Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors. (No 5)

On 9 February 2010, Gengiz Capar (“the plaintiff”) was carrying out duties as a security guard at the Lidcombe Power Centre located at 92 Parramatta Road, Lidcombe (“the premises”). An alarm sounded and upon making enquiries, the plaintiff observed that a trolley had smashed through the doors of one of the shops located in the premises (“the February incident”). He called his supervisor, who told him to call the police. He did so, and from the plaintiff’s point of view, nothing further came of the February incident.

On the evening of 17 March 2010, the plaintiff was again on duty at the premises, performing a shift that commenced at 10:00pm and ended at 6:00am the following day. Whilst he was in the security control room (“the control room”) having a meal, he looked at a CCTV monitor and saw a person (“the intruder”) outside the premises. The intruder then ran towards one end of the premises, before disappearing out of the range of the nearest CCTV camera.

The plaintiff decided to leave the control room to investigate the intruder’s presence. He made his way to level one of the premises. Having reached that level, he waited for a short time before the intruder appeared in front of him, in possession of an axe. The plaintiff then identified himself as a security guard, in response to which the intruder said to him:

The plaintiff immediately ran back to the control room and locked himself inside before calling the police. The police attended and the intruder was later apprehended. I will refer to the circumstances surrounding the intruder’s presence on the premises as “the subject incident”.

It is the plaintiff’s case that the subject incident occurred as a consequence of the negligence of the three defendants. He asserts that as a result, he has suffered chronic Post Traumatic Stress Disorder and associated Depression. He also asserts that he continues to suffer ongoing psychological sequelae, and that he has been rendered permanently unfit for any form of employment. He does not allege that he suffered any physical injury. Each of the defendants has denied liability and a number of cross-claims have been filed.

As previously noted, the plaintiff was, at the time of the subject incident, working as a security guard at the premises. He has sued three defendants.

The first defendant, SPG Investments Pty Limited trading as Lidcombe Power Centre (“SPG”) was the owner of the premises at the time of the subject incident. SPG has filed cross-claims against Business Protection Group Pty Limited (“BPG”), the Worker’s Compensation Nominal Insurer (“the Nominal Insurer”) and R W O’Brien and Associates Pty Limited (“ROB”).

BPG, the second defendant, provided security services for SPG at the premises. BPG has filed cross-claims against SPG and the Nominal Insurer.

Dynamite Security Protection Services Pty Limited (“Dynamite”) was the plaintiff’s employer at the time of the subject incident. It is now deregistered and its interests are represented by the third defendant, the Nominal Insurer.

The plaintiff asserts that SPG was the owner and occupier, and had the care, control and management of, the premises. He asserts that in or about September 2008, SPG and BPG entered into a contract, pursuant to which BPG agreed to provide SPG with security and related services at the premises.

The plaintiff pleads that SPG owed him a duty of care on several bases. In particular, he asserts that:

As against BPG, the plaintiff asserts that:

As against the Nominal Insurer, the plaintiff asserts that:

SPG admits ownership of the premises but does not admit that it had responsibility for their care, control and management. SPG asserts that ROB was responsible for such care, control and management pursuant to an agreement under which ROB acted as SPG’s Asset Manager, and that as a consequence, ROB had a duty to take reasonable care in performing that function.

SPG concedes that it owed a duty of care to the plaintiff arising from the relationship of occupier and entrant. However, it does not accept that the scope of its duty was as wide as the plaintiff asserts. SPG asserts (inter alia) that it discharged any duty of care that it owed the plaintiff by engaging a competent contractor, namely BPG, to provide security services at the premises. In that respect, SPG accepts that it entered into an agreement with BPG for the provision of those services.

SPG also relies, by way of defence, upon various provisions of the Civil Liability Act 2002 (NSW) (“the CLA”).

BPG accepts that it undertook to provide security services at the premises, for which it was remunerated by SPG. However, it does not accept that it owed the plaintiff any duty of care, however that duty might be characterised. BPG further asserts that if, contrary to that position, it is found that it did owe a duty of care to the plaintiff, it discharged that duty, by delegation, through its engagement of Dynamite.

BPG also relies upon various provisions of the CLA in defence of the plaintiff’s claim.

The Nominal Insurer asserts that Dynamite did not breach any duty of care it may have owed the plaintiff, because even though such a duty may have been non-delegable, it did not render Dynamite strictly liable for injury to the plaintiff in the absence of a breach of duty by SPG or BPG.

Further, the Nominal Insurer asserts that the plaintiff was provided with a system of work which was designed to prevent the very harm that came to him, that it taught the plaintiff that system, and that it ensured that the plaintiff understood it. The Nominal Insurer asserts that in breach of that system of work, the plaintiff confronted an unauthorised intruder, identified himself, and directly exposed himself to the risk of injury that actually occurred. In the alternative, the Nominal Insurer asserts that if a conclusion is reached that Dynamite’s duty to the plaintiff was breached, BPG had effective control of the plaintiff at all relevant times, and that any liability on the part of Dynamite should be reduced accordingly.

No claim is brought against ROB by the plaintiff, BPG or the Nominal Insurer. ROB is joined a party to the proceedings by way of a cross-claim brought by SPG. ROB admits that it received instructions from SPG to provide asset management services, but denies any breach of duty. In view of the conclusions I have reached regarding the position of SPG, it is not necessary for me to further consider ROB’s position.

A document entitled “Services Agreement" [1] (“the agreement”) between BPG and SPG forms part of the evidence before me. SPG’s address is nominated in the agreement as being care of ROB. The agreement relates to the provision of security services at the premises. The second page of the agreement includes the words “Proposal July 2009”.2 BPG is referred to as the “provider”, and SPG as the “customer”. Clause 7 of the agreement provides that BPG would supply “security services” to SPG, for which SPG was required to pay BPG specific rates of remuneration. The agreement is expressed to commence on 1 July 2009, [2] and to conclude on 30 June 2012. [3] It therefore covers the date of the subject incident.

The copy of the agreement which is in evidence before me is not signed. There is no other evidence which establishes that the agreement, or any other document in a similar form, was ever executed between SPG and BPG.

There is, however, other evidence which indicates that BPG provided security services at the premises pursuant to some form of agreement with SPG. That evidence includes a document entitled “Work Order 5068 Approval for Works” [4] (“the Work Order”) which is dated 3 December 2007 and addressed to BPG. It is under the hand of Gary Hodge with a contact email address at ROB. The document is marked for the attention of Gerald James [5] and is in the following terms:

The evidence before me also includes a Tax Invoice (“the Tax Invoice”) dated 1 April 2010 issued by BPG to SPG. [6] Under the heading “description” the following appears in the Tax Invoice:

The Work Order is therefore expressly referred to in the Tax Invoice. The period to which the Tax Invoice relates encompasses the date of the subject incident.

On the basis of this evidence, I am satisfied that at the time of the subject incident there was an agreement in place between SPG and BPG, pursuant to which BPG undertook to, and did, provide SPG with security services at the premises. Beyond that, I am unable to make any findings as to any remaining terms and conditions of that agreement.

I am also satisfied that BPG engaged Dynamite to provide the security services at the premises. [7]

The premises were located on the southern side of Parramatta Road, Lidcombe and extended over two levels. [8] At the ground level there were entry gates which provided access during business hours, [9] along with a concourse or plaza area at the street front. Within the premises, there were escalators located between two restaurants. [10] The control room was located on the ground level near the escalators [11] . There were a number of shops and showrooms on the ground level. There were also two separate sets of fire stairs leading to level one, one of which was located towards the eastern end of the premises, and the other towards the western end.

Over each of the fire stairs was a roller shutter. [12] Each roller shutter was positioned in a way which left a gap near the fire stairs, through which it was possible to gain entry to the premises even when they were otherwise closed and secured, and even when each shutter was fully pulled down, and in place. [13]

On level one of the premises there were other shops and showrooms. In particular, there were two adjoining shops at the far eastern end of level one which were occupied by a business known as “Spotlight”. [14] Along the side of level one facing Parramatta Road there was a pedestrian concourse [15] which could be accessed via the fire stairs, as well as by the escalators.

Both levels of the premises could also be accessed from a car park located on each of those levels. Access was gained via automatic sliding doors [16] which malfunctioned intermittently. [17]

In the first of his evidentiary statements [18] the plaintiff set out his employment history in the security industry in the period leading up to the subject incident: [19]

Later in this judgment [20] when dealing with damages, I have addressed the circumstances surrounding the death of the plaintiff’s mother which led to the depression to which the plaintiff referred in his statement. At this point, it is sufficient to note that the plaintiff agreed in cross-examination that by 2000 he had sufficiently recovered from the circumstances stemming from his mother’s death to be able to undertake training with a view to obtaining his security licence. He explained [21] that he wanted to “better” himself and obtain employment, and felt that he was able to do so. He said that even though he was suffering from flashbacks “here and there”, he had “worked through everything”. He undertook a security course, at the completion of which he was awarded certificates 1A, 1B and 1C which entitled him to perform guard, patrol and crowd control duties. [22]

The plaintiff commenced working with Dynamite in 2009, having found the position by looking in the newspaper. [23] At his initial interview, his duties were explained as including “locking up gates, checking things and just general duties (and) patrolling”. [24] He was told [25] that he would be required to undergo a period of training and was introduced to a number of people, including Bill Morris [26] who was the Operations Manager for BPG. Gerald James was Managing Director of BPG. [27]

The plaintiff explained that his initial interview with Mr Morris took between 10 and 15 minutes, following which he participated in a number of training modules [28] which involved familiarising himself with the premises and learning things such as the location of the control room, the positioning of the security cameras, the operation of the CCTV console, and the procedure for locking the premises. [29] He also recalled being asked to complete a number of forms and sign them. [30]

The plaintiff’s evidence was that he understood Mr Morris to be an employee of “Dynamite and BPG”. He said that he (the plaintiff) wore a uniform bearing the BPG logo. [31]

I am satisfied that Mr Morris, in his capacity as the Operations Manager for BPG, was at least partly responsible for the plaintiff’s training. Quite apart from the evidence of the plaintiff to which I have referred, the name of Mr Morris appears (along with that of the plaintiff) on one of the manuals to which I have referred below. [32]

There is no dispute that the plaintiff was employed by Dynamite at the time of the subject incident. However, there is evidence that BPG had some input into devising the plaintiff’s system of work. On 16 February 2009 Mr James forwarded an email to Mr Abdul Morris of Dynamite (not to be confused with Mr Morris, the Operations Manager of SPG) [33] in (inter alia) the following terms:

Later the same day, Mr Morris replied in the following terms:

In devising these aspects of the plaintiff’s system of work, BPG exercised some control over the plaintiff. That control included directing the plaintiff as to certain aspects of how he was to carry out his duties, and the procedure he was to follow if any incident arose.

There were a number of manuals issued in relation to the premises which incorporated (inter alia) instructions to be followed by security personnel in relation to both the day to day operation of the premises, as well as in relation to specific incidents. Those manuals, and the plaintiff’s understanding of some of the instructions contained in them, are significant.

