New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Torts
Torts: negligence; mental harm; non-delegable duty; vicarious liability
Mr Wright brought an action in negligence occasioning psychological injury against Optus in respect of an attempt by Mr George to kill Mr Wright by throwing him off the roof of an Optus office building while both were attending a training course on those premises. Mr George and Mr Wright were not Optus employees, but were under Optus’ direction at the time.
The issue on appeal was whether Optus was liable in negligence for Mr Wright’s psychological injury. This raised a question:
- whether Optus owed Mr Wright a duty of care in respect of mental harm;
- whether Optus’ staff owed Mr Wright a duty of care with respect to mental harm; and
- whether Optus was vicariously liable for the actions of its employees.
- Applying s 32 of the Civil Liability Act 2002 (NSW), absent an express finding by the primary judge that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm (Basten and Hoeben JJA, Gleeson JA dissenting).
- It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assault the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff.
Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright  NSWCA 21
Torts: negligence; novel duties of care; defamation
Mr Perera brought three claims against Genworth, a mortgage insurer, arising out of claims made by Genworth concerning Mr Perera’s expertise as a property valuer.
First, Mr Perera brought an action in negligence occasioning economic loss, positing a novel duty of care said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently.
Secondly, Mr Perera brought an action in defamation on the basis of a letter written by Genworth and sent to Genworth’s client.
Thirdly, Mr Perera brought an action in negligence occasioning psychological injury resulting from a senior employee of Genworth threatening to sue Mr Perera personally for an alleged negligent valuation.
The issue on appeal was whether the primary judge erred in summarily dismissing each of Mr Perera’s claims. This raised:
- a question as to the proper approach where novel duties of care cut across or subvert other legal principles; and
- as to the defamation claim, a question whether the relevant imputations were specified and whether they were capable of arising.
- The primary judge did not err in striking out the two claims in negligence. The asserted novel duties of care could not exist coherently with the current law, including torts based on misuse of legal process, the absence of a duty of care owed by one litigant to another and the importance of unfettered access to the courts. As such, findings of fact were unnecessary.
- The defamation proceedings should not have been struck out and should proceed in the District Court.
Perera v Genworth Financial Mortgage Insurance Pty Ltd  NSWCA 19
Torts: negligence; psychiatric harm; employer investigations
Ms Govier was employed by Unitingcare as a disability worker. A co-worker attacked Ms Govier during a cross-over of their shifts at a client’s house. Ms Govier suffered physical and psychiatric injuries as a result of the attack. Ms Govier suffered further psychiatric injuries when given two letters by her employer, the first requesting that Ms Govier attend an interview about the incident and the second containing allegations against Ms Govier and requesting that she show cause why her employment should not be terminated as a result of the incident. Ms Govier claimed damages for negligently inflicted psychiatric injury.
The issue on appeal was whether Unitingcare was liable in negligence for Ms Govier’s psychiatric injuries. This raised a question:
- whether Unitingcare had breached its duty to provide a safe system of work in rostering Ms Govier and the co-worker to meet at the change of shift; and
- whether Unitingcare owed Ms Govier a duty of care in respect of its investigation of Ms Govier’s role in the incident.
- Unitingcare had not breached its duty to Ms Govier to provide a safe system of work by rostering Ms Govier and the co-worker in a way which required them to meet at the change of shift, because the assault was not reasonably foreseeable despite concerns raised by Ms Govier.
- Unitingcare’s letters caused psychiatric injury to Ms Govier. However, Unitingcare did not owe a duty of care to Ms Govier in its investigation of Ms Govier’s conduct in relation to the assault (citing State of NSW v Paige).
NSWCA cases considered include:
Seltsam Pty Ltd v Ghaleb  NSWCA 208
State of New South Wales v Paige (2002) 60 NSWLR 371;  NSWCA 235
High Court cases considered:
Purkess v Crittenden  HCA 34; (1965) 114 CLR 164
Sullivan v Moody  HCA 59; (2001) 207 CLR 562Watts v Rake  HCA 58; (1960) 108 CLR 158
Govier v Unitingcare Community  QCA 12
Torts: negligence; causation
Mr Proudlove suffered catastrophic injuries as a passenger in a vehicle driven by Mr Burridge when it collided with an escaped horse on an unlit road at night. As Mr Burridge approached, another driver stood on the road, some distance in front of the horse, and waved. At the time of the accident, WA did not have a no-fault compensation scheme for motor vehicle accidents. At trial, Mr Proudlove proved breach of duty of care, but failed on causation.
The issue on appeal was whether Mr Burridge was liable in negligence for Mr Proudlove’s injuries. This raised a question whether, if Mr Burridge breached his duty of care to Mr Proudlove, that breach caused Mr Proudlove’s injuries.
