position to comply with the instructions in that clause, given that he was the only person on duty on the evening of the subject incident, and was therefore responsible for tasks which necessarily required him to leave the control room.” [47] However, the judge said that he was directed not to leave the control room for the purpose of “pursuing intruders”, and was aware of that.

7. [70]

   Reading the clause in context, it seems implausible that the appellant could be treated as pursuing an intruder when leaving the control room to see if an intruder had in fact entered the premises. Nevertheless, the judge concluded:

8. [71]

   This passage omits mention of the fact that, as the appellant explained in his evidence, he left the control room because no CCTV camera covered the area above the roller door at the foot of the fire stairs, being an area that the appellant had seen the potential intruder approach, but without knowing whether he had actually obtained access to the building. There was no evidence that he could have seen the intruder in the building from the control room; indeed, the layout of the building as revealed in the evidence suggested otherwise.

9. [72]

   The cross-examiner took the appellant to a paragraph headed “S42 Duties and procedures patrol officers” which read as follows:

10. [73]

    Nothing in the first paragraph was contravened by the appellant on the night in question. The first step he took, positioning himself where he could see the top of the escalator coming up to the first level, was undertaken in order to “discover” whether an intruder was present. He did not attempt to capture him. Nor in fact did he stay to observe the intruder from a distance, given the threat made to him. So far as the second paragraph was concerned, there was no discussion of what was meant by “non-client premises”, but in any event the appellant did not enter particular premises in the Centre, nor did the intruder.

11. [74]

    It is convenient to set out a little of the cross-examination relied upon by the trial judge, which read as follows: [48]

12. [75]

    If the purpose of the cross-examiner were merely to ensure that the appellant had at some stage (seven years prior to the cross-examination) read and understood the document, the cross-examination would have been unremarkable. However, as the appellant, in seeking to answer by reference to the events on the night of the incident demonstrated, he understood the questioning as relevant to what had happened. As it turned out, his assumption was correct: the cross-examination was relied upon as if it related to the incident on the night in question; there was no recognition that the appellant had sought to indicate that he did not believe that to be the case.

13. [76]

    The third document relied upon by the cross-examiner was a further Business Protection document, specific to Lidcombe Power Centre and entitled “Site Operations Manual”. The appellant was taken to two provisions in the manual and asked to read them to himself. The first was clause 35: [49]

14. [77]

    He was asked if he had read and understood it “at the time”, which he no doubt understood as being prior to the incident. [50] The cross-examiner simply took him through it. He was not asked if it applied, in his view, to the events of the night in question. At the point at which he knew the man was armed, namely when he saw the man holding an axe and threatening him, he fled to the control room and called the police immediately, which was precisely in accordance with his obligations under the first paragraph of that clause. In fact, unsurprisingly given the circumstances, his failure was to take a note of the person’s height, weight, clothing and age in accordance with the second paragraph. He was not criticised on that score.

15. [78]

    The second passage which was the subject of cross-examination read as follows: [51]

16. [79]

    The cross-examination was, again, generic: it simply went through the clause line by line seeking agreement that the appellant understood the instructions. Significantly, however, the following question and answer appeared: [52]

17. [80]

    The point of the cross-examination was unclear, unless the answers were to be misinterpreted. The appellant’s understanding, as suggested by the answer which was said to be irrelevant, was that the earlier incident, in February 2010, had involved a break-in of tenant’s premises, whereas the incident in question did not. The judge’s finding based on the document and the cross-examination was in the following terms:

18. [81]

    The first sentence in this reasoning generalised from clause 41 to “any part of the premises where an intruder might be present”. Other inferences drawn were no doubt accepted by the appellant, but they were obvious matters which no person sought to contradict. There was no attempt to address the instruction in the light of evidence as to what the appellant did, and was apparently expected to do, when he attended the February incident. The incident report of the February break-in was as follows:

19. [82]

    On the basis purely of the instruction manuals and the cross-examination relating to them, the judge drew the following inferences:

20. [83]

    The first two inferences are general, and appear to reflect clause 41 of the Site Operations Manual, although it was not in those terms. The third inference is expressly directed to clause 41, although it was probably derived from clause 35. However it only engaged with the facts of the evening at the point at which the appellant had reason to believe that the intruder was present and armed. Inferences 4, 5 and 6 were all part of the same point, namely that the rationale for the directions was “at least in part, the preservation of his own safety.”

21. [84]

    Before concluding that those inferences as to the appellant’s knowledge had relevance to the 17 March incident, it would have been necessary to engage with other aspects of the operations manual and the functions actually performed by security guards. First, and curiously, neither the cross-examiner nor the judge had regard to clause 34 in the Site Operations Manual, which read as follows:

22. [85]

    On one view, the appellant’s conduct followed this broad description of appropriate steps to be taken in the precise situation which eventuated on 17 March. Even more importantly, the existence of clause 35 anticipated that a security guard might find himself or herself in such circumstances. Indeed, the operations manual has numerous clauses directed to such situations, under the headings “Shoplifters”, “Apprehensions”, “Aggressive Person/s/Violent offenders”, “Person/s making ‘Threats to kill’”, “Armed Person/s”, “Armed Holdup/Robbery”, “Suspicious Bags/ Parcels/ Items”, “Assaults” and so on. [53]

23. [86]

    Secondly, the intimation in the judge’s findings that a security guard was expected to play an entirely passive role, avoiding any situation in which he might confront an intruder, cannot be reconciled with the functions described in the Site Operations Manual. For example, clause 15 set out “Night Patrol Procedures” and (unlike provisions such as clause 41, which referred to the need to call “Victoria Police”) was specifically designed for the Lidcombe Power Centre. It included a form to be completed by each officer on duty, indicating that between midnight and approximately 5am, the officer was required to undertake six patrols including external patrols which involved going out of the gates, along Parramatta Road, upstairs and along “all tenancies”, downstairs and out on to the street, re-entering through the gates where the patrol started and checking all loading docks and external fire doors. The internal patrols required checking all levels, including toilets and stairwells.

24. [87]

    Thirdly, the evidence of what the appellant did on 10 February, on instructions and without criticism from management who would have viewed the incident report, was inconsistent with the judge’s view of a security officer’s functions, based on a semantic analysis of limited parts of the instruction manuals.

25. [88]

    Finally, the emails from management on the morning of 17 March noted above demonstrated no criticism of the appellant’s conduct on the previous night; indeed the contrary. Nor did any respondent call any witness to suggest that the appellant had acted in contravention of proper practice, or contrary to expectations of management.

26. [89]

    The inference drawn by the judge that the appellant was the author of his own misfortune did not ultimately depend upon any assessment of the credibility or reliability of the appellant, or his evidence. This Court can readily “conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law”. [54] In my view, the findings at [109] of the primary judgment, repeated in other passages, must be rejected. The appellant, it should be found, acted appropriately. If it becomes necessary to address the matter, there was also no basis for a finding of contributory negligence on his part. Ground 3 must be upheld.

27. [90]

    It is necessary, therefore, to identify any duty of care owed by the respondents and to consider whether each or any of them was in breach of such a duty. As will be explained shortly, there can be no doubt each respondent owed the appellant a duty of care; the case against each turned upon the question of breach.

(a) Civil Liability Act, s 32

1. [91]

   It is convenient to consider first the effect of s 32 of the Civil Liability Act, set out at [4] above. The question is whether the person alleged to owe a duty of care 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.” As noted above, the trial judge addressed this language by reference to two specific factors. The first was to conclude that it was not reasonably foreseeable that the intruder might threaten the appellant in the manner in which he did. [55] The reasons supporting that conclusion related to the second issue, namely that the appellant’s conduct in drawing attention to his presence was unforeseeable. [56]

2. [92]

   For reasons which will be addressed further in considering breach of duty, neither of these findings of fact should be accepted. Relevantly for present purposes, however, they are not responsive to the language of s 32. The need to consider “the circumstances of the case” is not to ask whether the circumstances were reasonably foreseeable, but whether, given those circumstances, a person of “normal fortitude” might suffer psychiatric illness. That question was not appropriately answered by saying that the circumstances of the case were not foreseeable. Nor was it appropriately answered by reference to the conduct of the appellant. Rather, the “circumstances of the case” were identified in part in s 32(2), which deals with such matters as what the plaintiff witnessed or whether the plaintiff suffered a “sudden shock”, matters which were not conclusive of an answer either way, but which related to the immediate cause of the psychiatric illness, rather than the foreseeability of the cause.

3. [93]

   There is a question as to whether, having identified error with respect to the manner in which the trial judge dealt with the operation of s 32, the matter can be resolved in this Court, or whether it must be remitted for a further hearing. There are three factors which militate in favour of the matter being resolved by this Court if that is possible. First, there has been significant delay in resolving a claim for damages resulting from a workplace injury, which occurred more than 10 years ago. Secondly, the test to be undertaken pursuant to s 32 requires an objective and prospective judgment. It cannot turn on findings of fact as to the consequences for the appellant of the incident, nor on the precise circumstances which evolved on the evening in question. Thirdly, only the appellant gave evidence as to what happened; to the extent that the detail is relevant in order to identify the circumstances of the case, it is not in dispute.