One of the manuals to which the plaintiff had access was entitled “Lidcombe Power Centre, 92 Parramatta Road, Lidcombe (NSW) Site Operations Manual” (“the Operations Manual”). Whilst there are two copies of the Operations Manual in evidence, [34] the contact list on one of them bears the name of the plaintiff as well as that of Bill Morris. [35] I infer in those circumstances that it was this version to which the plaintiff was given access when he commenced employment. I am fortified in that view by the plaintiff’s evidence [36] that the contact list in that document bears the name of a number of other persons who were his fellow workers. That is usefully contrasted with another version of the Operations Manual which is in evidence [37] , the names on which do not include that of the plaintiff. [38] It is evident from its title page [39] that the Operations Manual was issued by BPG.

Clause 35 of the Operations Manual was in the following terms:

The plaintiff generally agreed [40] that this was one of the provisions of the Operations Manual with which he had familiarised himself, and said that he had “probably” read it and understood it. [41] On the basis of that evidence, as well as that which follows, I am satisfied that he was familiar with clause 35, that he had read it, and that he understood it.

The plaintiff was cross-examined about the contents of clause 35: [42]

Bearing in mind the finding that I have reached regarding the plaintiff’s familiarity with the terms of this provision, [43] and having regard to his evidence, I am satisfied that the plaintiff clearly understood that in the event that he saw somebody on the premises who was armed, or who was in possession of something that could be used to cause harm, he was to call the police and do nothing else until they arrived. I am also satisfied he understood that part of the underlying rationale for the instructions contained in clause 35 was to ensure his own personal safety, in circumstances where he was not armed, and was not trained in how to deal with anybody who might be armed.

Clause 41 of the Operations Manual was in the following terms: [44]

The plaintiff agreed, and I am satisfied, that he was familiar with the instructions contained in this provision. [45] He was cross-examined about those instructions as follows: [46]

Based on this evidence, the plaintiff clearly understood that it was dangerous to go to any part of the premises where an intruder might be present. He also understood the related necessity to keep a safe distance away from any intruder. He also understood the express instruction in clause 41 that in the event that an intruder came on to the premises he was to “back off”, retreat to a safe distance, call the police and wait for them to arrive. I am further satisfied, given his evidence, that the plaintiff was aware that these instructions were put in place with a view to ensuring his safety, and that he knew that acting contrary to such instructions would have the potential to jeopardise that safety.

Another document to which the plaintiff had access was the “Work Health and Safety Management Plan” (“the Management Plan”) which was also issued by BPG. [47] The plaintiff agreed that this was “probably” a document which was at the premises, and with which had familiarised himself. [48] I am satisfied that the plaintiff was familiar with its contents.

The plaintiff agreed that the work that he performed as a security officer at the premises included doing patrols. [49] Under the heading “Mobile Patrols – Venue Protection – Alert Installation”, the Management Plan identified a number of hazards which could possibly arise at the premises. One such hazard, referred to in clause 10, was that of assault. In that context, a number of instructions relevant to dealing with intruders and offenders were set out in the following terms: [50]

A separate section of the Management Plan was headed “Venue Protection”. It identified other possible hazards, and contained instructions as to the procedures to be implemented in relation to them with a view to maintaining safety. Clause 10 in that section was identical to the terms of clause 10 set out at [52] above.

The plaintiff was cross-examined about the instructions contained in these parts of the Management Plan: [51]

I am satisfied that the plaintiff clearly understood that at all times, but particularly in the event of an intruder coming on to the premises:

Importantly, he understood all of this to be the case in circumstances where it was obvious that an intruder could be a dangerous criminal.

A further document issued by BPG was entitled “Standing Operating Procedures” (“the Operating Procedures”). [52] The plaintiff agreed that this was “probably” a document which had been made available to him and with which he had familiarised himself, but said that he could not “recall everything”. [53] I am satisfied that the document had been made available to him, and that he was familiar with its contents.

Clause S11 of the Operating Procedures was in the following terms: [54]

In respect of this instruction the plaintiff was asked: [55]

On the evidence before me, the plaintiff was the only security guard on duty at the time of the subject incident. As I have noted [56] it had been explained to him when he commenced working at the premises that his responsibilities included locking them up. Discharging that particular responsibility obviously necessitated his absence from the control room.

If one regards the control room as the plaintiff’s “post” for the purposes of clause S11, it would have been difficult, if not impossible, for any person in his position to comply with the instructions contained 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. There is, therefore, a degree of incongruity between the instruction contained in clause S11, and the reality of the duties and responsibilities of the plaintiff’s position. That said, for the reasons I have already set out, the plaintiff knew that pursuing intruders was a matter for the police and not the security staff, and that he should not leave the control room for the purpose of doing so.

Under the heading “Robbery Procedure”, the Operating Procedures contained the following instructions: [57]

These instructions were drawn to the plaintiff’s attention in cross-examination: [58]

The plaintiff’s admitted understanding of that particular instruction was unequivocal. He knew that if he became aware of the presence of an intruder on the premises, he had a responsibility to call the police. He specifically understood that under no circumstances was he to attempt to intervene by interfering with, or approaching, the intruder. He knew that attempting such intervention was not part of his job.

Under the heading “Offenders on Premises” the Operating Procedures instructed as follows: [59]

The plaintiff agreed [60] that this was another provision with which he had familiarised himself, and I am satisfied that this is so. He was cross-examined about it as follows: [61]

Contrary to the plaintiff’s assertions, he did not have to leave his post to investigate anything. He was aware of the presence of the intruder because he saw him on the CCTV footage from within the safe confines of the control room. He also knew, as a result of his familiarity with the instructions contained in the various manuals to which I have referred, that if he became aware of an intruder on the premises he was to keep clear, call the police, and wait for them to arrive. All of that could have been done from within the control room.

Under the heading “Monitored Alarm Client” [62] the Operating Procedures contained the following further instructions:

The plaintiff was cross-examined further: [63]

In summary, and in light of the evidence I have set out, I am satisfied that at the time of the subject incident the plaintiff knew and understood (inter alia) that:

On 9 February 2010 the plaintiff was on duty at the premises when he heard an alarm sound. He initially thought that it might be a false alarm but when it continued to sound he decided to investigate it. When he did so, he found that a trolley had smashed through the doors of the Spotlight store on level one of the premises. He went inside the store but could not find anyone there. He then called his supervisor who told him to call the police and report the matter, which he did. [64]

Along with his supervisor, the plaintiff then reviewed the CCTV footage which had been taken at the time of the alarm sounding. [65] He initially said in his evidence that the footage showed “two persons entering the complex over a gap above a roller shutter”. [66] When cross-examined [67] he conceded that the footage did not show anybody entering the premises in that way, but simply showed two people moving in and about the area where a roller shutter was located. That said, the overwhelming inference is that two people gained entry to the premises at the time of the February incident through a gap near the roller shutter over one of the sets of fire stairs, although I am not able to say which set. I am satisfied that neither of the persons who gained entry on that occasion was the intruder who gained access to the premises at the time of the subject incident. [68]

At 8:21am on 10 February 2010 a person described as “Janet” forwarded an email to a number of persons regarding the February incident. Her email originated from what was described as “045 Lidcombe Manager. [69] At the foot of her email were the words:

Her email was in the following terms: [70]

Janet has not been otherwise identified. However, given what appears at the foot of her email, and given her reference to “our store” being the subject of a break-in, I infer that she worked for Spotlight at its store which was located at the premises.

Included in those persons to whom Janet’s email was sent was Georgia Hall. Ms Hall responded at 8:29am: [71]

The email from Ms Hall included the following electronic signature:

I infer from those circumstances that Ms Hall was also an employee of Spotlight.

At 9:47am Janet sent a further email to Ms Hall [72] in the following terms:

At 11:58am on the same day Richard Stanwix of BPG forwarded an email to “Marc Thompson (Property)” and Gerald James headed “Lidcombe break-in” [73] which was in the following terms:

There is an issue as to whether SPG became aware of the February incident at or around the time that it occurred, and thus became aware of the gap near the roller shutter through which the intruders gained access on that occasion. Senior Counsel for SPG submitted that the communications set out above centred upon the fact that the Spotlight premises has been broken into, and that there was no evidence as to the nature of any relationship between Spotlight and SPG, and thus no evidence that SPG was made aware of the gap.

Senior counsel for the plaintiff submitted that I would be satisfied of the relevant connection between SPG and Spotlight, and satisfied that SPG had become aware of the February incident, and aware of the gap through which entry was gained on that occasion.

Although there is evidence that some employees of SPG became aware of the gap at or around the time of the subject incident, [74] there is no direct evidence that any person within SPG was informed of the February incident around the time that it occurred. More specifically, there is no direct evidence that any person within SPG was informed of the existence of the gap over the fire stairs at each end of the ground level of the premises at the time of the February incident. In that regard, it is significant that out of all of the correspondence which I have set out above, the only reference to entry having been gained through the gap at the time of the February incident was contained in the email of Mr Stanwix. [75] Mr Stanwix was an employee of BPG, not SPG. [76] His email was sent to two persons. The first, Mr James, was the Managing Director of BPG. The second, Mr Thompson, appears to have been an employee of ROB. As far as Janet is concerned, she appears to have been employed by Spotlight, as was Ms Hall. Spotlight obviously had a store at the premises, but there is no evidence of any other association between Spotlight and SPG.

The effect of the submission of senior counsel for the plaintiff was that I should infer, from all of the correspondence set out above, that SPG knew of the February incident, and thus knew of the gap through which entry to the premises was gained on that occasion. An inference is a conclusion of fact which is rationally drawn from a combination of other facts. Even if it were established that all, or even some, of those persons who sent and received emails were employees of SPG (and there is no evidence that this is so) it would be an error to infer from that fact that SPG had knowledge of the February incident, and thus knowledge of the gap. [77] In the circumstances I am not satisfied that knowledge of the February incident, or knowledge of the gap, came to the attention of SPG at or around the time of the February incident, or indeed at any time between the February incident and the subject incident.

The position of BPG is different. Senior counsel for BPG did not suggest that BPG was not aware of the gap. Indeed, consistent with the evidence, senior counsel’s submissions tended to accept that BPG was so aware. [78] I am satisfied that this is the case.

In the first of his evidentiary statements [79] the plaintiff described the subject incident in the following terms:

The account of the subject incident set out in the plaintiff’s evidentiary statement is not the only account that he has provided. He also gave:

There were some discrepancies between the various accounts that the plaintiff gave (particularly to doctors) about which he was cross-examined at some length. However, those discrepancies are, in my view, largely immaterial. There is no real dispute that the subject incident occurred, generally speaking, as the plaintiff has described it in his evidentiary statement.

