The Case

Mr Wright and Mr George attended an Optus call centre training session in 2001. During the session, Mr George went into a trance-like state and was observed by Optus employees to be behaving strangely. He asked to speak to Mr Wright, who he did not know. When Mr Wright went to speak to Mr George, Mr George tried to throw Mr Wright over the balcony railing. An Optus employee intervened, saving Mr Wright’s life. However, Mr Wright suffered a psychological injury due to the incident.

Mr Wright sued Optus, claiming that Optus had failed to take reasonable care to protect him from the mental harm he suffered. At trial, Mr Wright was successful and was awarded $3.9 million. Optus appealed the decision to the NSW Court of Appeal.

Verdict

The Court of Appeal reversed the decision, indicating that:

• while Optus owed Mr Wright a duty of care, that duty did not extend to the circumstances of this case as it was not reasonably foreseeable that Mr George would attempt to kill Mr Wright and in such a way that this would cause Mr Wright to suffer a psychiatric illness;
• the knowledge that the Optus employees had obtained from observing Mr George’s behaviour could not be attributed to Optus itself and therefore could not extend the scope of the duty of care Optus owed to Mr Wright in the circumstances of this case; and
• given the Optus employees had not breached their duty of care to Mr Wright, Optus could not be vicariously liable for the employees’ conduct.

Lessons for you

You have a common law duty of care to protect people who attend the workplace from suffering reasonably foreseeable personal injury. This is in addition to an employer’s statutory duties under work health and safety legislation.

As such, you must adopt policies and procedures that a reasonable person would adopt in the circumstances to guard against such risks and fulfil the common law duty. This includes policies and procedures to manage reasonably foreseeable risks of criminal activities and other emergency situations.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.