4. [94]

   In principle, the question as to what might be expected of a person of normal fortitude in the circumstances of the case could be the subject of expert evidence from psychiatrists or psychologists. However, helpful evidence in that respect may not be easy to come by. As Windeyer J noted in Mount Isa Mines Ltd v Pusey: [57]

5. [95]

   Without the assistance of psychiatric evidence, the lay view might well be that a person of normal fortitude alone in a large building at night chased by a man with an axe saying “I will kill you” would experience a level of terror and hence possible psychiatric illness. However, the point was not to be determined without reference to psychiatric evidence. Dr Jonathon Phillips, consultant psychiatrist, gave evidence in the course of cross-examination in the following terms: [59]

6. [96]

   It must be recalled that the test prescribed by s 32 is whether a person of normal fortitude “might” suffer a psychiatric illness in the circumstances of the case. Senior counsel for SPG Investments, in conducting the cross-examination, by asking whether a shock was “inevitable” effectively conceded the test in s 32 was satisfied. Indeed, in the third question set out above, the underlying assumption was that PTSD was a likely reaction, at least, “far more likely” than a severe reactive depression.

7. [97]

   In written submissions relating to s 32, this was the passage in the evidence most relevant to the question to be determined. The submission also noted that Dr Phillips “conceded” that “in a definitional sense, a person who is a regular user of cannabis is not a person of normal fortitude.” However, that question was addressed to a particular characteristic of the appellant, on the defence case, and not to the question raised by s 32. The written submissions of Business Protection adopted the submissions of SPG Investments. [60] It should be accepted, therefore, that the evidence supported the conclusion that s 32 of the Civil Liability Act was satisfied in the circumstances of this case.

(b) duty – SPG Investments

1. [98]

   There was no challenge to the conclusion that SPG Investments owed some duty of care to the appellant; the issue was formulated at trial as to whether this was merely the duty of care owed by an occupier of premises to a person lawfully coming onto the premises, or whether there was an “extended duty of care”. The concept of an “extended” duty of care is unclear. It is true that, in practical terms, there is no clear distinction between what is sometimes identified as the content of a duty and conduct which may constitute a breach of the duty: one may readily be described as the opposite of the other. Three propositions appear to have been critical to the judge’s reasoning.

2. [99]

   First, it was said that SPG Investments “did not employ the plaintiff and accordingly had no control over the manner in which he discharged his duties and responsibilities.” [61] Secondly, it was said that the appellant’s injuries were “a consequence of the criminal behaviour of an intruder whose entry was unauthorised and unexpected.” [62] Attention in this respect was paid to the reasoning of the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil. [63] The judge concluded that “in cases where a duty to control the conduct of the third party has been held to exist, the party found to have owed the duty has had the power to assert control over the third party”, which was said not to be the case here. [64] Thirdly, the judge found that the critical failure alleged on the part of the SPG Investments was in not closing a “gap” above a roller door, which had allowed the intruder access to the premises, but of the significance of which as a weak point in the perimeter it was not aware.

3. [100]

   The third factor may be put to one side for present purposes. Whether SPG Investments was aware of the gap would be irrelevant in the absence of a finding that it owed the duty of care involving taking reasonable steps to maintain the security or integrity of the perimeter of the building. Awareness of the weakness would, therefore, be relevant to breach, not to the existence of the duty.

4. [101]

   Much the same objection operates with respect to the other two factors. How the appellant carried out his duties was not relevant to whether there was a duty of care owed to him; further, the presence of an intruder on the premises was only relevant if there was a duty of care to secure the premises against intruders.

5. [102]

   Correctly, the judge identified the question to be answered in terms explained by Mason J in Papatonakis v Australian Telecommunications Commission: [65]

6. [103]

   Although Mason J was in dissent as to the liability of the occupier on the facts, the statement of principle was reflected in all judgments.

7. [104]

   Applying those principles, both the appellant and Business Protection contend that SPG Investments owed a duty of care to the appellant. Once distractions are removed, that conclusion should be accepted, as a matter of law.

8. [105]

   There are, no doubt, various reasons why the owner of a large building containing valuable goods and equipment may seek to protect the premises and their contents by maintaining security whilst the building is not in use. The case for SPG Investments, as run at trial, was summarised by the judge in terms to which no objection was taken in this Court:

9. [106]

   As the owner of the premises SPG Investments had responsibility for the physical elements of its security, such as lockable doors. Thus, if there were a means of access to the building which was not properly secured, it was the party able to take reasonable steps to rectify any structural defect. It followed that the concession that SPG Investments owed a duty of care was sufficient to dispose of that issue. The duty is to take reasonable care for the safety of occupants. That duty included providing a secure perimeter during hours when the building was not open to the public. Whether particular steps were required in relation to the access obtained by the intruder over the roller door was a factual matter to be considered in determining whether there had been any breach of duty to those who were required to work on the premises, including a security guard employed to work alone after hours.

(c) duty – Business Protection

1. [107]

   The judge accepted that Business Protection had no physical presence in the building and therefore was not an occupier of the premises. Its liability turned upon its role either as an employer or as an independent contractor. Business Protection’s case was that it had either “delegated” its obligations under its contract with SPG Investments to Dynamite Security, or Dynamite Security was an independent contractor for whose negligence Business Protection was not liable.

2. [108]

   The trial judge accepted that it had not delegated its responsibilities entirely to Dynamite Security, although Dynamite Security was an independent contractor. Rather, it maintained a significant degree of control over the services provided by security guards, including requiring them to wear a uniform bearing Business Protection’s logo, providing training and instructions by way of various manuals and requiring that they comply with instruction manuals prepared by Business Protection. The judge’s finding in this regard are set out at [22] above.

3. [109]

   Business Protection resisted the limited findings of the trial judge on the basis that he had wrongly inferred that a particular person, Mr Bill Morris, was an employee of Business Protection, rather than an employee of Dynamite Security. There was undoubtedly evidence that Mr Bill Morris worked for Business Protection in late 2009 and early 2010. However, as Dynamite Security submitted, there was evidence that Mr Bill Morris worked for Business Protection in the first part of 2009 and that the appellant commenced work at the Lidcombe Power Centre in June 2009. The finding by the trial judge was that, whilst acting as Business Protection’s operations manager, Mr Bill Morris “was at least partly responsible for the plaintiff’s training.” [66] That he may have transferred to the workforce of the labour hire company, Dynamite Security, is largely beside the point. The issue was whether Business Protection had had a role in establishing the work conditions at the Lidcombe Power Centre prior to the appellant’s employment. As noted below, there was no reason to doubt the judge’s factual finding in that regard.

4. [110]

   There were the arrangements between SPG Investments and Business Protection for the provision of security services by the latter at the Lidcombe Power Centre. Those arrangements were put in place by Richard O’Brien & Associates Pty Ltd (O’Brien) as agent for SPG Investments. (SPG Investments described O’Brien as its “asset manager”.) O’Brien had negotiated the agreement between SPG Investments and Business Protection for the latter to provide security services at the Lidcombe Power Centre from a date well prior to June 2009.

5. [111]

   Much of the evidence as to the contractual relationships was unclear because none of the corporate entities called evidence at the trial. There was however a volume of documentary material, although the provenance of some documents was unclear. Those documents included a document prepared by Business Protection headed “Scope of works for SPG Investments”, which set out the services to be provided, the training programs for security staff, including the assurance that “BPg train all staff and a team is dedicated to the buildings assigned. … All new BPg staff must be trained before commencement of employment to ensure understanding and safety requirements are understood.”

6. [112]

   That document further stated that “no firearms or weapons will be carried by the security officer” and that “[w]eekly and monthly reports are issued to the asset manager.” The object of the proffered services was to “eliminate hazards and opportunities for crime”. The document (the copy of which in evidence) was dated May 2009.

7. [113]

   There were two documents in evidence entitled “Site Operations Manual” for Lidcombe Power Centre, bearing the Business Protection logo; there was also a document entitled “Security Instructions for Lidcombe Spotlight Centre”, again bearing the Business Protection logo. The last document identified relevant Business Protection staff in a box which included Mr Bill Morris as NSW Team Leader. It may be that Mr Morris was also employed by Dynamite Security; he was also named in a box which included security officers associated with Dynamite Security. In the earlier of the two manuals he is identified in the box including Business Protection staff, where he was described as “operation manager”, and was not listed amongst the security staff, although the appellant was.

8. [114]

   There was ample evidence to support the finding that Business Protection took responsibility for training security staff and defining the operations to be carried out, as it was the subcontractor of the owner. There was no documentary evidence as to its relationship with Dynamite Security.

9. [115]

   There can be little doubt on the basis of this material that the trial judge was correct to conclude that Business Protection owed a duty of care to security staff, including the appellant, with respect to the operations at the Lidcombe Power Centre.

10. [116]

    Neither before the trial judge nor in this Court did the nominal insurer dispute the employer’s duty of care to the appellant. The trial judge found that it did not breach that duty. Its notice of contention relied upon the defence of voluntary assumption of risk and contributory negligence, which were not addressed below.

(a) factual background

1. [117]

   There were two relevant incidents which occurred close in time. The first was a break-in on the night of 9/10 February 2010, in the course of which two intruders obtained access by climbing over the top of the roller door at the bottom of a set of fire stairs. The incident was presently relevant, not because of the appellant’s role in it, but because it should have alerted each of the respondents to a weakness in the perimeter security of the Centre.

2. [118]

   The second incident, on March 17, involved three stages. First, the appellant, in his office watching CCTV coverage of the forecourt of Lidcombe Power Centre, noted a man with a large bag and a cap pulled down over his eyes approach the Centre. The appellant lost sight of him because there was no CCTV camera covering the roller door or the fire stairs behind it. The man’s behaviour led the appellant to be suspicious as to his intentions and caused him to leave his office and take a position where he could observe the man if he came up the escalator from the possible ground floor entry point. That was the second stage of the events.

3. [119]

   The third stage arose when, in fulfilment of the appellant’s fear, the man appeared at the top of the escalators and the exchange described by the appellant and set out at [12]-[13] above took place. The appellant turned and fled to the safety of his office and rang the police. It appears that the intruder had immediately fled and was shortly thereafter apprehended by police, alerted by the appellant.