Three excerpts of security footage which were taken at the time of the subject incident were tendered in evidence, along with still images taken from some of that footage. [87] The first excerpt was taken from camera 16 which was located at the front of the premises near Parramatta Road. That footage shows the intruder entering the front concourse of the premises from the eastern end. He is then seen to walk up a set of steps at that end and walk in a westerly direction away from the camera, and towards the fire stairs located at the western end of the ground level. The plaintiff confirmed that this was the footage which alerted him to the intruder’s presence, and which led him to believe that the intruder had “gone over the roller door”. [88] The plaintiff said that upon seeing the intruder on that footage, he immediately made his way to level one by coming out of the control room and walking up the escalators. [89] He said that he went up to level one to “have a look”. [90]

The plaintiff gave evidence that he believed from what he had seen on the CCTV footage that the intruder had entered the premises through the gap near the roller door over the fire stairs located at the western end of the ground level of the premises, [91] and had gone from there to level one. Given the direction in which the intruder headed (as depicted in the footage taken from camera 16) I am satisfied that the intruder gained entry in the manner the plaintiff described, and then made his way to level one of the premises.

The second excerpt of footage was taken from a camera referred to as “east plaza, level one” [92] which was located at the eastern end of level one of the premises, near the Spotlight store. It shows the plaintiff standing on the concourse [93] where he is seen to remain for a short time before running towards the escalators. At about the same time, the intruder appears in the foreground of the footage, near the seats located outside the Spotlight store on the concourse. The intruder then disappears from view.

The plaintiff agreed that this footage showed him standing near the escalator on level one for approximately 41 seconds [94] before running away. He said that when he heard footsteps coming up the stairs he became increasingly frightened [95] and had in mind that the intruder could be violent. [96] He said that when he was confronted by the intruder, he ran back down the escalator to the control room, locked himself inside and telephoned the police. [97]

The third excerpt of footage was also taken from camera 16 on the ground level. [98] It shows the intruder exiting the premises by running in an easterly direction along the concourse on the ground level before disappearing from view.

Based on this evidence, I am satisfied, that:

Bearing in mind the plaintiff’s knowledge and understanding of the instructions contained in the various manuals, [99] he was cross-examined about the circumstances which led him to pursue the intruder: [100]

The plaintiff’s evidence was that immediately upon becoming aware of the presence of the intruder on the premises, he left the control room and went to level one to “have a look”. The reality is that the plaintiff went to level one to ascertain where the intruder had gone, and what he was doing. He did so in circumstances where he must have known that it was highly likely, if not inevitable, that the two of them would come, as it were, face to face. The plaintiff’s decision to go to level one was directly contrary to the instructions that he had been given in the various manuals, namely that in such a situation he was not to pursue the intruder, but was to (inter alia) “back off”, remain in the secure confines of the control room, and call the police.

Having reached level one, the plaintiff remained in the vicinity of the escalators for a period of approximately 41 seconds, effectively waiting for the intruder to appear. The intruder did appear, and threatened the plaintiff, causing him to flee to the control room. Once again, the plaintiff’s actions in these respects were, to his knowledge, completely at odds with both the instructions contained in the various manuals, and his understanding of proper safety procedures.

The plaintiff was cross-examined further: [101]

He was then asked: [102]

He was then asked. [103]

The cross-examination continued: [104]

It is clear from this evidence that when he decided to leave the control room and go to level one of the premises, the plaintiff was obviously aware that he was pursuing an intruder who was carrying a large bag which might contain weapons or other implements which could be used to break and enter the premises. In particular, it was obvious to the plaintiff at the time that the intruder could be carrying something like an axe or a knife. The plaintiff was also aware that by pulling a cap down over his face, the intruder was trying to conceal his identity.

In other cross-examination [105] the plaintiff agreed that the intruder was “tall”, that his face looked “scary”, and that he thought he “might be a junkie”. He also agreed that all of these factors gave him an additional warning that the intruder could do something very unpredictable. Put simply, and as the plaintiff expressly conceded, he was aware that the intruder was “up to no good” and could be a dangerous criminal. The plaintiff was also aware that in the event that he came, in effect, face to face with such a dangerous criminal, in circumstances where he (the plaintiff) was not of a large build, was not armed, and had no means whatsoever of defending himself, he was at risk of being injured or wounded in some way.

It must have been obvious to the plaintiff from the moment he decided to leave the control room and go the very area where he thought the intruder would be, that it was likely that he would be confronted by the intruder. It follows that he must have known that by acting as he did, he would be placing himself in a position of great danger, and one of significant, if not total, vulnerability. The plaintiff must also have known that in acting as he did, he was ignoring the instructions set out in the various manuals about which he was cross-examined.

The purpose for which the plaintiff remained on level one for approximately 41 seconds, waiting for the intruder to emerge, is not satisfactorily explained on the evidence. From the point of view of the plaintiff’s safety it was both dangerous and futile. Waiting unarmed, for an intruder who was thought to be armed, was an inherently dangerous thing to do. It served absolutely no purpose. The plaintiff’s conduct in that regard increased his already significant vulnerability, something that he knew to be the case. That much is clear from the following passage of cross-examination: [106]

The plaintiff’s evidence that he waited for a period of time on level one to “make sure” that the intruder had in fact gone to that area of the premises is entirely illogical. Going to level one in the first place to “have a look” served no purpose, nor did remaining there for the intruder to appear. Acting in that way was entirely antithetical to ensuring the plaintiff’s own safety. I do not accept the plaintiff’s evidence that he “had” to go up to level one for the purposes of making sure of anything. Going up to level one unarmed, effectively in pursuit of an unpredictable intruder who was armed with some kind of breaking implement, put the plaintiff’s safety at extreme risk. The plaintiff clearly knew that to be the case at the time.

Having waited near the top of the escalators on level one for what was, in all of the circumstances, a significant period, the plaintiff must have known that it was likely that the intruder would eventually see him. For reasons which remain entirely unexplained, the plaintiff then acted in a way which ensured that what was initially a likelihood became a certainty: [107]

The situation in which the plaintiff found himself at the top of the escalators is conveniently summarised in the following passage of cross-examination: [108]

In acting as he did, the plaintiff completely abandoned the instructions set out in the various manuals of which he was aware and, in doing so, put himself in a position of extreme danger. The plaintiff knew what to do if he became aware of the presence of an intruder on the premises. He knew that pursuing an intruder was not a matter for him and that he should not, under any circumstances, even attempt to approach such a person. The plaintiff, by acting as he did, placed himself in a position of extreme vulnerability, and extreme danger, for which he was solely responsible.

On 17 March 2010 at 8:10am Mr Stanwix sent an email to a number of people (including Georgia Hall) in the following terms: [109]

It should be noted that the references to there having been two offenders, and to the guard following the offenders at a safe distance, are not in accordance with the evidence before me.

On 17 March 2010 Alison Hall replied to the email of Mr Stanwix in the following terms: [110]

It is appropriate to note at this point that in the course of final submissions, senior counsel for the plaintiff relied generally upon the contents of these emails, and specifically upon the compliments given to the plaintiff by Mr Stanwix and Ms Hall, as evidence supporting a conclusion that the plaintiff had not breached any security instructions, procedures or protocols at all, or that if he had, any such breach was inconsequential. I accept that this correspondence does not contain any suggestion that the plaintiff breached any instruction, procedure or protocol. However, that is not to the point. For the reasons I have given, the evidence overwhelmingly supports a conclusion that the plaintiff knowingly breached his instructions in a number of material respects.

The plaintiff relied upon the expert opinion of Terrence Flanders, a security expert who prepared a report dated 31 July 2013. [111] Under the heading “Report Findings” [112] Mr Flanders stated (inter alia) the following:

Mr Flanders then expressed the following conclusions: [113]

One of the fundamental assumptions upon which Mr Flanders acted in forming his opinions was set out at paragraph [47] of his report in the following terms: [114]

In his oral evidence, Mr Flanders confirmed [115] that the plaintiff had informed him that he had not been shown any security policies or procedures when he commenced employment at the premises. Mr Flanders was in no doubt that this was what he was told by the plaintiff. [116] He agreed that these instructions (as well as others) formed the basis of the conclusions he had expressed in his report. [117]

It is clear from his evidence that in forming his opinions, Mr Flanders accepted the information provided to him by the plaintiff as to his (i.e. the plaintiff’s) lack of training and instruction [118] in security policies and procedures:

Mr Flanders’ evidence also included the following: [119]

Clearly, the assumption set out at paragraph [47] of his report, upon which Mr Flanders acted in forming his opinions, was incorrect. As I have previously outlined at length, the evidence establishes that the plaintiff knew and understood the various instructions contained in the manuals. Any suggestion that the plaintiff was not instructed as to (inter alia) what to do when he became aware of the presence of an intruder is completely at odds with the evidence. It follows that in forming his opinions, Mr Flanders proceeded on a fundamentally incorrect assumption. [120]

In these circumstances, the following evidence of Mr Flanders is of some significance: [121]

Other aspects of Mr Flanders’ report, and his evidence, are also worthy of comment. As I have noted above, [122] one of the failures on the part of SPG which Mr Flanders identified was a failure to comply with the Occupational Health and Safety Act 2000 (NSW) by, in particular, “not applying a safe system of work based on AS/NZS 4801:2001 Occupational Health & Management Systems”. When cross-examined as to this issue, Mr Flanders accepted that he was entirely unaware of the particular part of that provision to which he was referring when expressing that view. [123]

Further, Mr Flanders formed his opinions having regard to (inter alia) three inspections of the premises. He conceded that each of those inspections was “cursory”. [124] Not one of them included an inspection of the control room. [125] Mr Flanders was cross-examined about these matters as follows: [126]

Quite apart from these obvious shortcomings, and having observed him carefully as he gave evidence, I found Mr Flanders to be a less than satisfactory witness. 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. My conclusion in that regard arose, in part, from the fact that Mr Flanders was often argumentative when giving evidence, and on occasions displayed an obvious reluctance, sometimes to the point of refusal, to concede the most obvious of propositions that were put to him, seemingly out of concern that to do so might not assist the plaintiff. I formed the view that in that sense, Mr Flanders had a tendency to tailor at least some of his answers so as to express them in terms which he thought would be most conducive to the plaintiff’s best interests.

Such approach was typified by Mr Flanders’ answers when cross-examined in relation to the provisions of clause 41 of the Operations Manual: [127]

Having given that evidence Mr Flanders was then asked: [128]

Those passages of cross-examination were reflective of what I regard as the generally unsatisfactory nature of Mr Flanders’ evidence.

For these reasons, I place no weight upon his report, his oral evidence, or his opinions.

At the conclusion of the evidence, the submissions made on behalf of the plaintiff, SPG and BPG addressed (inter alia) the issue of the nature and scope of any duty of care owed by SPG and BPG to the plaintiff. However, as I have previously noted, both SPG and BPG relied upon a number of specific provisions in the CLA which, it was submitted, operated to defeat the plaintiff’s claim. In particular, in circumstances where the plaintiff’s case is that he suffered a psychiatric as opposed to a physical injury, both SPG and BPG relied upon s 32 of the CLA, which does not apply to the Nominal Insurer by virtue of s 3B(1)(f).