- Newnes and Mitchell JJA: on causation, ss 5C and 5D of the Civil Liability Act 2002 (WA) required Mr Proudlove to prove that the collision and Mr Proudlove’s consequent injuries would have been avoided if Mr Burridge had taken reasonable care. Mr Proudlove failed to achieve this on the evidence brought before the trial judge.
- Martin CJ, in dissent: applying March v E & MH Stramare Pty Ltd, as a matter of common sense, failure to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor accidents, and so, in the absence of other evidence, it was reasonable to infer that Mr Burridge’s negligence caused or materially contributed to the vehicle’s collision with the horse and therefore to Mr Proudlove’s injuries.
High Court cases considered include:
March v E & MH Stramare Pty Ltd  HCA 12; (1991) 171 CLR 506
Robinson Helicopter Company Incorporated v McDermott  HCA; (2016) 331 ALR 550 
Proudlove v Burridge  WASCA 6
Torts: negligence; solicitors’ contractual and tortious duties to client
Mr Morris controlled the respondent. He engaged the appellant, which trades as Minter Ellison, to conduct a due diligence on a proposed investment in a building business. While preparing the documents to effect the agreement, Minter Ellison was told by the vendor that the vendor would procure the licence necessary for the company to operate lawfully. On completion day, Minter Ellison discovered that the necessary licence had not been procured, and advised Mr Morris to delay completion. Mr Morris instructed them to proceed. The business never acquired the necessary licence, and failed.
The issue on appeal was whether Minter Ellison was negligent. This raised a question as to:
- the extent of Minter Ellison’s retainer; and
- the interaction between contractual and tortious duties to the client.
- There is no inconsistency between the statement of Deane J in Hawkins v Clayton, to the effect that a duty in tort could require a solicitor to take a positive step beyond the scope of the retainer, and the later decision in Astley v Austrust Ltd, which suggested that solicitor liability remained concurrent in contract and tort. The “penumbral” duty is an aspect of a solicitor’s primary duty to identify the legal implications so that the client can properly frame the scope of the retainer, bring material risks to the client’s attention and advise whether further advice should be sought.
- In this case, Minter Ellison acted in accordance with instructions and was not negligent.
NSWCA cases considered:
Capital Brake Service Pty Limited v Meagher & 8 Ors T/as Sparke Helmore  NSWCA 225
David v David  NSWCA 8; (2009) Aust Torts Reports 91-993
High Court cases considered:
Badenach v Calvert  HCA 18; 90 ALJR 610; 331 ALR 48
AS Bannister & Ors v Sirrom Enterprises Pty Ltd  SASCFC 153
Torts: negligence; liability of occupier; liability of landscape architect; patron injured as stepped into garden bed in Club car park; true depth of garden bed obscured by vegetation; primary judge found Club liable but architect not liable; both Club and architect liable for patron’s injury; no appellate interference with assessment of contributory negligence; statutory contribution between Club and architect 75% : 25%
Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner  NSWCA 369
Torts: negligence; personal injuries; operator of forklift at depot negligently failed to secure a stillage (partially enclosed cage) to the raised tines of the forklift; stillage slipped from the tines in the course of unloading the stillage to a container; worker unloading sacks injured when struck by the slipping tillage; worker placed foot on mezzanine floor of trailer; whether worker’s injuries occurred “during… the driving of a vehicle” within the meaning of s 3A(1)(a) of the Motor Accidents Compensation Act 1999 (NSW); whether the worker’s injuries were sustained as a consequence of driving the forklift; whether displacement of the stillage causally related to the driving of the forklift
Toll Pty Ltd v Harradine  NSWCA 374
Torts: negligence; psychological injury; police officer exposed to traumatic events; officer ultimately diagnosed with PTSD and discharged; primary judge found negligence in failing earlier to diagnose and treat officer’s psychological injury; challenge to findings of duty, breach and causation; nature of duty owed; effect of statutes upon scope or content of duty; requirement of prospective formulation; need to identify a system or general instruction which would probably have prevented psychological injury
State of New South Wales v Briggs  NSWCA 344
Torts: negligence; workplace injury; slip and fall; tiled walkway left wet and unguarded following cleaning; respondent employer paid injured employee compensation and successfully claimed indemnity from appellant cleaning company appellant in court below; Workers Compensation Act 1987 (NSW) s 151Z(1)(d); challenge to factual finding by primary judge; whether employee acting reasonably should have been aware the floor was wet
Kellys Property Management Services Pty Ltd v Anjoshco Pty Ltd trading as McDonalds BP Chinderah  NSWCA 341
Torts: negligence; contributory negligence; Motor Accidents Compensation Act 1999 (NSW) s 138; whether primary judge erred in finding contributory negligence by respondent and assessing reduction in damages at 50%; finding that respondent’s failure to look caused accident; relatively quiet street; little otherwise known of circumstances of accident; whether assessment manifestly inadequate or excessive
Nominal Defendant v Dowedeit  NSWCA 332