(b) expert evidence

1. [120]

   The appellant, Business Protection and Dynamite Security briefed experts on building security. They prepared a brief joint report, which was excluded by the trial judge. [67] Reasons were not given for that decision, but when sought, the judge indicated they would be “incorporated into the final judgment.” [68] The final judgment did not include any reasons for excluding the joint experts report. Ground 13 in the amended notice of appeal challenged the exclusion of the joint report; ground 14 alleged error in failing to give reasons.

2. [121]

   The judge addressed objections to the individual reports of the experts separately. He allowed the tender of Mr Flanders’ report; Mr Flanders, called by the appellant, was cross-examined. The judge considered his evidence in some little detail, [69] and placed “no weight upon his report, his oral evidence, or his opinions.” The appellant challenged that conclusion, identifying in ground 15 three bases of challenge, namely (i) failing to give adequate reasons, (ii) failing to adequately or properly consider the evidence and (iii) not accepting opinions which had not been the subject of cross-examination.

3. [122]

   There is no reason to trouble with the complaint of the inadequacy of the reasons in respect of Mr Flanders’ evidence. The reasons for the judge’s conclusion were set out in detail; whether they were persuasive is another question. The challenge based on lack of reasons must be rejected.

4. [123]

   In other respects, it is convenient to deal with Mr Flanders’ report first, because he provided explanations and reasoning for certain conclusions, being matters in respect of which the joint report was of limited assistance.

5. [124]

   The criticisms raised by Mr Flanders with respect to the conduct of the respondents may be grouped in three categories, namely (i) inadequate induction and training, (ii) failure to provide a safe system of work, and (iii) failure to address structural defects in the premises.

6. [125]

   With respect to the first matter, the judge was entitled to reject Mr Flanders’ evidence, as he did, on the basis that the underlying premise was false. Thus, the judge accepted that the appellant had received and understood the various instructions contained in the manuals as to what to do when aware of the presence of an intruder. [70]

7. [126]

   With respect to the approach to be adopted when confronted by an intruder, the judge noted that Mr Flanders had formed his opinions on the basis of three inspections of the premises which he had conceded were “cursory”, the judge noting that “[n]ot one of them included an inspection of the control room.” [71] The judge was entitled to reject Mr Flanders’ evidence as to procedures which should have been adopted to ensure a safe system of work.

8. [127]

   The judge also identified shortcomings in the manner in which Mr Flanders gave evidence, describing him as “a less than satisfactory witness.” The judge asserted that he gave “the distinct impression that he perceived his role to be that of an advocate for the plaintiff, rather than an independent expert whose primary duty was to assist the Court.” [72] The judge stated that this approach was typified by answers given by Mr Flanders in relation to clause 41 of the operations manual. It is not necessary to address the judge’s view of that part of the cross-examination, although, in my view, Mr Flanders was entitled to reject the suggestion that clause 41 involved “a clear instruction as to staying away from offenders”. [73] Having read the extract from the cross-examination and the context in which it occurred, it demonstrates an unwillingness to accept propositions being put by cross-examining counsel, but on a basis which finds support within the text of the operations manual. However, the matter need not be pursued because the judge was clearly entitled to reject Mr Flanders’ views about the level of, and appropriateness of, the instructions provided to the appellant.

9. [128]

   The third category of criticisms made by Mr Flanders related to the physical structure of the premises. It was that material upon which the appellant relied in this Court. As noted by the trial judge, the failures identified by Mr Flanders were as follows: [74]

10. [129]

    The appellant’s case focused on the first two points, which concerned knowledge of the February break-in. As will be noted, the trial judge rejected breach on the part of SPG Investments on the basis that the evidence did not establish that it had become aware of the February break-in when it occurred.

11. [130]

    The cross-examination of Mr Flanders in relation to the matters identified above, on the part of SPG Investments, was confined to identifying the failures as those of Dynamite Security. [75] The cross-examiner also took Mr Flanders through photographs showing the distance between the top of the roller and the ceiling. The cross-examination on behalf of Business Protection was largely directed to identifying the significant rate of break-ins in the Lidcombe area involving commercial and non-residential property, established to be about five per week. Counsel for Dynamite Security did not cross-examine Mr Flanders.

12. [131]

    It was correct to identify any weaknesses in the physical structure of the premises as weaknesses which it was the obligation of SPG Investments, as the owner of the building to rectify. It may also have been an obligation of Business Protection and Dynamite Security to raise such issues with the owner. None of the cross-examination challenged Mr Flanders’ opinions that steps of the kind identified in the passage set out at [128] above should have been taken.

13. [132]

    Turning to the joint expert report, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.26(2), the report identified matters which were agreed and matters which were not agreed. Agreement was reached in relation to the following questions and answers:

14. [133]

    The appellant submitted that agreed answers were admissible pursuant to UCPR r 31.26(3). No doubt the material must be relevant, but there is no doubt that the answers set out above qualified on that basis.

15. [134]

    As demonstrated by the judgment of Adamson J in X v Sydney Children’s Hospitals Speciality Network (No 5), [76] various issues had been raised over the years as to the precise effect and operation of r 31.26(3). Adamson J rejected a submission that the provision related only to tender, and not to admissibility. There may, however, be discretionary reasons for rejecting expert opinion, pursuant to s 135 of the Evidence Act 1995 (NSW). So much was accepted in X v Sydney Children’s Hospitals, but it is a qualification which has no obvious relevance in the present case. It was also suggested in X v Sydney Children’s Hospitals, and not rejected out of hand, that an issue might arise as to whether the experts’ opinions fell within the area of their expertise. The better view is that if the rule correctly addresses admissibility, as may be accepted, it does so not by overriding the requirements, for example, of s 79 of the Evidence Act, but by waiving the need for the circumstances satisfying such a provision to be set out in the expert report. An opinion patently outside the area of expertise could be rejected, or given no weight.

16. [135]

    There is, in the present case, a further question as to whether it is appropriate for this Court to take into account the opinions expressed in the joint expert report by way of agreement. Apart from Mr Flanders, the experts were not called at trial. Nor was there any suggestion that this Court should take oral evidence. On the other hand, it is difficult to see on what legitimate basis the respondents could claim prejudice if the evidence were tendered and admitted without oral questioning. It may fairly be said, as submitted by senior counsel for Business Protection, that the questions left something to be desired and the answers given were of limited assistance. To the extent that the parties formulated the questions and obtained answers, upon which the respective experts were agreed, there is a strong case for saying that the obligation under Pt 6 of the Civil Procedure Act 2005 (NSW) militates against permitting any remittal for further hearing. Those provisions oblige the court and the parties to ensure that the practices and procedures of the court are appropriate “for the speedy determination of the real issues” [77] and to ensure that the costs involved are proportionate to the importance and complexity of the subject matter in dispute. [78] However, apart from a challenge to the costing in the answer to question 5, the answers were not patently outside the professed area of expertise. Furthermore, in so far as the answers supported to the plaintiff’s case, and were in turn supported by the plaintiff’s own expert, he was available for cross-examination and was cross-examined at the trial.

17. [136]

    In these circumstances, in the absence of any good reason to reject the agreed opinions of the experts, they should have been admitted at trial and should now be admitted on the appeal. The weight to be given to such material is a separate question.

(c) breach – SPG Investments

1. [137]

   In dealing with breach, the judge held that the risk faced by the plaintiff was “the risk that he might sustain injury as a consequence of an encounter with an intruder.” [79] The judge was satisfied that the identified risk was both foreseeable and not insignificant, for the purposes of s 5B(1) of the Civil Liability Act. [80] The judge was further satisfied of a probability that harm would come to the plaintiff if care were not taken and that there was a likelihood that such harm would be serious, thus taking into account critical factors in s 5B(2). The judge correctly identified the real question as being whether a reasonable person in the position of SPG Investments would have taken precautions which were not taken. On that issue, the judge concluded as follows:

2. [138]

   The reference to not being satisfied that SPG Investments was “aware of the gap” referred back to the judge’s analysis of the email exchanges which followed the incident on 10 February 2010. [81] The judge’s finding was expressed in the following terms:

3. [139]

   The trial judge undertook an analysis of the emails which followed the incident on 10 February in terms with which the appellant took issue. The judge’s conclusion was that the only reference to “entry having been gained through the gap at the time of the February incident” was contained in an email by an employee of Business Protection to the Managing Director of Business Protection and to an employee of O’Brien. The appellant’s submission that the trial judge drew an unduly narrow inference as to the knowledge of SPG Investments from this material should be accepted. To explain why, it is necessary to set out the key elements of the evidence.

4. [140]

   The first email, at 8.21am on 10 February 2010, came from a person identified only as “Janet” at “Spotlight Lidcombe”, which the trial judge correctly inferred was the Spotlight store which had been broken into some hours earlier. The email appears to have been directed to officers of Spotlight, including Georgia Hall (risk management). There was nothing in the email to indicate how the intruders entered the Lidcombe Power Centre, only noting that “they used our trolleys to smash our front door in.” Georgia Hall responded at 8.29am referring to previous discussion in relation to contacting police and checking missing merchandise and possible damage. Ms Hall’s email is sent over the address:

5. [141]

   At 11.58am on 10 February 2010, Mr Stanwix sent an email to Marc Thompson and Gerald James. Marc Thompson was the Centre manager employed by O’Brien at Lidcombe Power Centre. As noted above, O’Brien was the asset manager appointed by SPG Investments to manage Lidcombe Power Centre. Mr Stanwix’ email commenced in terms from which it can be inferred that Mr Thompson already knew about the break-in:

6. [142]

   Senior counsel for SPG Investments on the appeal, acknowledged that the reference to “Centre Manager/Asset Managers” was a reference to O’Brien. It should be inferred that “you” in an email to Mr Thompson meant O’Brien. It should therefore be inferred that O’Brien had authority to deal with defects in the security of the building perimeter. It may thus be inferred that the agent appointed by SPG Investments to deal with perimeter security (amongst other matters) had express knowledge of the manner by which the intruders obtained access on 10 February and understood it to be identified by the contracted security firm as an “issue”. The appellant submitted that this was sufficient to fix SPG Investments with knowledge of the manner of entry and its responsibility to address the problem. That submission should be accepted.