In a case where a plaintiff alleges mental harm, s 32 of the CLA defines or controls what would otherwise be a duty of care arising at common law. [129] In Optus Administration Pty Limited v Wright [130] (“Optus”) Basten JA observed that s 32 requires that a particular and separate inquiry be held into the existence of a duty of care with respect to mental harm. In that case, the trial judge had engaged in a two-stage approach, by firstly considering whether a general duty of care was owed to the respondent, and then considering the effect of s 32. Basten JA observed [131] that although such an approach was not necessarily erroneous, it had the potential to miscarry and that even though the appellant in that case owed a general duty of care to the respondent, such a conclusion was of limited relevance given the provisions of s 32.

It is therefore appropriate to firstly address the effect of s 32 of the CLA on the plaintiff’s cases against SPG and BPG.

Section 32 of the CLA is in the following terms:

Senior counsel for the plaintiff submitted that s 32 did not defeat the plaintiff’s claims against SPG and BPG. He submitted that both SPG and BPG ought to have foreseen that in all of the circumstances, a person in the position of the plaintiff, as a security guard, might suffer a recognised psychiatric illness if reasonable care were not taken to ensure that intruders could not come onto the premises after hours.

Senior counsel further submitted that the presence of an intruder on the premises was clearly foreseeable, as was the fact that a security guard in the position of the plaintiff would, as part of his duties, investigate such an occurrence. In support of that submission senior counsel referred me to the decision in Wicks [132] as well as observations set out in Annotated Civil Liability Act 2002 (NSW) (3rd Edition) (“Villa”). [133]

Senior counsel for SPG submitted that this was not a case in which SPG ought to have foreseen that the plaintiff would leave the safety of the control room unarmed, place himself in danger by (inter alia) following an intruder who he knew was armed, take up a position in close proximity to that intruder, and then draw attention to his (i.e. the plaintiff’s) immediate presence by identifying himself as a security guard.

It was submitted that in all of these circumstances, s 32 operated to defeat the plaintiff’s claim.

Senior counsel for BPG adopted these submissions.

One effect of s 32 of the CLA is that a duty of care is not owed by a defendant to a plaintiff unless a particular condition is satisfied, namely that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. Whilst s 32(2) identifies four circumstances encompassed by the phrase “the circumstances of the case”, they are not exhaustive.

Another effect of s 32 is that it imposes a qualification on the test of reasonable foreseeability by specifying three elements that a defendant ought to have foreseen, namely:

In Optus, Basten JA observed: [135]

In the present case, the question to be asked for the purposes of s 32 is whether it was reasonably foreseeable that an intruder who came on to the premises might threaten the plaintiff in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude. That question is to be answered by reference to “the circumstances of the case”, including those in s 32(2) which are individual considerations that may bear upon the question of whether SPG and BPG ought to have foreseen that the plaintiff might suffer a recognised psychiatric illness if reasonable care were not taken. [136]

In terms of the individual circumstances set out in s 32(2), the plaintiff was clearly subjected to a sudden shock, [137] as a consequence of which he asserts that he suffered mental harm. There was no warning that an intruder would come on to the premises. The plaintiff did not witness any person being killed, injured or put in peril, although the plaintiff himself was obviously in peril. [138] There was some pre-existing relationship between the plaintiff and each of SPG and BPG. [139] SPG owned the premises on which the plaintiff was present. BPG arranged security services for the premises, and was at least partly responsible for devising aspects of the plaintiff’s system of work and training.

However, as I have noted, s 32(2) does not purport to constitute an exhaustive list of relevant circumstances. The circumstances of the present case necessarily encompass the conduct of the plaintiff as I have described it. The plaintiff’s conduct commenced with him being alerted by CCTV footage to the sudden presence of the intruder entering the premises. The plaintiff made that observation from the secure confines of the control room. He did so in circumstances where it was obvious that the intruder was armed, and that he was intending to commit some criminal act.

The fact of becoming alerted to the presence of the intruder came against a background of the plaintiff having been given clear and unequivocal instructions about what he was to do in such a situation. Fundamentally, the plaintiff knew that it was no part of his role to pursue an intruder. He also knew that he was not to intervene when such a situation presented itself, and was to call the police and wait for their arrival.

The plaintiff acted completely contrary to the instructions that he had been given. He left the safety of the control room unarmed, and went to level one of the premises, the precise area where he knew that the intruder was likely to be present. He had no cogent reason for doing so. Having reached level one, he placed himself in a position of acute vulnerability by effectively waiting by the escalator for the intruder to emerge. Having waited for a period of approximately 41 seconds, the plaintiff then inexplicably drew the attention of the intruder to the fact that he was a security guard, prompting the intruder to threaten to kill him.

In my view, taking into account all of the circumstances, it was not reasonably foreseeable to either SPG or BPG that the intruder might threaten the plaintiff in the manner in which he did. I have reached this conclusion for a number of reasons.

Firstly, the presence of the intruder was sudden and unexpected. There was no forewarning that the intruder would arrive at the premises on this particular occasion as he did.

Secondly, the plaintiff was a trained security guard. He had been instructed that pursuing offenders was not a matter for him, but was a matter for the police. Those instructions were repeated, and were conveyed in clear and unequivocal terms which, for the reasons I have already set out, I am satisfied that the plaintiff knew and understood.

Thirdly, the plaintiff knew that in acting as he did, he was acting with complete disregard for his own safety.

Fourthly, having left the control room contrary to the instructions given to him, the plaintiff then compounded the gravity of what he had done by waiting for the intruder, only to then expressly draw the intruder’s attention to his presence, in circumstances where he knew that the intruder was armed and was in close proximity.

Fifthly, and leaving aside the fact that the plaintiff acted in a way which was at odds with the instructions which had been given to him, his conduct completely defied common sense, and had no legitimate purpose.

In my view, SPG and BPG were each entitled to assume 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. In particular, SPG and BPG were each entitled to assume that if alerted to the presence of an intruder from within the control room, the plaintiff would do as he had been instructed.

SPG and BPG were also each entitled to assume that in circumstances where the plaintiff knew that the intruder was armed and was likely intending upon committing a criminal act, he would not leave the control room unarmed and follow the intruder. They were also entitled to assume that having done so, the plaintiff would not place himself in a position of extreme peril by waiting in an about the area where he suspected the intruder to be, only to then expressly draw the intruder’s attention to his presence.

It follows that in all of the circumstances of the case, it was not reasonably foreseeable that the intruder might threaten the plaintiff as he did. In these circumstances, having regard to the operation of s 32 of the CLA, neither SPG nor BPG owed the plaintiff a duty of care. The plaintiff’s case against each of SPG and BPG fails on this basis. However, notwithstanding that conclusion, it is necessary for me to address a series of other issues in respect of which the parties made submissions. The first of those issues, s 32 of the CLA aside, concerns the nature and scope of any common law duty of care owed by SPG and/or BPG to the plaintiff.

Senior counsel for the plaintiff submitted that SPG owed the plaintiff a duty of care in three respects.

Firstly, it was submitted that as the occupier of the premises, SPG had the responsibility for their care, control and management, and therefore owed a duty to exercise reasonable care for the safety of persons who were lawfully on such premises.

Secondly, given the purpose for which, and the circumstances in which, the plaintiff was on the premises, it was submitted that SPG, as the occupier of the premises, owed the plaintiff a more generalised duty of care in relation to any risk of injury to which the plaintiff might be exposed whilst on the premises.

Thirdly, it was submitted that following the February incident, SPG’s duty of care extended to the taking of reasonable care to protect a person in the position of the plaintiff from a risk of injury consequent upon the unlawful entry of persons onto the premises, after the premises had closed, by means of the gap near the fire stairs.

Senior counsel for the plaintiff submitted that as the occupier of the premises, SPG should have controlled access to them, particularly in circumstances where the commercial activities conducted on the premises were of a kind likely to attract the interest of wrongdoers. He submitted that on these bases, the duty of care owed to the plaintiff by SPG extended to a duty to provide the plaintiff with a safe place of work.

As against BPG, senior counsel for the plaintiff submitted that a duty of care arose in three ways.

Firstly, it was submitted that by reason of its engagement by SPG, BPG became an occupier of the premises and that accordingly it owed to the plaintiff, as a person lawfully present on the premises, a duty to exercise reasonable care for his safety.

Secondly, it was submitted that having engaged Dynamite to provide security services, SPG owed the plaintiff a duty of care which was analogous to that owed by an employer to an employee, which encompassed a duty to provide a safe place of work, a safe system of work, and safe plant and equipment. It was submitted that this was so, even if it were concluded that BPG had no direct dealings with the plaintiff, and had no physical presence on the premises.

Thirdly, it was submitted that upon the February incident occurring, BPG owed a duty of care to the plaintiff which, if it did not already do so, extended to a duty to take reasonable care to protect a person in the position of the plaintiff from a risk of injury following upon the unlawful entry of persons onto the premises, after the premises had closed, by means of the gap above the fire stairs.

Senior counsel for SPG did not dispute that as the occupier of the premises, SPG owed the plaintiff, as an entrant, a duty of care with respect of the safety of the premises in terms of their physical condition. However, it was submitted that the duty of care owed by SPG to the plaintiff did not extend beyond that. In support of that submission, senior counsel for SPG relied upon a number of factors including:

Senior counsel for SPG further submitted that generally speaking, an occupier of premises does not owe a duty of care in relation to the criminal conduct of a third party, and that the present case did not fall outside that general rule. It was submitted, in particular, that there were no features of the relationship between SPG and the plaintiff, nor anything arising from the other circumstances of the case, which imposed a duty of care on SPG to prevent injury to the plaintiff from the random, unpredictable and criminal behaviour of the intruder. In this regard, senior counsel pointed specifically to the fact that SPG and the plaintiff were not in a relationship of employer and employee and that, as a consequence, SPG did not have the capacity to control the plaintiff, or control his system of work.

It was submitted that all of these matters lead to the conclusion that any duty of care owed by SPG to the plaintiff was limited to the duty of care owed to an entrant to the premises.

Senior counsel for BPG submitted that BPG owed no duty of care to the plaintiff at all. Senior counsel submitted that on any view of the evidence, BPG’s role was limited to the provision of security services at the premises and that in such circumstances, BPG could not be regarded as an occupier. Senior counsel emphasised that BPG had no physical presence at the premises, and that its only role was that it had engaged Dynamite to provide security services. It was submitted that it was contrary to both reason and principle that an entity which had no physical presence at premises, and who did not own or lease such premises, could be held to be an occupier of the premises and thus owe an entrant a duty of care.

Senior counsel for BPG further submitted that even if there was a basis upon which to impose the duty of care of an occupier upon an entity in the position of BPG, there was no basis for doing so in this case having regard to the fact that BPG had been contracted for the sole purpose of providing security services. It was submitted that even if the contractual arrangements between SPG and BPG were construed as imposing the status of an occupier upon BPG, the duties of an occupier were delegable, and that any occupier’s duty which might have fallen upon BPG was plainly delegated to Dynamite.

