Dear Colleagues;

While there was no formal employment relationship with Optus, Campbell J ruled that the elements of “control” and other features of the relationship meant that Mr Wright was in an employment-like relationship (following the earlier decision in TNT v Christie), and hence that Optus owed him a general duty of care. Optus had naturally argued that under the principles spelled out by the HCA in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 they as occupiers of the building owed no duty to prevent third parties causing criminal harm to Mr Wright. But Campbell J held (justifiably in my view) that their relationship with him went beyond merely that of an occupier, and was the equivalent of the “employment” exception to the Modbury principle recognised in that decision. See [68]-[76].

There had been a breach of duty here when the Optus officers were aware of Mr George’s erratic behaviour but had encouraged Mr Wright to come up on the roof to help them deal with the situation. Campbell J discussed the adjustment of duty principles applying in the case of psychological harm under s 32 of the NSW Civil Liability Act 2002 and held that the conditions imposed by that section were satisfied.

The other feature of the case of some interest to me is the cross-claim against the employer IPA. It is well established, of course, that an employer owes a non-delegable duty of care to employees, so that they may be held strictly liable for the carelessness of contractors under whose authority the employee has been placed to do work: Kondis. Here however Campbell J, referring to the more recent decision of Basten JA for the CA in DIB Group v Cole [2009] NSWCA 210, said that where an employee had been sent to an environment over which the employer exercised no control, it was not appropriate to find a breach of NDD- see [147]-[148]. With respect, I disagree with this aspect of the decision. In DIB it was a case of a petrol tanker driver who was making a delivery- he had not in any sense been entrusted to the authority of anyone who controlled the premises. But here Mr Wright had indeed been “handed over” to work under the authority of Optus. As I read the decisions on NDD (a number of which involve labour hire situations) I think that IPA were arguably liable under the NDD principle. I think Christine Beuermann’s work on this area supports that principle as well. (My paper from Obligations VII discussed some of these issues.) Of course when it comes to apportionment of damages the court might conclude that IPA, in comparison to Optus, bore 0% responsibility. But to hold that there was no NDD liability as a matter of principle in a situation where a labour hire worker is placed on other premises is in my view to set up a narrow precedent which could be used to unduly restrict appropriate compensation in future cases.

Regards

Neil

neil foster