7. [143]

   As the appellant further noted, there was material from which a close connection between O’Brien and SPG Investments could be inferred. First, there was in evidence a letter from O’Brien giving the same address as SPG Investments. Secondly, following the incident involving the appellant, Allison Hall sent an email to Mr Thompson at O’Brien, Mr Stanwix and Ms Georgia Hall, reporting on the incident. That email is set out in the extract in [16] above. It may be noted that Ms Hall sent the email as “Asset Manager, SPG Investments”. Although Allison Hall’s email address was allison@richardobrien.com.au, O’Brien responded to a notice to admit facts denying that it employed Ms Hall in February and March 2010, from which it may be inferred that she was employed by SPG Investments, consistently with the title she used. The address of SPG Investments was level 6, 111 Cecil Street, South Melbourne 3205, the same address as Spotlight in Melbourne, as noted on Georgia Hall’s email.

8. [144]

   There was undoubtedly a close relationship between O’Brien, Spotlight and SPG Investments. Importantly, Allison Hall is identified as asset manager of SPG Investments, the owner of Lidcombe Power Centre. It would have been open to SPG Investments to call evidence or, perhaps, tender documents which could have demonstrated a division in the management arrangements between it, O’Brien and Spotlight. It did not do so. In the absence of such evidence the Court can comfortably infer that the chain of emails with respect to the February break-in, which undoubtedly went to senior management in O’Brien, actually made known to senior management in SPG Investments the circumstances of the break-in. On either basis (actual knowledge, or knowledge of its agent), and contrary to the finding of the trial judge, SPG Investments was aware of the weakness in physical security prior to 17 March 2010.

9. [145]

   If further support be needed, it may be found in the incident reports for the month of February 2010. First, there was an incident report for 10 February 2010 in the terms set out at [81] above, which expressly identified the appellant as being involved. This entry was revealing as to the practices adopted by security officers in the case of an incident. No criticism was made of Dynamite Security, or the appellant, on the basis of steps taken on the morning of 10 February 2010.

10. [146]

    There were three further incidents in February. Two involved damage to vehicles in the basement car park; the third involved a theft of property from the Dick Smith store. All three incidents were reported to Allison Hall. With respect to the vehicle damage cases, a summary of the reports stated that the cause of the damage had been identified as a part of the basement car park where “liquid drips from the roof on to the car and damages the paint.” The summary ended:

11. [147]

    Even if SPG Investments had not actually been aware of the incident in February 2010 and the mechanism by which the intruders obtained entry (contrary to the finding above), I would be satisfied that they ought to have been aware of the absence of a physical barrier preventing entry over the roller door. It may be inferred from the security experts’ joint report that the taking of reasonable care to prevent entry to the premises, which would no doubt have protected tenants’ property, as well as limiting the risks to security staff, should have been identified through a security check. Further, the experts were satisfied that the problem was capable of ready rectification in a manner sufficient to dissuade intruders from attempting such access, namely the temporary fixing of wire mesh, whilst considering a more permanent structural solution. The cost estimate was challenged by SPG Investments as not a matter about which security experts could usefully opine. The question of expertise in this respect is beside the point; there is no reason to suppose the estimate of $5,000 was not realistic. That order of cost was not disproportionate to the risks involved; it was of the same order, no doubt, as the costs of repairing the smashed door and making good losses involved with the February intrusion.

12. [148]

    I am satisfied that there was a breach of duty on the part of SPG Investments towards a class of persons which included the appellant.

(d) breach – Business Protection

1. [149]

   The judge made different findings with respect to Business Protection. First, on the basis of the email from Mr Stanwix on 10 February 2010, he was satisfied that Business Protection was aware of the gap over the roller door which had allowed the intruders to enter. [83] He rejected the proposition that Business Protection had not provided adequate training; that finding is not challenged. However, a second finding, in the following terms, was challenged:

2. [150]

   It is convenient to note a further passage in the judgment dealing with Dynamite Security. The judge stated:

3. [151]

   Given the nature of the duty owed by Business Protection to the appellant, it is necessary to understand what the judge meant by stating that Mr Stanwix’ response was “a reasonable one”. Based on the evidence relied on by the trial judge, it must be inferred that he had found that sending the email to Mr Thompson of O’Brien on the morning after the February incident was not only a reasonable action, but was a sufficient precaution in the exercise of reasonable care for the appellant (and other security staff).

4. [152]

   If that were the only step that Mr Stanwix (or Mr Gerald James or Ms Marie O’Donnell) took, that cannot be accepted. What may be accepted is that Business Protection had no power itself to rectify the weakness in the building security. However, reasonable precautions required more than a single email on the morning the weakness was identified as an “issue” which required O’Brien to take action. Business Protection ought reasonably to have undertaken a risk assessment to determine what steps were necessary to alleviate or mitigate the risk and should have advised O’Brien accordingly. If O’Brien had advised that such steps would not be taken, alternative action might have been required on the part of Business Protection. However, in the absence of evidence from any of the respondents to indicate that any action was taken at all, after the sending of the email at 11.58am on 10 February, I would be satisfied that there was a failure on the part of Business Protection to take reasonable steps in the exercise of its duty of care. It is significant that the February incident report noted that Allison Hall had been contacted in relation to the damage to motor vehicles and was taking “necessary action to fix.” No such follow up was noted with respect to the break-in on 10 February. Business Protection was in breach of its duty of care to the appellant.

5. [153]

   In this Court, Business Protection took a stronger position than that taken by the trial judge. By its notice of contention it alleged that “a reasonable person in [its] position would not have taken any precautions to prevent any unauthorised entry by intruders on to the premises, including by eliminating the gap above the roller shutter doors.” [84] That contention should be rejected.

(e) breach – Dynamite Security

1. [154]

   The judge’s finding with respect to Dynamite Security has been set out above. There is no doubt that Dynamite Security was well aware of what happened on 10 February 2010. The incident report describes its supervisor on site, Bill Morris, as having been contacted immediately security staff became aware of the incident. There was also evidence given by the appellant that he and Mr Morris had sat down to go through the CCTV footage the following day. [85]

2. [155]

   There was no evidence from any person on behalf of Dynamite Security. There was no other source of evidence identified in this Court which might have suggested that Dynamite Security took any steps at all with respect to the risk identified by the 10 February break in. There was no basis to consider that the appellant’s employer had any lesser an obligation in respect of a duty to protect him from violent intruders than did Business Protection. It is apparent that, if Business Protection was in breach of its duty, which the trial judge considered was analogous to that of an employer, Dynamite Security was also in breach.

Causation

1. [156]

   The question of causation may be dealt with on a common basis with respect to all three respondents. As has been noted, the trial judge did not deal with this issue, having found either no duty of care owed, or, if a duty were owed, no breach. On the appellant’s case, the question of causation was straightforward. If steps had been taken to prevent the intruder obtaining access to the Centre over the roller door, the confrontation would not have occurred and the injury would not have been suffered. Absent some countervailing contention, that position should be accepted.

2. [157]

   The primary argument raised in opposition to that conclusion was the contention of the first respondent, SPG Investments. Its submissions in this respect had two limbs. The first involved a factual element identified in the following terms in the written submissions: [86]

3. [158]

   With respect, this was largely speculation. The intruder did not use the axe to obtain access to the Centre, nor can it be inferred that he intended to do so. If any inference can be drawn it is that he was heading to the Dick Smith store and intended to gain access to that retail outlet with the axe. Further, the fact that an assault could have occurred at some other time and by the gaining of access by some other means does not lead to the conclusion that the particular means adopted in the present case were irrelevant. Different circumstances would have raised different questions as to whether one or all of the respondents was negligent and in a way causative of the harm suffered.

4. [159]

   SPG Investments sought to obtain a legal foundation for its submission from the reasoning of two members of the High Court in Modbury Triangle. The first passage appeared in the judgment of Gleeson CJ:

5. [160]

   This passage is not to the point. As the Chief Justice noted in raising the issue of causation:

6. [161]

   The second passage relied upon, from the judgment of Callinan J, was as follows:

7. [162]

   Although the first limb of the contention reflected this reasoning, the underlying premise is different. In Modbury Triangle no duty was established; nor, in the present case, did the intruder bring the axe to attack a person.

8. [163]

   The second limb of the contention was based upon a passage in the judgment of Applegarth J in the Queensland Court of Appeal in Westpac Banking Corporation v Jamieson. [89] The passage in question should be set out in full:

9. [164]

   This passage was addressing the equivalent of s 5D(1)(b) of the Civil Liability Act, dealing with the “scope of liability”, as opposed to factual causation. Jamieson was a case far removed from the present; it involved claims for damages for negligence (and other causes of action) deriving from inadequate financial advice in relation to investment opportunities. Having found that factual causation was established, the Court considered whether there was any reason to limit the scope of liability and concluded that “[t]here is no principle, and no consideration of justice and equity, why the Bank should not be legally responsible for the loss which its breaches caused.” [90] The passage from the judgment set out above appears in a generic statement of principle, before focusing upon the requirements of the Queensland equivalent of s 5D(1)(b), at [104]. It is necessary to look at the factual circumstances relied upon by SPG Investments in order to identify whether they properly fall within the scope of considerations to be considered under s 5D(1)(b). Those factors have been set out above. In my view they provide no reason why, if factual causation be established, SPG Investments should not be held liable.