It was further submitted that there was no evidence of any relevant relationship between BPG and the plaintiff, much less one which was capable of generating a duty on the part of BPG towards the plaintiff which was analogous to that of the duty owed by an employer to an employee. Senior counsel submitted that BPG did not employ the plaintiff, that it had no dealings with him, that it assumed no responsibility to or for him, and that it had no control over him.

At the time of the subject incident, SPG was the occupier of the premises and the plaintiff was a lawful entrant. SPG did not take issue with the proposition that it owed the plaintiff a duty, in accordance with ordinary principles of negligence, to take reasonable care to avoid a foreseeable risk of injury to him. [140] The real issue in the present case is whether any duty owed by SPG extended beyond that, so as to encompass:

That issue is to be determined by reference to a number of factors, one of which is the nature of any relationship between SPG and the plaintiff.

SPG and the plaintiff had no relationship other than that of occupier and entrant. SPG did not employ the plaintiff and accordingly had no control over the manner in which he discharged his duties and responsibilities. That, in my view, is a factor which tends against a conclusion that the duty owed by SPG to the plaintiff extended beyond that arising from the relationship of occupier and entrant.

Further, as a general proposition, the common law does not impose a duty of care on one person to protect another person from the risk of harm unless that person has created the risk. [141] Although such statement of principle was made in the context of duties imposed upon public authorities, it remains one of general application. The submissions advanced on behalf of the plaintiff in support of a conclusion that an extended duty of care was owed by SPG were based, at least in part, upon the proposition that SPG knew of the gap over the fire stairs around the time of the February incident. For the reasons I have already set out, I am not satisfied that SPG did know of the gap prior to the subject incident, much less that it created it.

Moreover, the common law does not ordinarily impose liability for omissions. [142] In Smith v Littlewoods Organisation Limited [143] Lord Goff of Chieveley observed:

In Pyrenees Shire Council v Day [144] McHugh J observed that the common law renders a person liable in damages for a failure to act only when some special relationship exists between the person harmed and the person who fails to act. Similarly, in Smith v Leurs [145] Dixon J observed that the common law does not generally impose any duty on a person to take steps to prevent even very serious harm befalling another. Those statements of principle tend against a finding that SPG owed the plaintiff any extended duty of care of the kind for which the plaintiff contends.

Further, and for the reasons I have already set out, the plaintiff clearly knew that in pursuing the intruder he was acting completely contrary to the instructions he had been given. He also knew that by acting that way, he was placing himself in great danger. That, in my view, has a direct bearing upon the scope of any duty which SPG might have owed the plaintiff, and tends against a conclusion that such duty extended beyond that imposed by the relationship of occupier and entrant. In Papatonakis v Australian Telecommunications Commission [146] Mason J observed that the content of an occupier’s duty to exercise reasonable care for the safety of an invitee will vary according to the circumstances, including the degree of knowledge and skill which may reasonably be expected of the invitee, and the purpose for which the invitee is on the premises. In the present case, the plaintiff, who was not engaged or employed by SPG, was present on the premises in the capacity of a trained security guard who had been instructed about what to do when an intruder came onto the premises, and who acted contrary to those instructions. SPG was entitled to expect that he would do as he was instructed, and act in a way which was conducive to protecting his own safety.

Another difficulty faced by the plaintiff in seeking to extend the duty of care owed by SPG arises from the fact that his injuries were a consequence of the criminal behaviour of an intruder whose entry was unauthorised and unexpected. In Modbury Triangle Shopping Centre Pty Limited v Anzil and ors [147] (“Modbury”) the plaintiff, who was an employee of a store owner in a shopping centre, sued the centre (as occupier) for damages arising out of an assault perpetrated in a car park at a time when the lighting which would otherwise have illuminated the area was turned off. Gleeson CJ observed [148] that whilst the occupier owed the plaintiff a duty of care in relation to the physical state and condition of the car park of the premises, it was another question entirely as to whether the occupier owed a duty of a kind relevant to the harm which befell the plaintiff, namely the assault. Having noted [149] that the occupier had no control over the behaviour of those who were responsible for the assault, and no knowledge or forewarning of what they planned to do, his Honour said: [150]

Whilst his Honour found it unnecessary to express a concluded view as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, in the absence of some special relationship, the common law would impose a duty to exercise reasonable care to prevent harm to another from such behaviour, he noted that as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another. His Honour then said: [151]

In the same case Hayne J reiterated that whilst an occupier of land owes a duty of care to those who enter it, [152] in cases where a duty to control the conduct of a 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. [153] That is obviously not the case here. His Honour went on to say: [154]

In the present case, SPG had no control over the plaintiff, and no control over the intruder. Further, given my conclusion that SPG was not aware of the gap, this was not a case in which SPG had failed to control access to, or the continued presence of persons on, the premises.

The circumstances in which one party might owe a duty of care to another in relation to the criminal behaviour of a third was also considered in Ashrafi Persian Trading Company Pty Limited t/a Roslyn Gardens Motor Inn v Ashrafinia [155] . In that case, the respondent suffered severe injuries as a result of being assaulted by an unknown person whilst sleeping in a ground floor room of a motel occupied by the appellant. The respondent successfully sued the appellant, as occupier, for damages at first instance. Heydon JA (as his Honour then was, and with whom Mason P and Handley JA agreed) allowed the appellant’s appeal and concluded that the trial judge had erred in concluding that the appellant owed a duty of care to prevent the respondent from being attacked by a third party.

In my view, there was nothing particular about the relationship between SPG and the plaintiff which would support the conclusion that a duty of care, over and above that imposed by the relationship of occupier and entrant, was owed to the plaintiff by SPG. In those circumstances, and bearing in mind that the plaintiff’s asserted injuries were brought about by the unlawful act of a third party, I accept the submission of senior counsel for SPG that it would be generally contrary to both authority and principle to conclude that SPG owed the extended duty of care for which the plaintiff contends.

BPG had the obligation of providing security services at the premises. BPG did not own or lease the premises and had no physical presence there, for example by way of an office. There is no evidence that BPG controlled any commercial activity on the premises, or controlled who could come onto, and go from, the premises. All of these circumstances, particularly the absence of any control, [156] support the conclusion that BPG was not an occupier of the premises.

That leaves the question of whether BPG owed the plaintiff a duty of care which was analogous to that owed by an employer to an employee. In the course of his submissions, senior counsel for the plaintiff referred me to the decision in Karatjas v Deakin University [157] (“Karatjas”) in support of the proposition that BPG did owe such a duty of care. In Karatjas the appellant, who was an employee of a contractor which operated a cafeteria on the campus of Deakin University, was assaulted in the course of walking to her car. Ordinarily, the appellant made her way to her car by means of a well-lit path, however temporary arrangements had been put in place which had necessitated her taking an alternative route to the car park. It was not disputed that the appellant’s employer (the contractor) owed her a duty to take reasonable care to provide a safe system of work. The respondent University argued, by reference to Modbury, that the appellant had failed to establish that it owed her a duty of care. That submission was upheld by the trial judge. However, the appellant’s appeal was successful

In referring to Modbury, Nettle JA (as his Honour then was, and with whom Hansen JA and Kyrou AJA agreed) concluded [158] that the mere fact that the University was the occupier of the campus was not a sufficient basis on which to impose a duty of care to guard entrants to the campus against the risk of criminal attacks by third parties. In the present case, for the reasons I have already outlined, BPG was not even an occupier of the premises. Taken by itself, his Honour’s reasoning would support a conclusion that BPG did not owe the plaintiff a duty to prevent injury arising from criminal acts committed by a third party such as the intruder.

However, having made reference to the decision in Stevens v Brodribb Sawmilling Co Ltd [159] (“Stevens”) Nettle JA said (in passages specifically relied upon by senior counsel for the plaintiff): [160]

His Honour’s reference to English was a reference to the decision in English v Rogers [161] in which it was found that the owner of a hotel was liable to an employee of a contract cleaner for injuries sustained whilst working at the hotel in the early hours of the morning.

His Honour stressed the importance of looking at the totality of the circumstances in order to determine whether a duty of care was owed. In the present case, and although the relationship between BPG and the plaintiff was not strictly one of employer and employee, I am unable to accept the submission advanced by senior counsel that BPG and the plaintiff had no relevant relationship at all. This is so for a number of reasons.

Firstly, there is unchallenged evidence that the plaintiff wore a uniform which bore the BPG logo. [162]

Secondly, I am satisfied, for the reasons previously set out, that Bill Morris, the BPG Operations Manager, was at least partly responsible for the plaintiff’s training. [163]

Thirdly, and consistent with what I have found to be the training role played by Mr Morris, the various manuals which contained the instructions to the plaintiff as to security procedures to be adopted were issued by BPG. [164]

Fourthly, the email of Mr James, the Managing Director of BPG, of 16 February 2009 prescribed aspects of the system of work to be adopted at the premises. It also directed that any reports in relation to security issues be directed (amongst other people) to him. In these respects BPG had some degree of control over the plaintiff. [165]

All of this evidence establishes that there was a relationship between BPG and the plaintiff which, relevantly, extended to matters of the system of work, training and reporting. In each of those respects, BPG had some control over the plaintiff’s conduct, and the discharge of his responsibilities. In these circumstances, I am satisfied that the relationship between BPG and the plaintiff was such as to impose a duty of care on BPG to provide the plaintiff with a safe system of work.

The further question is whether or not that duty of care extended to a duty to protect the plaintiff from the criminal behaviour of an intruder. In Modbury Gleeson CJ [166] identified the relationship between employer and employee as being in one in which such a duty may be owed, regardless of the fact that such behaviour may be both random and unpredictable. One of the authorities to which his Honour referred in that context was Chomentowski v Red Garter Restaurant Limited. [167] In that case, the plaintiff had been employed by the defendant as the head waiter and manager of a restaurant, and had the responsibility to deposit takings in the night safe of a bank near the restaurant. When doing so in the early hours of one morning, the plaintiff was attacked and robbed, suffering severe injuries for which he was awarded damages. On appeal it was asserted that there was no evidence upon which the jury could properly have found that the defendant employer was liable. In dismissing the appeal, the Court concluded that a duty of care arose from the relationship between the plaintiff and the defendant. Sugerman P [168] found that it was open to the jury to conclude from all of the circumstances that there was a reasonably foreseeable risk of robbery, and of injury to the plaintiff. His Honour went on to say: [169]

In Ashrafi Heydon JA [170] made reference to relationships in which one party may have a duty to protect another from the criminal conduct of a third. One of the relationships to which his Honour referred in that context was that of employer and employee, although his Honour also observed [171] that ultimately the determination rested upon the existence of particular circumstances which rendered it just to impose a duty of care.

