Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capar v SPG Investments Pty Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 Hearing dates: 9 and 10 June 2020 Date of orders: 22 December 2020 Decision date: 22 December 2020 Before: Basten JA at [1]; McCallum JA at [230]; Emmett AJA at [231] Decision: (1) Allow the appeal and set aside orders (1)-(4) made in the Common Law Division on 13 May 2019. (2) Declare that the first, second and third respondents are liable in damages to the appellant. (3) Direct that the parties confer to determine the extent to which agreement can be reached as to: (a) the quantum of damages payable by each respondent; (b) the apportionment of liability between the respondents; and (c) final orders to dispose of the proceedings. (4) Direct that the parties advise the Registrar by Friday, 29 January 2021 as to what issues, if any, are unresolved and what further directions are required for the resolution of any such issues. Catchwords: APPEALS – orders on appeal – remittal – errors in trial judge's conclusion on liability and contingent assessment of damages – case attended by significant and operative delays – conduct at issue occurred over 10 years ago – further trial pointless – Court of Appeal capable of resolving contested issues of fact PRACTICE AND PROCEDURE – expert evidence – joint report of experts – admission and tender versus weight – Uniform Civil Procedure Rules (NSW), r 31.26(3) TORTS – negligence – breach of duty – shopping centre – defect in perimeter security – gap above roller door – exposed entrance – previous break-in via the gap – awareness by owner of premises, security company, and employer of security guard of defect – no steps taken to rectify defect – Civil Liability Act 2002 (NSW), s 5B TORTS – negligence – causation – intruder enters shopping centre via gap – requirement to address gap – Civil Liability Act 2002 (NSW), s 5D TORTS – general principles – contributory negligence – security guard followed steps and was praised by management for conduct in securing premises against axe-wielding intruder which led to psychiatric injury – Civil Liability Act 2002 (NSW), ss 5R, 5S TORTS – negligence – damages – psychiatric injury – normal fortitude – whether person of normal fortitude might in the circumstances of the case suffer psychiatric harm – Civil Liability Act 2002 (NSW), s 32 TORTS – negligence – duty of care – security guard – duty of occupier of commercial shopping premises, security company, and company engaged by security company that employed the security guard TORTS – negligence – voluntary assumption of risk – security guard suffered psychiatric injury due to the approach of an axe-wielding intruder who approached him and threatened him with death – whether this risk was voluntarily assumed Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5D, 5F, 5G, 5H, 5I, 5S, 13, 14, 16, 30, 31, 32; Pt 1A, Div 4 Civil Procedure Act 2005 (NSW), ss 60, 61; Pt 6 Evidence Act 1995 (NSW). ss 79, 135 Interpretation Act 1987 (NSW), s 35 Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Workers Compensation Act 1987 (NSW), ss 151N, 151O, 151Z; Pt 5, Div 3 Wrongs Act 1936 (SA), s 27a Uniform Civil Procedure Rules 2005 (NSW), r 31.26 Cases Cited: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874 Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12 Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455 Haynes v Harwood [1935] 1 KB 146 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Ogwo v Taylor [1988] AC 431 Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; [1985] HCA 3 Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39 Smith v Baker [1891] AC 325 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Tiller v Atlantic Coast Line Railroad Co 318 US 54, 69 (1942) Westpac Banking Corporation v Jamieson [2016] 1 QdR 495; [2015] QCA 50 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 X v Sydney Children's Hospitals Speciality Network (No 5) [2011] NSWSC 1351 Texts Cited: Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed) Review of the Law of Negligence – Final Report Commonwealth of Australia, 2002 C Sappideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011) Category: Principal judgment Parties: Gengiz Capar (Appellant) SPG Investments Pty Ltd t/as Lidcombe Power Centre (First Respondent) Business Protection Group Pty Ltd (Second Respondent) The Workers Compensation Nominal Insurer (Third Respondent) Representation: Counsel: Mr D Campbell SC / Mr E Young (Appellant) Mr DD Feller SC (First Respondent) Mr R Cheney SC (Second Respondent) Mr S Flett/Mr S Blount (Third Respondent)