10. [165]

    By way of contrast, Business Protection provided submissions in support of a relevantly identical contention commencing with the proposition that responsibility lay with SPG Investments, and not with Business Protection.

11. [166]

    The first limb of Business Protection’s contention was that even if SPG Investments did not have the relevant knowledge of the February incident, it should not be held that Business Protection “should have done more to ensure SPG had actual knowledge of the gap … because even with perfect knowledge of it, and of Capar’s allegation that it was causative of his grief, SPG did nothing.” [91]

12. [167]

    The submission should not be accepted; first, on the basis that it goes to breach rather than causation. Secondly, there was no evidence adduced by Business Protection that it had taken all reasonable steps to have SPG Investments remove or mitigate the risk, so that it cannot assert that had it done so, no steps would have been taken.

13. [168]

    The second limb of Business Protection’s contention was a variation of that put forward by SPG Investments, namely that the appellant could have been assaulted whilst undertaking other activities. These include patrolling outside the perimeter of the building, as required by the operating manual. Further, it was said that an intruder could have reached the first level of the building without scaling the roller door, because “it would be readily accessible by ladder from the ground floor, or by scaling any of the columns and signage infrastructure attached thereto.” [92] It was therefore said that “[t]he risk of harm was not created or increased by the presence of the gap.” [93]

14. [169]

    As with the first respondent’s submissions, it is unclear whether the submissions were directed to s 5D(1)(a) (factual causation) or (b) (scope of liability): no attempt was made by either respondent to come to grips with the elements of the statutory scheme. If directed to factual causation, as noted above, the existence of a separate risk, whether avoidable or not, does not diminish the fact that a specific risk materialised, which involved a breach of duty. If the submissions were directed to the scope of liability, it was not a sufficient answer to a claim in negligence that the premises had other dangers (whether the result of negligent or innocent conduct was not identified) which could have given rise to criminal activity and resultant harm.

15. [170]

    There was no reason to deny the proposition that causation was established on the evidence in the present case.

Other defences – inherent risk

1. [171]

   The trial judge upheld a submission on behalf of SPG Investments and Business Protection that the risk faced by a security guard in the position of the appellant was one which “cannot be avoided by the exercise of reasonable care and skill” and therefore the respondents were not liable in negligence for the harm suffered as a result of its materialisation, pursuant to s 5I of the Civil Liability Act. [94]

2. [172]

   Reliance on s 5I, in circumstances where there was no breach of duty established, was both unnecessary and misconceived. Indeed, at least in a case such as the present, it is doubtful that s 5I serves any independent purpose. The idea that a person could owe a duty of care in respect of a risk which cannot be avoided by the exercise of reasonable care sounds like an oxymoron. It is possible that this is not so because the formulation of the duty and the identification of the risk may occur at different levels of particularity. However, the possibility that a defendant could be held liable for breach of a duty of care in respect of a risk, materialisation of which cannot be avoided by the exercise of reasonable care, is clearly incoherent. In short, s 5I adds nothing to the analysis of breach required to be undertaken pursuant to s 5B. It does not even provide a shortcut to avoid the analysis under s 5B because the condition of engagement of s 5I requires analysis of whether the risk could be avoided by the exercise of reasonable care and skill.

3. [173]

   In practical terms, s 5I is otiose. It was not recommended in the Final Report, which therefore provides no guidance as to its intended purpose.

Contributory negligence

1. [174]

   Although the trial judge made no finding of contributory negligence, understandably in circumstances in which he found the appellant was solely responsible for his own misfortune, the respondents contend that such a finding should be made if liability were to be upheld.

2. [175]

   For the reasons outlined above, those contentions should be rejected. The appellant acted entirely in accordance with the expectations of Business Protection and Dynamite Security, as revealed in the emails sent on the following morning. He also acted consistently with that which had been expected of him on the earlier occasion in February 2010 when there had been a break-in. If there was some criticism of his seeking to discourage the intruder by shouting “security here”, that conduct was, at worst, a misjudgement in fraught circumstances. The appellant clearly intended to dissuade the intruder from continuing with his unlawful conduct; a purpose which, although the immediate response was a threat to kill, was actually successful. There was no further criminal activity and the intruder fled, before being captured by police.

Relief

1. [176]

   It remains to consider the question of relief. For the Court to address that issue requires it to address and resolve challenges to the judge’s assessment of damages. The relief sought in the amended notice of appeal was for a remittal for a new trial “on all issues.” However, in the unusual circumstances of the case, that course should be avoided if reasonably possible, for a number of reasons.

2. [177]

   First, the appellant has established liability for psychological injury suffered more than a decade ago, in the course of an incident lasting a few minutes. The delay, the expense involved in another hearing, and the nature of the appellant’s harm militate against such an outcome.

3. [178]

   Thus, there was no dispute that at the time he gave evidence the appellant was suffering from a depressive illness and PTSD. He had not been employed since the incident in March 2010, a period of more than seven years. Over that period he had obtained treatment from a number of medical practitioners. He had also been using cannabis and alcohol. There was reason to expect cross-examination on two topics, namely his compliance with the operating procedures in place at the time of the incident and, secondly, aspects of his lengthy medical history. Nevertheless, one would expect a degree of sensitivity in the length and structure of the cross-examination. Yet senior counsel for SPG Investments, which may on one view have had less interest in these two issues than other respondents, undertook a cross-examination which covered 222 pages of transcript and ran from day one to day five of the hearing. Cross-examination by the other two respondents covered 28 pages of transcript. As has been noted, some of the questioning was unfair and much was unproductive.

4. [179]

   It is, of course, difficult for this Court to judge on the basis of a transcript, but there were many passages in which the witness appears to have displayed lack of attention and frustration. However, it is also unclear what assistance the trial judge obtained from observing the witness give that evidence, in circumstances where the plaintiff left the witness box on 22 September 2017 and judgment was delivered on 13 May 2019, some 20 months later.

5. [180]

   Secondly, it has been possible for this Court to resolve issues relating to liability. Although the trial judge made adverse findings in relation to the knowledge and understanding of the operational documents which formed a major part of the cross-examination of the appellant, and regarded Mr Flanders as a “difficult witness”, issues of liability were able to be determined without taking issue with the judge’s findings as to credit and reliability, on the basis of other unchallenged evidence and documentary material. It is less clear that such a course is available with respect to the assessment of damages. That is not to say that this Court is not in a good position to understand and evaluate the evidence of the medical experts; the issue arises from the need to make findings as to the appellant’s medical history and conduct generally, in so far as it affected his mental illness. The relevant issues fell into two categories. First, there was lengthy cross-examination as to the state of the appellant’s mental health prior to the incident in March 2010. That involved taking the appellant through a personal history at least as far back as 1994, when, at age 17, his father murdered his mother, though not in his presence, but in the presence of his siblings. The second set of matters concerned his medical history and conduct immediately following the incident in March 2010 and continuing through his psychiatric treatment and relevant conduct for a period of years thereafter.

6. [181]

   However, the extent to which a further hearing would be productive of useful evidence in relation to these matters may be doubted. Given his mental illness, there would be issues as to the reliability of any account he gave which would be difficult to resolve satisfactorily in a courtroom setting. There is also the risk that a further hearing might exacerbate any existing condition.

7. [182]

   Thirdly, for reasons explained below, the Court can undertake the task of assessing damages on the basis of the existing evidential material, both documentary and in the transcript. That exercise can be undertaken without reliance on challenged evidence of the appellant. The cross-examination was based on histories given by the appellant and recounted in medical reports, which histories were objectively erroneous or incomplete. Further, the judge preferred the expert evidence of Dr Lewin to that of Dr Phillips. In many respects, as Dr Lewin noted in his oral evidence, they were in agreement; nevertheless, it is appropriate to disregard the aspects of Dr Phillips’ evidence which the trial judge appears not to have accepted.

8. [183]

   Fourthly, it is clearly in the interests of the expeditious resolution of the remaining issues in the proceedings for this Court to assess damages, if it can do so without material unfairness to any party. Part 6 of the Civil Procedure Act 2005 (NSW) mandates such a course. The evidence as to damages was called and tested in 2017. On the basis of the approach to that evidence identified above, this Court should dispose of the proceedings.

Damages

1. [184]

   An assessment of damages was undertaken by the trial judge, on a contingent basis. That assessment was the subject of a broad ranging challenge in the amended notice of appeal, in the following terms:

(a) key issues in assessment undertaken by trial judge

1. [185]

   The basis upon which the assessment of damages may be undertaken by this Court involves the acceptance of the judge’s findings as to the unreliability of the appellant’s evidence as to his medical history. Unreliability was established by reference to medical records. In other words, to the extent that the appellant denied suffering from depression in the period up to early 2005, that denial was rejected on the basis of contemporaneous medical records. The medical records should be accepted as the best evidence as to his condition in that period.

2. [186]

   The appellant’s case was that he did not have significant mental health issues between early 2005 and the incident in March 2010. Again, it was open to the judge to reject the reliability of his account in respect of that period. However, the appellant is entitled to rely upon the absence of medical records demonstrating ongoing psychological problems in that period and is entitled to rely upon his work record to indicate his capacity at that time. Those matters are unaffected by the rejection of his oral evidence. His complaint in this Court is that the trial judge focused only on the rejection of his evidence and failed to have proper regard to the objective material, and to the evidence of his partner at that time Melissa Smith. The appellant submitted that, on a proper assessment of the evidence, he had not suffered from any disabling psychological condition for a period in excess of four years prior to the incident in March 2010. As will be explained below by reference to the evidence, that submission should be accepted.