In the present case, and quite apart from the matters to which I have already referred, [172] the relevant circumstances included the fact that the premises housed a number of commercial businesses which, as a matter of common sense, would necessarily attract the interest of potential criminals. That was obviously a circumstance known to BPG, because it was BPG who was engaged to provide security services at the premises. It was as consequence of that that the plaintiff came to be employed by Dynamite.

In all of these circumstances, I am satisfied that the duty owed by BPG extended to taking reasonable care to prevent the plaintiff from being attacked as the consequence of the behaviour of an intruder who came onto the premises.

Section 5B of the CLA is in the following terms:

Senior counsel for the plaintiff submitted that for the purposes of s 5B of the CLA, the proper categorisation of the risk in the present case was the risk of personal injury being sustained by security personnel, present at the premises alone and after hours, as the result of acts of intruders who might unlawfully enter upon the premises whilst they were closed to members of the public.

It was submitted that the risk of harm posed by the gap over the fire stairs could have been avoided by implementing the measures set out by Mr Stanwix in his email of 10 February 2010 [173] . It was further submitted that had such measures been taken, it was reasonable to conclude that the subject incident would not have occurred and that accordingly, the duty of care owed by each of SPG and BPG was breached.

Senior counsel for SPG submitted that the issue of whether there was a breach of duty owed to the plaintiff was to be considered prospectively, not by asking whether taking any of the steps particularised against SPG could have prevented the plaintiff’s injury. Senior counsel submitted that properly defined, and for the purposes of s 5B of the CLA, the risk of harm that the plaintiff faced was the risk of sustaining injury arising from a direct encounter with an intruder on the premises, whilst carrying out his duties as a security guard.

Senior counsel for SPG further submitted that the real issue for consideration was what, if any, precautions a reasonable person in SPG’s position should have taken. In this respect, senior counsel again emphasised that SPG had no control over the way in which the plaintiff carried out his duties, and submitted that the duty of care that it did owe to the plaintiff was not breached because (inter alia):

Whilst senior counsel for BPG generally adopted the submissions of senior counsel for SPG, he also made a number of further submissions specific to BPG’s position.

Senior counsel submitted that in circumstances where BPG had no actual presence at the premises, there was no basis upon which to find that BPG had breached any duty of care by not remedying the gap over the fire stairs. Whilst the submissions of senior counsel accepted that BPG, through Mr Stanwix, had become aware of the gap, it was submitted that the email of Mr Stanwix [174] had made it plain that BPG was assuming no responsibility for it. Senior counsel emphasised that in the concluding paragraph of his email, Mr Stanwix had stressed the need for those to whom the email was being sent to assess and address the issue. It was submitted that these circumstances, along with the fact that nobody had requested BPG to fill the gap, tended against a conclusion that a reasonable response to the risk on the part of BPG involved doing any more than it had done, namely drawing the gap to the attention of those whom it considered responsible for it.

To the extent that the plaintiff alleged that BPG had breached its duty of care by not administering proper training, senior counsel submitted that it was clear from the evidence that the plaintiff had been properly trained, and that the adequacy of that training was reflected in the plaintiff’s clear understanding of it. Senior counsel for BPG also pointed to the fact that the plaintiff had some previous experience as a security guard prior to coming to the premises.

For the purposes of s 5B of the CLA, the relevant enquiry is prospective. [175] Hindsight reasoning, in which a retrospective identification is made as to what would have avoided the injury, reflects an erroneous approach.

For the purposes of s 5B, the proper formulation of the risk faced by the plaintiff in the present case was the risk that he might sustain injury as a consequence of an encounter with an intruder. In my view, the formulation of risk relied upon by the plaintiff [176] involves adopting a retrospective approach to the events that are now known to have happened. [177]

Having regard to the nature of the premises, and the plaintiff’s position, I am satisfied that the identified risk was both foreseeable [178] and not insignificant. [179] The real question is whether a reasonable person in the position of SPG and or BPG would have taken precautions.

In determining that question, I must take into account the provisions of s 5B(2) of the CLA. I am satisfied that there was a probability that harm would come to the plaintiff if care were not taken, [180] and that having regard to all of the circumstances, including the nature of the plaintiff’s work, there was a likelihood that such harm would be serious. [181] There is no social utility in intruders making unauthorised entry into commercial premises. [182]

In the case of SPG, the plaintiff placed significant emphasis upon what was submitted to be SPG’s knowledge of the gap over the fire stairs. However, for the reasons I have already expressed [183] the evidence does not satisfy me that SPG was aware of the gap. Beyond that, there is no evidence of any failure on the part of SPG to take precautions to avoid any identified risk. For these reasons I am not satisfied that SPG breached any duty of care that it owed to the plaintiff.

In terms of BPG, I do not accept the proposition that it breached the duty it owed to the plaintiff by not adequately training him. The plaintiff’s evidence is to the contrary, as is the evidence concerning his familiarity with, and understanding of, the instructions conveyed to him in the various manuals issued by BPG. His admitted understanding of those instructions reflects the fact that his training was effective. In my view, the training which was administered reflects BPG having provided the plaintiff with a safe system of work. That training, and the instructions which were provided to the plaintiff, discharged BPG’s obligation to take reasonable care to prevent the plaintiff from being attacked by an intruder.

In terms of a failure on the part of BPG to close the gap, its position is different to that of SPG by virtue of the fact that it obviously knew of the gap through Mr Stanwix. However, the response by Mr Stanwix was, in my view, a reasonable one, particularly bearing in mind that BPG was not the occupier of the premises and had no physical presence there.

For these reasons, I am not satisfied that BPG breached the duty of care it owed to the plaintiff.

Section 5F of the CLA is in the following terms:

Section 5G is in the following terms:

Senior counsel for the plaintiff submitted that it was important to bear in mind that the CLA did not enact a code which had the effect of replacing the common law relation to the defence of volenti non fit injuria. Rather, he submitted that the provisions of the CLA:

Senior counsel emphasised that the plaintiff was injured in the course of his employment and submitted that it had been “recognised in employment cases” that in all but the most extreme of instances, the economic imperative to do dangerous work will displace any notion of voluntariness. He submitted that in these circumstances, the provisions of ss 5F and 5G of the CLA had no application in the present case.

Senior counsel for SPG submitted that the risk of a person in the plaintiff’s position sustaining injury as the result of a direct encounter with an intruder was an objectively obvious risk. Senior counsel also relied upon the actions of the plaintiff, to which I have previously referred at length, in ignoring the instructions he had been given, and in acting in a way which jeopardised his safety.

It was submitted that in the circumstances, and aware of the risk, the plaintiff acted in a way which voluntarily accepted the obvious risk of harm and that as a consequence, SPG was not under a duty to warn of such risk.

These submissions were generally adopted by senior counsel for BPG.

In Carey v Lake Macquarie City Council [184] (“Carey”) McClellan CJ at CL, having summarised the common law defence of volenti non fit injuria, [185] concluded that the effect of ss 5F and 5G of the CLA is that a plaintiff is presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. Whilst that presumption is rebuttable, a plaintiff cannot rebut it by claiming that even though he or she was aware of the general risk of harm, they were not aware of all its possible manifestations, including the one that eventuated. [186] Accordingly, the question which must be asked is whether the conduct of the plaintiff involved a risk of harm that would have been obvious to a reasonable person in his position. [187]

Whether a risk is obvious is an objective determination which is to be made having regard to the circumstances in which the particular plaintiff finds himself or herself. [188] It is not the plaintiff’s state of mind which is relevant, but what a reasonable person in his or her position would regard as obvious. However, the plaintiff’s evidence remains material to that assessment.

The term “obvious” means that both the factual scenario facing a plaintiff, and the risk, are apparent to, and would be recognised by, a reasonable person in the position of a plaintiff exercising ordinary perception, intelligence and judgment [189] . In the context of the present case, a person in the position of the plaintiff would be an experienced security guard with knowledge of the presence, on premises he or she was guarding, of an intruder with obvious criminal intentions.

The essence of the primary submission of senior counsel for the plaintiff was that because the plaintiff was injured in the course of his employment, the so-called “employment cases” meant that the provisions of ss 5F and 5G did not apply. That submission was based upon commentary in Villa, in the context of the author discussing the common law defence of volenti non fit injuria [190] . Leaving aside the fact that SPG did not employ the plaintiff, the author does not suggest that the economic imperative to do dangerous work will displace any notion of voluntariness, to the point that ss 5F and 5G of the CLA will never apply to a case where a person was injured in the course of his employment. Whether ss 5F and 5G apply in the present case is not to be resolved according to whether the plaintiff was injured in the course of his employment (as was clearly the case). The question is whether the risk that I have identified was obvious in the sense contemplated by s 5F, and whether the plaintiff should be presumed to have been aware of it as contemplated by s 5G.

For the reasons I have previously set out, the plaintiff was well aware of the instructions which had been given to him in the various manuals. At their most fundamental level, those instructions made it clear to the plaintiff that in the event that an intruder came onto the premises, it was not his function to intervene. His function was to stay within the confines of the control room and call the police.

The plaintiff also knew that to act contrary to those instructions, and in particular to pursue the intruder as he did, was inherently dangerous from the point of view of his own safety. His conduct in following the intruder to level one served no purpose whatsoever. Having followed the intruder, the plaintiff inexplicably drew the intruder’s attention to his immediate presence.

The plaintiff made a conscious decision to pursue, and then confront, the intruder, in the knowledge that in doing so he was breaching his instructions, breaching his training, and jeopardising his safety. The plaintiff was aware that there was a risk that he might sustain injury as a consequence of an encounter with an intruder. For these reasons the risk of sustaining injury by a direct encounter with an intruder was obvious to him. It would also have been obvious to any reasonable person in his position.

It follows that as a consequence of the operation of ss 5F and 5G of the CLA the risk of the plaintiff being assaulted was an obvious risk, of which the plaintiff is presumed to have been aware.

Section 5I of the CLA is in the following terms:

Senior counsel for the plaintiff submitted that s 5I of the CLA had no application because the injury sustained by the plaintiff was not the materialisation of an inherent risk. This, it was submitted, was because the risk could have been avoided by the exercise of reasonable care.

Senior counsel for SPG submitted that:

Senior counsel submitted that the risk which had materialised in the present case could not have been avoided by the exercise of reasonable care on the part of any person. In advancing that submission, senior counsel stressed the necessity to focus, not upon the occurrence itself, but upon the risk of that occurrence. He submitted that it was self-evident that there was a risk, in the sense of there being a chance, possibility or danger, that a security guard in the position of the plaintiff would encounter an intruder who was intent upon breaking into the premises. Senior counsel further submitted that it was self-evident that there was a risk that such an intruder might behave in an irrational, unpredictable or violent manner. It was submitted that such a risk was unavoidable, in the sense that it could not be eliminated by the exercise of reasonable care on the part of any person, and that the conclusion should be reached that any harm sustained by the plaintiff resulted from the materialisation of an inherent risk for which SPG was not liable.

These submissions were generally adopted by senior counsel for BPG.