3. [187]

   A consequence of the rejection of the appellant’s evidence as to his pre-2010 history is that it could not provide the basis for an assessment of his post-2010 condition by a psychiatrist to whom an inaccurate subjective account was provided and who relied upon it in forming an opinion as to the effects of the events of March 2010. On the other hand, a psychiatric opinion based upon objective evidence as to the pre-2010 situation could be relied upon by the Court in assessing the effects of the March 2010 incident.

(b) pre-2010 medical history

1. [188]

   The trial judge set out the appellant’s background and history, particularly in the period from his mother’s death in 1994 until January 2000. [95] As to that period, the appellant’s account in cross-examination, recorded by the trial judge, was largely consistent with the medical records, subject to one qualification: the appellant denied that in 1997 he was using marijuana to “an excessive degree”. He agreed that he was still taking marijuana “occasionally, on a social basis”. [96] Relying on a 1997 medical note, “withdrawal from marijuana”, the judge inferred that there was “more than occasional use.” [97]

2. [189]

   The appellant saw Dr Robin Haig, psychiatrist, at Campbelltown in December 1999. The judge noted Dr Haig’s report that the appellant “did not appear to be seriously depressed”, [98] although on 14 January 2000 Dr Summers, a general practitioner, issued a medical certificate identifying “major depression”. Nothing turned on that discrepancy. The appellant agreed that from the period from 1994 to the end of 1999 he was suffering from “severe depression”, but was “working through it.” [99]

3. [190]

   The appellant gave evidence that he was working as a transit officer on the trains at the time of the Olympic Games in 2000. He also said that he obtained his security licence in 2000, in classifications 1A, 1B and 1C. [100] He had a number of jobs as a security officer. [101]

4. [191]

   Because it appeared that counsel was cross-examining from later medical records, there was no chronological consistency in the cross-examination. The discussion of work as a security officer jumped from 2000 through to 2009, before abruptly returning to medical consultations in 2004. [102] He was asked about consultations in May 2004 which he said he could not recall. Following an adjournment, the cross-examiner returned to February 1996, and marijuana usage, questioning him about the anti-depressant Aropax. [103] There was a lengthy cross-examination about the interview with Dr Haig in December 1999 and eventually the cross-examination returned to May 2004. [104]

5. [192]

   The appellant was adamant that he was not taking medication for depression in or around 2004-2005 and did not recall consultations with three separate medical practitioners in May and June 2004. When asked whether he saw Dr Summers on 7 January 2005, with continuing depression, he said “I don’t believe so.” He believed he was “completely normal” at that time. [105] The trial judge noted that “those denials are not consistent with the objective evidence.” [106] The records of consultations for depression, and the prescription of anti-depressants, in that period is to be accepted and the appellant’s inconsistent oral evidence rejected.

6. [193]

   The cross-examination, after some false starts, then moved forward to an unidentified time in 2007 when he started going to Bonnyrigg Family Medical Centre. The judge recorded:

7. [194]

   The trial judge then recorded certain views of the appellant’s evidence, before turning to consider the reports of Dr Phillips and Dr Lewin, who gave expert psychiatric evidence. The findings of the judge with respect to this period were as follows:

8. [195]

   There are aspects of this finding which are troubling. The fact that the evidence was “vague” in some respects, was unsurprising. The appellant had, as the judge accepted, “suffered depression after the horrific experience of his mother’s death.” However, the evidence which was said to be vague related to events which occurred no more recently than 10 years prior to the trial. (The consultations not recalled in 2004 were 13 years before the trial.) Although it was of course true that the trial judge had had an opportunity to observe the plaintiff giving evidence, it is troubling that he concluded that the appellant “regularly, and deliberately, attempted to downplay” aspects of his medical history, without considering the possible effects of more recent episodes of mental illness and drug taking. In any event, nothing turns on the findings as to subjective elements in giving evidence for present purposes. The judge’s assessment of those elements of the appellant’s oral evidence are accepted.

9. [196]

   More importantly, the judge took no account of the critical fact that from about January 2005 until the date of the incident, there was no objective evidence of ongoing mental health problems. Nor was it put to the appellant in cross-examination that he had ongoing mental health problems during that period.

10. [197]

    The judge made a finding in relation to drug use in the following terms:

11. [198]

    Stated abstractly, that finding is apt to mislead. The reference to “addiction” was based solely on the word “withdrawal” in Dr Summers’ note of 9 January 1998. There was nothing to suggest disabling or addictive levels of use of marijuana thereafter. The cross-examiner did not suggest he smoked marijuana otherwise than on a casual or social basis after December 1999. [107] It is difficult to find any evidence of abuse of alcohol prior to March 2010. The cross-examiner did not suggest any relevant abuse of alcohol in that period.

12. [199]

    Finally, although the judge noted that Dr Lewin was taken to the evidence of the appellant’s former partner, Ms Smith, [108] it was only in that context that the trial judge considered Ms Smith’s evidence. It is convenient to set out the passage in which that matter was addressed:

13. [200]

    The following observation should be made in respect of those findings. As has been noted, the medical evidence did not demonstrate that the appellant suffered from depressive illness in the period 2006-2010. Nor was it clearly put to Ms Smith that he did. Ms Smith was cross-examined as to their joint drinking and consumption of marijuana in the period from the early part of 2004 through to March 2010. [109] The questions about depression related to the period between late 2003 and 2005. [110] There were a few brief questions in relation to the period 2005-2006. [111] It was not suggested to Ms Smith that he was exhibiting symptoms of depression thereafter. Her evidence in chief was to the contrary. She had stated in an evidentiary statement: [112]

(c) pre-2010 employment history

1. [201]

   Before turning to the expert reports, it is appropriate to have regard to the pre-March 2010 work history of the appellant. His first employment as a security guard, noted above, was working for Chubb Security as a transit officer during the Olympic Games in 2000. His second evidentiary statement of 8 May 2017 dealt with the period between 2000 and 2007 in the following terms: [113]

2. [202]

   He was cross-examined with respect to some of that work experience to suggest that he was unwilling to stay in one position for more than a few weeks or months and that he left on occasions after a disagreement with management.

3. [203]

   His first evidentiary statement further noted that from 2007 to 2009 he worked for SMP Security at Sydney Airport, screening passengers and baggage. Between about July 2009 and the incident in March 2010, he worked for Dynamite Security, predominately at Lidcombe Power Centre, but also at another location. Although this work history was by no means indicative of steady employment, it is clear that he had spent some nine months in the job he held in March 2010.

4. [204]

   Further, to the extent that the psychiatrists considered that previous trauma rendered him susceptible to further disorders, it is significant that he was involved in the February 2010 incident without apparent harm. There was no evidence of any work-related issues arising between him and Dynamite Security, prior to the event on 10 March 2010. These circumstances were not adverted to by the trial judge in forming a view as to the effect of the March incident on his mental health.

(d) conclusions of trial judge

1. [205]

   It is convenient to identify the end point of the judge’s assessment of his medical condition resulting from the incident. After considering the evidence of Dr Phillips and Dr Lewin, the judge reached the following conclusions:

2. [206]

   There are two aspects of Dr Lewin’s evidence which should have affected these conclusions. First, the concession made by Dr Lewin, based on the evidence of Ms Smith, should have been taken into account; as has been noted, it was wrong to reject Ms Smith’s evidence on the basis explained by the trial judge. In fact, Dr Lewin’s concession was appropriate. However, it is helpful to set out the critical question and the answer given: [114]

3. [207]

   The evidence that Mr Capar was susceptible did not deny the causal connection between the incident in March 2010 and the post-March 2010 psychiatric conditions. The question of causation was noted by the trial judge in the following passage:

(e) findings as to disability

1. [208]

   The judge’s conclusion as to “a degree of” chronic post–traumatic stress disorder (he did not refer to the depressive condition) appears to have been greatly qualified by the finding as to marijuana use. That appears from the allowance of past economic loss for a total period of 6 months. This reasoning may have found support in Dr Lewin’s primary opinion, expressed in a report prepared in December 2013 in the following terms:

2. [209]

   Dr Lewin’s description of use of marijuana was expressed in the present tense and related to post-2010 conduct:

3. [210]

   This account of marijuana use was consistent with the appellant’s own evidence and that of his former partner, Ms Smith. What was not apparent from Dr Lewin’s description was the far more limited usage prior to the incident in March 2010. His acceptance in cross-examination of the link between the appellant’s decline to being unemployable and his addiction to marijuana after the March 2010 incident, by way of contrast with his use of marijuana before the incident, as intermittent and involving far lower quantities, involved an important qualification of his initial opinion.

4. [211]

   The underlying principle to be applied in relation to assessment of damages depends on the application of the so-called “eggshell skull” (or “egg-shell psyche”) rule, which applies equally to physical conditions and psychiatric illness, such as post-traumatic-stress disorder. [115] There was no relevant history of mental illness immediately before the incident, or indeed for some years before the incident. Further, although there was evidence of consumption of alcohol prior to the incident, it was not at a level which allowed a finding that abuse of alcohol was disabling in any relevant sense. There was evidence of pre-March 2010 intermittent use of marijuana on a reasonably frequent basis, but it was apparent that that use had escalated to the level of an addiction and become physically disabling post-March 2010. However, the causal connection between that use of marijuana and the incident in March 2010 is, as Dr Lewin accepted, “convincing.”

(f) findings – economic loss and expenses

1. [212]

   In terms of economic loss, the judge was entitled to take into account the irregular work history prior to the incident. The appellant gave evidence that he was passed over for some forms of work because of his small stature, which was unattractive to employers of security guards for some kinds of work. It was also appropriate to take into account the casual and irregular nature of his employment, and the fact that he tended to move from one job to another.

2. [213]

   On the other hand, the diagnoses of chronic post-traumatic-stress disorder and depressive disorder indicated permanent conditions. Dr Gertler, who assessed his degree of permanent impairment for the purposes of worker’s compensation, accepted the impairment as permanent and quantified it as 22% of whole person impairment. (Those findings were not affected by the inadequate pre-March 2010 history he was given.) Dr Akkerman, psychiatrist, made a similar assessment in December 2011. In 2016 Dr Phillips quantified his level of whole person impairment as 24%. Dr Phillips did not foresee him being able to find and hold an appropriate job in the open workforce.

3. [214]

   The appellant’s written submissions asserted that there was “obvious difficulty” in “unravelling” matters related to the March 2010 incident and prior psychiatric difficulties. However, the appellant submitted that the hypothetical assessment should be adjusted for vicissitudes.

4. [215]

   Subject to questions of onus of proof, which do not arise in the present case, that approach is consistent with the fixing of damages for economic loss pursuant to s 13 of the Civil Liability Act. The first step, as noted by the trial judge, is to identify the assumptions about future earning capacity by reference to the claimant’s “most likely future circumstances but for the injury”: s 13(1). The judge stated that he could not be satisfied that but for the injury, the appellant “would have continued to work as a security officer.” [116] I do not understand the judge to have thought he would have had some other form of employment, but rather that he was rejecting the proposition that there would full-time, continuous employment. The judge noted that the prior history consisted of positions which were “part-time, casual or intermittent”, and considered that to be the most likely form of employment in the future. That assessment should be accepted; there is no reason to reject the proposition that, but for the accident, he would have continued to work as a security guard.

5. [216]

   There is also no doubt that such employment would put him at risk of either witnessing or being subjected to traumatic incidents. It follows that there is a significant possibility that he would at some stage have suffered a further trigger of the kind to which he was undoubtedly susceptible, resulting in unemployability. Pursuant to s 13(2), it would be appropriate to adjust the amount of damages for future economic loss (and past economic loss) by 50%. The two elements of economic loss must, of course, be undertaken separately, to allow for the calculation of the present value of future economic loss, in accordance with s 14 of the Civil Liability Act.

6. [217]

   The primary judge accepted that the appellant’s pre-injury net weekly wages were $680. On the basis of a calculation undertaken as at the date of judgment in the court below, it will be necessary to adjust the plaintiff’s schedule of damages to take account of a longer period of past economic loss, and a shorter period of future economic loss. Further, the schedule calculated annual indexation for past economic loss at 2.5%. It is not clear that there was evidence to support that figure in relation to the security services industry, or at all. In the absence of evidence, the annual increments should be reduced to 2%. Future economic loss should be calculated by reference to anticipated retirement at age 67.

7. [218]

   The judge allowed for past treatment expenses in an amount of $34,161.30. That figure is not challenged. The judge allowed a figure for future treatment in an amount of $25,000, assuming the need to unravel treatment resulting from matters, such as marijuana use, extraneous to the injury. For the reasons set out above, in my view that unravelling is only partly appropriate. The plaintiff’s schedule claimed fortnightly attendances on a general practitioner and a continuation of the anti-depressant medication, the latter being calculated at $50 per week. Those two figures were $35,640 and $47,520 respectively. A further $5,000 was proposed in respect of future referrals for specialist treatment. The total for future treatment expenses claimed was thus $88,160.

8. [219]

   Given the acceptance by the psychiatrists that the appellant suffers from a chronic post-traumatic-stress disorder and a major depressive condition, the nature of the proposed treatments is not inappropriate. Counselling services have been used in the past by the appellant and might well be found to be valuable in the future. However, the frequency of visits to a general practitioner appears to be overstated. I would allow an amount of $75,000 for future treatment expenses.

9. [220]

   Given the slightly extended period, the reduced increments and the 50% reduction, the award for past economic loss is likely to be in the order of $150,000 and the award for future economic loss perhaps a little below $300,000. The actual figures, together with an allowance for superannuation and Fox v Wood damages, should be calculated and, if possible, agreed by the parties. If further calculation or assessment is required of the Court, that will be done by way of written submissions with no further oral hearing required, unless the Court is persuaded that a further oral hearing would be the most efficient way of resolving any outstanding problems.

(g) non-economic loss

1. [221]

   That leaves a question as to the calculation of non-economic loss. The judge allowed an amount calculated as 22% of a most extreme case, in accordance with s 16 of the Civil Liability Act. However, on the assumption that the judge underestimated the seriousness of the contribution of the March 2010 incident to the appellant’s mental health, that figure should be increased. The appellant submitted at trial that it should be in the range 40%-55%. However, some allowance should be made for the fact that pain and suffering of the kind now faced by the appellant may have been suffered in non-tortious circumstances in any event. In my view it is appropriate to increase the amount for non-economic loss by approximately one-third, namely to 30% of a most extreme case.

Apportionment

1. [222]

   The parties did not address the question of apportionment. There should be an opportunity for further written submissions on this issue. However, some indication should be given in the hope that a common position can be agreed.

2. [223]

   Because the reasonable precautions which would have avoided the materialisation of the risk involved a minor alteration, at least on a temporary basis, to the structure of the Centre, primary responsibility lay with SPG Investments. Arguably it should bear something in the order of 50% of the liability for the appellant’s loss.

3. [224]

   The remainder must be divided between Business Protection and Dynamite Security. Although an employer will, in fixing a safe system of work, bear the primary responsibility for employee safety, the fact that Business Protection was the party contracted by the owner to provide security services at the Centre, and consequently laid down the relevant processes and procedures to be followed by security staff, demonstrates that it also bears a significant level of responsibility. However, it was not those practices and procedures, nor the system of work, which ultimately failed the appellant. As has been explained, both Business Protection and Dynamite Security had a responsibility to pursue with the owner of the Centre the need for alterations to the physical structure. The responsibility for taking that step may, in broad terms, bear equally on each.

4. [225]

   There will be further calculations required as to the assessment of damages as against the third respondent (on behalf of Dynamite Security), and any necessary adjustments pursuant to s 151Z of the Workers Compensation Act. The parties will have leave to make further submissions in relation to that issue, if there remains any outstanding matter in dispute.

Conclusions

1. [226]

   The appeal should be allowed and the judgment below set aside. Each respondent owed (or represented a party which owed), and was in breach of, a duty to the appellant to take reasonable care for his safety whilst working as a security guard at the Centre. The various breaches of duty contributed to the psychological harm suffered by the appellant as a result of being threatened by the intruder on 10 March 2010. The appellant was not contributorily negligent. He is entitled to recover damages from each respondent.

2. [227]

   It is not possible to make final orders at this stage. The parties should be directed to identify issues which cannot be resolved by agreement and advise the Court accordingly. The matter will then be listed before the Registrar for such further directions as may be required.

3. [228]

   The Court should make the following orders and directions:

   1. (1)

      Allow the appeal and set aside orders (1)-(4) made in the Common Law Division on 13 May 2019.

   2. (2)

      Declare that the first, second and third respondents are liable in damages to the appellant.

   3. (3)

      Direct that the parties confer to determine the extent to which agreement can be reached as to:

   4. (4)

      Direct that the parties advise the Registrar by Friday, 29 January 2021 as to what issues, if any, are unresolved and what further directions are required for the resolution of any such issues.

4. [229]

   McCALLUM JA: I agree with Basten JA.

5. [230]

   EMMETT AJA:

Introduction

1. [231]

   Mr Capar sued SPG Investments, Business Protection and Dynamite in the Common Law Division of the Supreme Court, claiming damages on the basis that his psychiatric injury was the result of a breach of the duty that each of those defendants owed to him. Dynamite was deregistered on 7 December 2013 and the Insurer is sued as the entity liable to indemnify Dynamite.

2. [232]

   On 13 May 2019, for reasons published on that day, a judge of the Common Law Division (the primary judge) directed the entry of verdict and judgment for each of SPG Investments, Business Protection and the Insurer. His Honour also dismissed cross-claims brought by SPG Investments and Business Protection. By amended notice of appeal of 2 June 2020, Mr Capar appeals from the orders made by the primary judge.

3. [233]

   I have had the considerable advantage of reading in draft form the reasons of Basten JA for concluding that the appeal should be allowed. Unfortunately, I have the misfortune to disagree with the conclusion reached by his Honour on a critical aspect of the appeal, namely, whether there was a breach by SPG Investments, Business Protection or Dynamite of a duty owed by any of them to Mr Capar. I have concluded, for reasons that follow, that there was no breach of any duty owed to Mr Capar. Apart from that difference, I agree with the other conclusions reached by Basten JA.

Background

1. [234]

   During 2009 and 2010, Mr Capar was employed by Dynamite as a night-time security guard. Dynamite had entered into contractual relations with Business Protection, whereby Dynamite provided Business Protection with labour in the form of security guards. The security guards, including Mr Capar, were required to attend to their duties at the Premises. SPG Investments had entered into contractual relations with Business Protection whereby Business Protection provided security services at the Premises. Mr Capar’s duties required him to man the Premises alone when they were closed at night. He was required to perform patrols of the Premises both internally and externally and had various other responsibilities.

2. [235]

   During Mr Capar’s evening shift of 9 and 10 February 2010, two intruders gained entry into the Premises by climbing over a roller shutter that protected one of the fire stairs in the Premises. Mr Capar investigated the intrusion and found that the intruders had smashed their way into a store in the Premises, stole merchandise from the store and decamped. There was no evidence that the intruders were apprehended.