I accept the submission of senior counsel for SPG that any enquiry as to whether a risk is inherent must focus upon the risk of the relevant occurrence, as opposed to the occurrence itself. [191] The question is whether, on the basis of a prospective enquiry, the risk faced by the plaintiff could have been avoided by the exercise of reasonable care and skill on the part of SPG or BPG. [192]

The role of a security guard in the position of the plaintiff encompassed the performance of a number of duties. Fundamentally, it was the plaintiff’s duty to guard the premises. The nature of the duties undertaken by the plaintiff necessarily involved a risk that he would sustain injury, including psychological injury, as the consequence of a confrontation with an intruder on the premises.

In Coco-Cola Amatil (NSW) Pty Limited v Pareezer [193] Young CJ in Eq (as his Honour then was) observed that every citizen faces an inherent risk of being robbed or shot no matter where he or she is, or what he or she may be doing at the time. Accepting that to be the case, the risk of a security guard facing perils of that nature must be the same if not greater and amounting, in my view, to an inherent risk.

It follows in my view that s 5I of the CLA applies, and that neither SPG nor BPG are not liable to the plaintiff.

Counsel for the plaintiff emphasised that the Nominal Insurer did not dispute that Dynamite owed the plaintiff a non-delegable duty of care. It was submitted that Dynamite took no steps to eliminate the risk of an attack by an intruder or to provide adequate safeguards for the plaintiff, and was therefore liable for a breach of its duty. It was submitted, in particular, that Dynamite had failed to devise and implement a system of work which enabled the plaintiff to carry out his work safely, and was therefore in breach of its duty to take reasonable care to prevent risk of injury to the plaintiff. [194]

Counsel for the Nominal Insurer accepted that Dynamite had employed the plaintiff, and that it owed a non-delegable duty of care to him. However, counsel submitted that such duty of care had not been breached. In this regard counsel advanced two principal submissions.

Firstly, he submitted that a non-delegable duty was not a duty of strict liability, and that the existence of such a duty did not render Dynamite liable for injury to the plaintiff in the absence of a breach of duty by some other party.

Secondly, he submitted that the plaintiff had been provided with a safe system of work which had been designed to prevent the very harm that befell him. Counsel submitted that the plaintiff had been taught that system, that he understood it, and that in plain breach of what he knew and understood, he had acted in a way which exposed himself to the risk of the injury that had actually occurred.

It was further submitted that the instructions which had been given to the plaintiff as to what to do in the event of an intruder coming onto the premises were clear, and that the plaintiff’s breach of those instructions was even clearer. In support of these submissions, counsel for the Nominal Insurer relied, in particular, on the evidence of how the plaintiff had acted in pursuing the intruder. [195]

It was submitted in the alternative that the plaintiff’s conduct constituted either contributory negligence or voluntary assumption of risk, and that in either case, any award of damages which might be made to the plaintiff should be substantially reduced.

There is no doubt that Dynamite owed a non-delegable duty of care to the plaintiff or, in other words a duty, the performance of which cannot be delegated on the basis that such delegation constitutes compliance with it. [196] The issue is whether or not that duty was breached.

In advancing the submission that a non-delegable duty is not one of strict liability, counsel for the Nominal Insurer relied upon the reference by Wilson and Dawson JJ in Stevens [197] to a “direction” taken by the High Court away from the notion of imposing strict liability in respect of tortious behaviour, and towards the notion that the extent of any duty of care would depend upon the magnitude of the risk involved, and the degree of its probability.

Counsel also placed particular significance on the observations of Campbell JA in Transfield Services (Australia) Pty Limited v Hall; Hall v QBE Insurance (Australia) Pty Limited [198] (“Transfield”). In that case the respondent, a member of the Royal Australian Navy Reserve, sustained injury whilst abseiling down a high ropes course. A corporation had contracted with the Commonwealth to maintain the course, pursuant to a contract which provided (inter alia) that the corporation was to ensure that any sub-contractor which was engaged by it to carry out work was to do so in a proper and workmanlike manner. A sub-contractor to the corporation had, prior to the respondent’s accident, negligently failed to carry out a proper inspection of the ropes and it was argued that the contractor had owed the respondent a duty of care which could not be delegated to the sub-contractor.

It will be evident from such summary that the facts in Transfield were quite different from those in the present case. It will also be evident that the principal issue before the Court in Transfield, namely whether the contractor owed the respondent a duty of care, does not arise in this case. There is no dispute that Dynamite, as the plaintiff’s employer, owed him a non-delegable duty of care.

The first submission advanced by counsel for the Nominal Insurer based upon the decision in Transfield was that Dynamite did not breach its duty because the existence of a non-delegable duty “did not make (Dynamite) strictly liable for injury to the plaintiff in the absence of breach of duty by anyone else”. [199] In support of that submission, counsel relied upon the following passages of the judgment of Campbell JA [200] relating to the nature of a non-delegable duty:

The effect of counsel’s submission, as I understood it, was that if I were to find that neither SPG nor BPG breached their respective duties of care (if any) to the plaintiff, it would follow that Dynamite was not in breach of its non-delegable duty. I am unable to accept that proposition. I am equally unable to conclude that those parts of Campbell JA’s judgment in Transfield which are set out above should be regarded as authority for it. What his Honour said [203] was that before a plaintiff can succeed in a case based on a non-delegable duty of care, he or she must establish that someone has been negligent. The italicised portion of his Honour’s judgment at [55] makes it clear that the “someone” would include someone in the position of Dynamite. In the context of the present case, I do not understand his Honour’s judgment to be authority for the proposition that a finding that neither SPG nor BPG breached their respective duties of care should, as a matter of course, lead to a finding that Dynamite did not breach its duty of care. Irrespective of what conclusion might be reached in relation to the respective positions of BPG and SPG, Dynamite’s position is to be resolved by asking whether it breached its (admitted) non-delegable duty to provide the plaintiff with a safe system of work.

For the reasons previously stated [204] I have concluded that the relationship between the plaintiff and BPG was akin to that of the relationship which exists between an employer and an employee, and that in those circumstances, the duty owed by BPG to the plaintiff extended to the duty to protect him from the criminal acts of third parties. Given that the relationship between Dynamite and the plaintiff was one of employer and employee, the same conclusion must follow. However, although that duty was owed by Dynamite to the plaintiff, I am not satisfied it was breached.

In conjunction with BPG, Dynamite provided the plaintiff with a safe system of work by ensuring that he was properly trained and instructed, not only in how to carry out his duties at a general level, but specifically in what to do in the event that he was confronted by the very situation with which he was confronted in the present case. The instructions which were administered in the course of the training which was provided to the plaintiff, which included the contents of the manuals, were specifically directed to the very situation in which the plaintiff found himself. The plaintiff knew and understood those instructions. He acted in plain breach of them. There was no breach of duty on the part of Dynamite. It was the plaintiff who was entirely the author of his own downfall. The plaintiff’s action against the Nominal Insurer therefore fails.

The plaintiff claims damages under the following heads:

The plaintiff was born on 8 January 1977. He is presently 42 years of age. He attended Cleveland Street High School from 1990 to 1993 and left part way through Year 10. [205] He conceded having experienced “difficulties” at school. He was in fact asked to leave two high schools because of truanting. [206]

When the plaintiff left school he commenced working with his father who was a builder. [207] His relationship with his father was troubled. The plaintiff was, inter alia, subjected to violence at the hands of his father. He agreed that these circumstances had “a little bit” of impact on him although he did not agree that his relationship with his father was something which had later “disturbed and haunted” him. The plaintiff was asked: [208]

The plaintiff agreed [209] that he had witnessed his father being violent to his siblings, as well as to his mother.

The plaintiff’s mother died at the hands of his father in 1994. [210] The plaintiff agreed that this was a very disturbing event in his life, and one that had caused him great emotional distress, depression and unhappiness of a kind that he had never previously experienced. [211] As a consequence of his mother’s death, the plaintiff did not work for a period of time and described himself as being in a “pretty bad way emotionally”, such that he was forced to seek counselling. [212]

Following his mother’s death, the plaintiff consulted Dr Summers, a General Practitioner. He was cross-examined at some length regarding his various consultations with Dr Summers and the feelings that he was experiencing at the time of those consultations. [213] The plaintiff agreed [214] that he saw Dr Summers on a fairly regular basis throughout 1996. He also agreed [215] that he continued to be depressed throughout 1996. When asked [216] whether his depression was worsening at that time, the plaintiff said that it was “just as normal”, that he was “traumatised”, and that his mother’s death had affected (him). [217]

The plaintiff was specifically cross-examined in relation to a number of entries in the clinical notes produced by Dr Summers on subpoena. Those entries included the following:

On 28 February 1996 the plaintiff consulted Dr Summers whose clinical note is in the following terms:

A further clinical note of Dr Summers of 20 April 1996 is in the following terms:

The plaintiff was also cross-examined regarding his use of marijuana in the period between 1996 to 1997. [225] He denied that he was a regular user of marijuana at that time and consistently maintained that he used it very occasionally. [226] As discussed further below, that is not consistent with the notes of Dr Summers.

It April 1997 the plaintiff’s father died in prison. The plaintiff conceded that this had affected him. [227] On 17 April 1997 the plaintiff saw Dr Summers whose clinical note is in the following terms:

The plaintiff had no recollection of this consultation, and no recollection of being prescribed Aropax. [229] In June 1997, and again in September 1997, Dr Summers issued the applicant with certificates certifying that he was unfit for work on account of “Depression”. [230]

The plaintiff denied that he increased his intake of marijuana through 1997 and maintained that he was still using it only occasionally. He expressly rejected the proposition put to him in cross-examination that he was, at this time, using marijuana to “an excessive degree”. [231] However, there is evidence that the plaintiff saw Dr Summers again on 9 January 1998. Dr Summers’ note is in (inter alia) the following terms:

As a matter of common sense, the reference to “withdrawal” from marijuana suggests more than occasional use.

The plaintiff’s consultations with Dr Summers extended into 1998. He agreed [233] that he had seen Dr Summers on 14 April 1998 at which time he was still very depressed and continuing to seek treatment from a counsellor. Dr Summers’ clinical note of 14 April 1998 reads (inter alia) as follows:

Another clinical note of Dr Summers of 23 September 1998 is in not dissimilar terms: [235]

On 17 February 1999 the plaintiff again saw Dr Summers whose clinical note is in (inter alia) the following terms: [236]

The plaintiff explained [237] that he had commenced suffering flashbacks after his mother’s death and that at the time that he saw Dr Summers on 17 February 1999 he was continuing to experience flashbacks “here and there”. He agreed that he was experiencing flashbacks from 1994 to 1997 but said that they were becoming less over that period. [238]

The plaintiff was also cross-examined as to why it was that in all of these circumstances he had not, by 1999, consulted a psychiatrist. He denied that he was resistant to doing so, and said that he “just didn’t get around to it. [239]

On 29 June 1999 the plaintiff saw Dr Summers who recorded that he was “depressed again”. [240] On 4 December 1999 Dr Summers issued the plaintiff with another certificate for the period 6 December 1999 to 6 January 2000 on account of “major depression”. [241]

The plaintiff agreed that between 1994 and the end of 1999, a period of 5 years, he had not returned to any formal work and that his sole income was from Centrelink payments. He also agreed that the payments he received from Centrelink were supported by the issue of certificates from Dr Summers certifying that he was unfit for work because of depression. [242]

On 2 May 1999 the applicant again saw Dr Summers who noted that he had “been to see a psychiatrist”. [243] Despite that note, the plaintiff denied that he had seen a psychiatrist and consistently maintained that he had seen only a “counsellor”. [244] The plaintiff agreed that he continued to be depressed in 1998, evidence which was consistent of a clinical note of Dr Summers of 14 April 1998: [245]

In February 1999 the plaintiff was continuing to receive counselling from Shane Brown once or twice per week. It was about this time he commenced to look for work. [246] The plaintiff explained that he had no formal qualifications, as a consequence of which he decided to undertake a security course in 2000. He agreed [247] that he had commenced to think about going back to work in about December 1999. The plaintiff was cross-examined extensively about a consultation with Dr Robyn Haig, Psychiatrist, which had taken place on 17 December 1999 for the purposes of assessing, on behalf of Centrelink, his capacity for work. The plaintiff had no recollection of that consultation and did not believe that he had ever been to Campbelltown where Dr Haig’s consulting rooms were located. [248] However, the plaintiff agreed [249] that in December 1999 he was still suffering from difficulties with sleeping, nightmares, a loss of appetite and concentration. He also agreed that these symptoms had persisted for about 4 or 5 years and dated back to the time at which his mother had died. [250] The plaintiff maintained that he did not take any anti-depressants between 1994 and 1999 and that he smoked marijuana only on a casual basis. [251]

Although the plaintiff had no recollection of a consultation with Dr Haig, a report of Dr Haig of 22 December 1999 was tendered. [252] The history recorded by Dr Haig included the following:

In terms of the plaintiff’s mental state, Dr Haig reported [253] that the plaintiff was “not suicidal” and “did not appear to be seriously depressed”. Whilst Dr Haig described the plaintiff as “tense”, and as having reported a “preoccupation” with thoughts of his mother’s death, he noted that there were no psychotic features such as delusions or hallucinations. Under the heading “Diagnosis” [254] Dr Haig said the following:

In terms of the plaintiff’s fitness for employment Dr Haig expressed the following opinion: [255]

The views expressed by Dr Haig were somewhat at odds with those recorded by Dr Summers around the same time. On 14 January 2000 Dr Summers recorded having seen the plaintiff and having issued him with a medical certificate for the period 6 January to 29 February 2000 on account of “Major Depression”. [256]

The plaintiff was assessed by a Dr Haperek on 4 May 2004 who diagnosed depression and who reported that the plaintiff had suffered from major depression since November of 2003. He noted that the plaintiff had been prescribed Effexor, which is inconsistent with the plaintiff’s assertions in his evidentiary statement that he had never been prescribed medication. [257]

On 7 May 2004 the plaintiff, again consulted Dr Summers. He had not done so since 19 July 2001, at which time the plaintiff had sought a reference from Dr Summers for a security licence. Dr Summers’ clinical note of the plaintiff’s consultation with him on 7 May 2004 reads (inter alia) as follows: [258]

The plaintiff denied that he was suffering from any form of depression in 2004 but could not recall why it was that he saw Dr Summers on that occasion. [259] Clearly, given the clinical note, his denial in that regard was not accurate. He had no recollection of Dr Summers prescribing him with any medication. [260]

Dr Summers was not the only medical practitioner who recorded such matters. On 6 June 2004, the plaintiff was examined by a Dr Ying for the purposes of an application for a disability support pension. Dr Ying reported [261] that the plaintiff’s ability to work was reduced because of his “mental condition”. He also reported that he “functioned” with some difficulty due to moderated regular symptoms”. Those symptoms were, given the balance of Dr Ying’s report, symptoms of depression. Dr Ying also noted that his medications at that time included Effexor. It was the opinion of Dr Ying that the functional impact of the plaintiff’s condition was not likely to change during the next two years.

On 7 January 2005 the plaintiff saw Dr Summers again. His clinical note records the following: [262]

The plaintiff gave evidence that he did “not believe” that he had told Dr Summers that his depression was continuing and denied suffering any depression at all at that time, asserting that he was “completely normal”. [263] Again, those denials are not consistent with the objective evidence.

The plaintiff commenced consulting medical practitioners at the Bonnyrigg Family Medical Centre in about 2007. He did not consult any of those doctors on account of depression or anxiety. [264]

I had the opportunity to observe the plaintiff closely as he gave his evidence. In some respects he was vague. In other respects his evidence was objectively false. When pressed in relation to some matters, he claimed an inability to recall. Overall, the plaintiff was a most unsatisfactory witness. I formed the view that he regularly, and deliberately, attempted to down play the significance of aspects of his medical history, either by claiming that the could not recall particular events and consultations, or by giving evidence which was at odds with other objective evidence. It is entirely unsurprising that the plaintiff suffered depression after the horrific experience of his mother’s death. However, the plaintiff’s assertion that he “suffered depression for a few years and had counselling” substantially understates the true position. Moreover, his assertion that he was never placed on medication is simply not consistent with the evidence.

The plaintiff’s evidence concerning his use of alcohol and marijuana was also telling and generally unsatisfactory. Despite his evidence to the contrary, the plaintiff has clearly had a problem with marijuana addiction for some considerable time.

The plaintiff relied on the expert evidence of Dr Phillips who provided a report of 1 March 2017 and who also gave oral evidence. In his report, Dr Phillips expressed the following conclusion: [265]

In reaching these conclusions, Dr Phillips was provided with a medical history which he expressed in the following terms: [266]

It will be apparent from the evidence to which I have already referred that the history provided by the plaintiff to Dr Phillips was, to say the least, inaccurate. In particular, the suggestion that the plaintiff had never suffered psychological problems before the subject incident, and had not been treated with medication, was simply false. Significantly, Dr Phillips said the following in the course of his evidence: [267]

The significance of this is that Dr Phillips made it clear that his opinions were premised upon the accuracy of the history with which he was provided: [268]

Dr Phillips expressly agreed that a detailed and accurate history was of the utmost importance in determining the aetiology of a particular psychiatric condition. [269]

In assessing the evidence of Dr Phillips, it is also significant that the history with which he was provided contained no reference at all to the circumstances surrounding the death of plaintiff’s mother. Dr Phillips accepted that the murder of the plaintiff’s mother was a matter of some importance. [270] He accepted that an act of violence of that nature is always highly traumatic and must always be taken into consideration because it would be a matter of significance in determining that aetiology of the plaintiff’s symptoms. [271] Notwithstanding these circumstances, Dr Phillips agreed that there was nothing in his report which indicated that he had even considered this issue. [272]

Dr Phillips was also cross-examined about the inconsistency between the histories recorded by some of the medical practitioners, and the plaintiff’s evidence in relation to those histories. Dr Phillips was asked: [273]

Dr Phillips had previously been asked: [274]

Dr Lewin, who examined the plaintiff on behalf of SPG, expressed conclusions which were diametrically opposed to those of Dr Phillips. In his report of 5 December 2013 Dr Lewin expressed the following conclusion: [275]

In cross-examination Dr Lewin said that the evidence suggested that, at the very least, the subject incident led to a worsening of something that was already there or in other words, an exacerbation. [276] He agreed that the alternative hypothesis was that posited by Dr Phillips, namely that it was a “fresh trigger super imposed upon a pre-existing vulnerability. [277]

Dr Lewin was taken to the evidence of the plaintiff’s former partner Melissa Smith. Ms Smith had no recollection of the plaintiff becoming very depressed in late 2003 or early 2004, nor did she have any recollection of him seeing doctors around that time, yet this was at a time when their relationship had started. [278] Whilst she was familiar with Dr Summers [279] the plaintiff had not told her that he was seeing Dr Summers and she did not know, one way or the other, whether the plaintiff was seeing any medical practitioner and obtaining treatment for depression in 2004. [280] Ms Smith maintained [281] that in 2005 the plaintiff appeared “just normal”. [282] In terms of the plaintiff’s use of marijuana, Ms Smith that they had “tried it” [283] but that neither she nor the plaintiff were using it “like for a regular thing, day in and day out”. [284]

Dr Lewin accepted that if Ms Smith’s account was an accurate, it would be entirely inconsistent with the plaintiff suffering from any form of depressive illness prior to the subject incident. [285] The difficulty is that in light of the medical evidence to which I have referred, particularly some of the clinical notes, Ms Smith’s account is not an accurate one. In my view, little weight can be attached to it.

In my view, the opinions of Dr Lewin should be accepted. There is a clear difficulty accepting the opinion of Dr Phillips in the light of the history that he was given.

I accept that the subject incident, involving as it did a threat of death, would have been a traumatic event from the plaintiff’s point of view. As Dr Lewin opined it is reasonable to conclude that the incident could have left the plaintiff feeling fearful or terrified. I accept that there was a degree of chronic post–traumatic stress disorder suffered by the plaintiff following the subject incident. However, that disorder must be viewed against the background of the plaintiff’s medical and other history which I have outlined and which included circumstances surrounding the death of his mother and his consistent use of marijuana.

In my view, the appropriate assessment in terms of non-economic loss is that the plaintiff’s injuries constitute 25% of a most extreme case. [286]

In the first of his evidentiary statements [287] the plaintiff gave the following work history: [288]

The plaintiff was cross-examined about the positions that he had previously held as a security officer: [289]

The plaintiff’s pre-accident employment history does him no favours. The history is limited and includes instances in which the plaintiff had his employment terminated. Those passages of the plaintiff’s evidence set out above reflected a clear tendency on the part of the plaintiff to blame others for those occasions on which he lost his employment. They also reflected a poor attitude to employment generally.

The plaintiff’s entitlement to future economic loss is governed by s 13 of the CLA which is in the following terms:

The plaintiff’s work history prior to the subject incident consisted of positions which were part-time, casual or intermittent. In the light of that history, and in the light of the plaintiff’s medical history, I cannot be satisfied that but for the subject incident, he would have continued to work as a security officer. In the light of his history, it seems to me that the most likely scenario was that the plaintiff employed, if at all, on the same intermittent, casual or part-time bases as was the position prior to the subject incident.

I would allow past economic loss of 6 months at a rate of $680.00 pw.

As to the future, I would allow a buffer of $25,000.00.

Past treatment expenses are assessed at $34,161.30

It is conceivable that the plaintiff will have some treatment expenses in the future, although there is an obvious difficulty in unravelling whether the need for any treatment stems from marijuana use or other matters extraneous to any injury he may have suffered in the subject incident. I would allow future treatment expenses of $25,000.00.