3. [236]

   The break-in in February 2010 was reported to the police and was the subject of various emails on the following day between persons involved in the control and management of the Premises. There was a question as to the capacity in which those various persons received the emails. In the course of the emails, the gap above the roller shutter, through which the intruders entered the Premises, was identified as a security weakness. However, nothing was done to rectify the weakness.

4. [237]

   In the early morning of 17 March 2010, while attending to his duties alone at the Premises, Mr Capar observed, on the security camera in the security room that he occupied, a man with a duffel bag outside the Premises. The man ran in the direction of the roller shutter where the break-in had occurred in February 2010. That area was out of sight of the camera. Mr Capar left the security room, went up the escalators to a higher level of the Premises and stood there waiting to see whether anybody had entered. Mr Capar observed the man that he had seen on the security camera and called out “security”. The man raised an axe and threatened to kill Mr Capar. Mr Capar turned and ran back to the security room and immediately called the police and his supervisor. The intruder then left the Premises but shortly afterwards was apprehended by police and charged with offences to which he pleaded guilty. As a result of the sudden shock that Mr Capar experienced when threatened, he suffered psychiatric injury.

Mr Capar’s Claims

1. [238]

   In his second further amended statement of claim filed on 18 September 2017, Mr Capar asserted that SPG Investments was the owner and occupier and had the care, control and management of the Premises and had entered into contractual arrangements with Business Protection. He asserted that SPG Investments, as the owner and occupier of the Premises, being responsible for their care, control, and management, owed a duty to all persons who were lawfully on the Premises to exercise reasonable care for the safety of such persons.

2. [239]

   Secondly, Mr Capar asserted that, having regard to the purpose for which and the circumstances in which he was on the Premises, SPG Investments owed him a more generalised duty of care, arising from its position as occupier, in relation to any risk of injury to which he might have been exposed whilst on the Premises. Finally, Mr Capar asserted that, in the light of the incident of February 2010, the duty of care owed to him by SPG Investments extended to taking reasonable care to protect any security guard, who was in attendance at the Premises when they were closed, from risk of injury following upon the unauthorised entry onto the Premises by any person, where such entry was gained by means of climbing over the roller door.

3. [240]

   Mr Capar also asserted that, by reason of its contractual arrangement with SPG Investments, Business Protection was also an occupier of the Premises and owed a duty to exercise reasonable care for the safety of persons who were lawfully on the Premises. He also asserted that, having engaged Dynamite to discharge its contractual obligations to SPG Investments, Business Protection owed Mr Capar a duty of care that was analogous to that owed by an employer to an employee, including a duty to exercise reasonable care in the provision of a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same allegation against Business Protection as he made against SPG Investments in relation to unauthorised entry gained by way of the roller door following the February incident.

4. [241]

   Mr Capar’s claim against the Insurer was that, in circumstances where Dynamite employed him as a security guard and, together with Business Protection, directed him to attend at the Premises and undertake security services there, Dynamite owed him a non-delegable duty to exercise reasonable care for his safety as an employee, including a duty to provide a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same claim against the Insurer as he made against SPG Investments and Business Protection in relation to unauthorised entry gained by way of the roller door following the February incident.

5. [242]

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

The Civil Liability Act

1. [243]

   The Civil Liability Act 2002 (NSW) (the Civil Liability Act) does not prescribe the circumstances under which a duty of care arises. However, it imposes constraints on the existence of a duty of care in particular circumstances. The only injury suffered by Mr Capar was mental harm. Accordingly, s 32 of the Civil Liability Act was relevant. Under s 32(1), a person (defendant) does not owe a duty of care to another person (plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. Relevantly for the purpose of s 32, the circumstances of the case include whether or not the mental harm was suffered as the result of a sudden shock and whether or not there was a pre-existing relationship between the plaintiff and the defendant. However, s 32 does not require the Court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. That provision does not appear to have any application in the present case.

2. [244]

   Section 5I of the Civil Liability Act relevantly provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Section 5G relevantly provides that, in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. SPG Investments and Business Protection both relied on both provisions.

Duty of Care

1. [245]

   The primary question is whether the duty of care owed to Mr Capar by any of SPG Investments, Business Protection and Dynamite extended to preventing unauthorised entry into the Premises after hours by an intruder who might, by his actions, cause injury to Mr Capar. Much of the evidence and argument focused on the incident in February 2010, when the two intruders entered the Premises by climbing over the roller shutter in the same way as it appears that the intruder who threatened Mr Capar climbed over on 17 March 2010. There was no suggestion that, prior to the incident in February 2010, any of the parties was aware or had reason to be aware of the possible security defect constituted by the gap between the top of the roller door and the ceiling above it. Essentially, Mr Capar asserted that, because SPG Investments, Business Protection and Dynamite were aware of that defect in the security, they had a duty to Mr Capar to eliminate it. There is considerable dispute as to which of SPG Investments, Business Protection and Dynamite had knowledge of the security deficiency. It is convenient to consider the matter first on the basis that each had relevant knowledge.

2. [246]

   It was common ground that SPG Investments owed a duty of care to Mr Capar. On one view, the concession that SPG Investments owed a duty of care to Mr Capar was sufficient to dispose of the issue on the basis that, if there were a means of access to the Premises, which was not properly secured, SPG Investments had the capacity to take reasonable steps to rectify any lack of proper security in relation to access to the Premises.

3. [247]

   The duty of an occupier of a building is to take reasonable care for the safety of persons in the building. The question in the appeal was the content of that duty. As the owner of the Premises, SPG Investments had responsibility for the physical elements of the security of the Premises, including doors. The question is whether that duty included providing a secure perimeter during hours when the Premises were not open to the public. More particularly, the question is whether SPG Investments was under a duty to take particular steps in relation to access over the roller door in order to prevent harm to a security guard employed to work alone on the Premises after normal business hours.

4. [248]

   Mr Capar’s case must be that SPG Investments owed him a duty to prevent unauthorised entry into the Premises after hours. It is possible to test Mr Capar’s case by considering the position that might have prevailed had the roller door not been present at all. In those circumstances, it would have been possible for intruders to walk up the fire stair in order to gain access to the Premises. On Mr Capar’s case, that would have been a breach of the duty owed to him. It may be that SPG Investments owed a contractual obligation to its tenants to afford security. That, however, is beside the point. The question is whether SPG Investments owed a duty to Mr Capar, a security guard employed by Dynamite, whose services were provided to Business Protection, which had contracted to provide security services to SPG Investments.

5. [249]

   The object of Mr Capar’s presence in the Premises was to observe the Premises and, in the event of unauthorised intrusion, to report that circumstance to the police. Clearly, the very fact that Business Protection was retained by SPG Investments to provide security guards indicates an expectation that there may be intruders attempting to gain access to the Premises. It would be curious, therefore, for SPG Investments, as occupier of the Premises, to be held to owe a duty to a security guard, whose function was to report intruders, to take steps to ensure that there were no intruders. I do not consider that SPG Investments owed to Mr Capar the duty formulated above.

6. [250]

   The claim against Business Protection and the Insurer was based on the assertion that Mr Capar was not provided with a safe system of work. Business Protection disputed that it owed a duty to Mr Capar to provide him with a safe system of work. I shall assume, for present purposes, that it owed the same duty that Dynamite owed to him as his employer.

7. [251]

   The system under which Mr Capar was required to work enabled him, by means of security cameras, to observe the intruder on the morning of 17 March 2010. Mr Capar’s duties did not require him to leave the security room. Had he remained there, there is no reason to doubt that he would have been perfectly safe and would not have been threatened. Nevertheless, Mr Capar left the comfort of the security room in order to ascertain whether or not the person that he had observed on the security camera had in fact gained access to the Premises. He was not required by his system of work to do so. Indeed, it was contended that Mr Capar failed to abide strictly by the instructions of Business Protection as to the manner in which he was to discharge his duties. Thus, by reason of the incident in February 2010, he was aware of the security defect. He hoped that, by making his presence known, the intruder would flee. In fact, the intruder fled without causing any damage to the Premises or stealing any property, but not before making the threat to Mr Capar’s life. In the circumstances, I do not consider that there was a failure by Business Protection or Dynamite to provide Mr Capar with a safe system of work.

8. [252]

   It is not clear how close the intruder came to Mr Capar. The evidence rather suggests that it was not closer than 20 or 30 metres. That, it appears, was sufficient, when coupled with the threat of death with the axe, to cause Mr Capar psychiatric injury. The question that arises under s 32 of the Civil Liability Act is whether SPG Investments and Business Protection ought to have foreseen that a person of normal fortitude might, in the circumstances of this case, suffer a recognised psychiatric illness if reasonable care were not taken. The primary judge concluded that it was not reasonably foreseeable that the intruder might threaten Mr Capar in the way in which he did. His Honour also concluded that Mr Capar’s conduct, in drawing attention to his presence, was not foreseeable. The question is whether his Honour erred in those conclusions.

9. [253]

   It is arguable that the requirement to consider the circumstances of the case is not a requirement to inquire whether the circumstances were reasonably foreseeable but whether, in the circumstances found, a person of normal fortitude might suffer psychiatric illness. Section 32 would be attracted if SPG Investments, Business Protection or Dynamite ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness as a consequence of a breach of duty owed to Mr Capar.

10. [254]

    Business Protection had no physical presence in the Premises and therefore was not an occupier of the Premises. Its liability turned upon its role, either as an employer or as an independent contractor. Business Protection had not delegated its responsibilities entirely to Dynamite. Rather, it maintained a significant degree of control over the services provided by security guards, including by providing training and instructions through the means of manuals and requiring that security guards comply with instruction manuals prepared by it.

Conclusion

1. [255]

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