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) Solicitors: Premier Lawyers (Appellant) Vardanega Roberts (First Respondent) Clyde & Co (Second Respondent) Sparke Helmore (Third Respondent) File Number(s): 2019/159993 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 507 Date of Decision: 13 May 2019 Before: Bellew J File Number(s): 2013/78535 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] headnote [This headnote is not to be read as part of the judgment] In March 2010, the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of the morning of 17 March 2010, an intruder entered the premises by climbing through a gap above an external roller door and up a set of fire stairs. The appellant, who was seated in his office, detected the presence of the intruder near the premises from external CCTV cameras, but lost sight of him, as the CCTV did not extend to an area where other intruders had entered a month earlier. The appellant left the control room and went to investigate. Upon seeing the appellant, the intruder, who was wielding an axe, began to move towards the appellant and threatened to kill him. Shaken, the appellant escaped to the safety of the control room and called the police, who arrived shortly thereafter. They arrested the intruder, who had himself fled after being accosted by the appellant, outside the Centre. The appellant suffered psychiatric harm as a result of the incident. The appellant brought proceedings in negligence against the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG Investments to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant's employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security), with whom Business Protection Group had contracted. The claims against the owner and security contractor turned on principles governed by the Civil Liability Act 2002 (NSW). The claim against the employer was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW). After a 12-day hearing in the Common Law Division, all the appellant's claims were dismissed. The trial judge ultimately concluded that, by leaving the safety of the control room and accosting the intruder, the plaintiff was the "author of his own downfall". The trial judge contingently assessed damages. In the Court of Appeal, the following issues were raised: (1) admissibility of a joint experts' report on breach of duty and the weight given to the evidence of the appellant's expert; (2) the defence of voluntary assumption of risk; (3) scope of the duty of care owed by each defendant; (4) breach of duty; (5) causation; and (6) assessment of damages. The Court (Basten JA, McCallum JA agreeing, Emmett AJA dissenting) allowed the appeal and held: On issue 1: Admission of expert evidence 1. The reference to the "tender" of a joint expert report under UCPR 31.26(3) does not dispense with the requirements for admission of evidence: [135]. The experts' report was undoubtedly relevant and should have been admitted at trial and should now be admitted on appeal: [137]. In relation to Mr Flanders' evidence, the judge was not entitled to reject the evidence in relation to structural defects in the premises but was entitled to reject other aspects not dependent on the witness' area of expertise: [127]. X v Sydney Children's Hospitals Speciality Network (No 5) [2011] NSWSC 1351, discussed. On issue 2: Voluntary assumption of risk 2. The doctrine of voluntary assumption of risk by people putting themselves into harm's way to rescue others, or during emergencies, did not support the finding that the appellant was solely responsible for his own misfortune: [61]. McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073; Haynes v Harwood [1935] 1 KB 146; Rootes v Shelton (1972) 128 CLR 99; [1973] HCA 12; Caterson v Commissioner for Railways (1972) 128 CLR 99; [1973] HCA 12; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22; Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Rep 81-874, applied. 3. The appellant's conduct followed the broad description of steps expected to be taken in the situation: [85], and the instructions in the manual provided to him did not contemplate that he would perform an entirely passive role: [87]. The appellant acted without criticism from management: [88]-[89]. Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, applied. On issue 3: Duty of care 4. A duty of care not to cause mental harm is owed only to persons of normal fortitude who might suffer a psychiatric illness in the circumstances of the case: Civil Liability Act 2002 (NSW), s 32. In this case, consistent with the concessions made by the respondents, the evidence supported the conclusion that s 32 was satisfied: [97], [98]. Mount Isa Mines Ltd v Pusey [1967] 1 WLR 912, applied. 5. The trial judge was correct in finding that each respondent owed the appellant a duty of care: [91]. In particular: (i) SPG Investments as owner of the premises had responsibility for physical security ([107]) and had knowledge of the roller door gap vulnerability: [145], [148]. (ii) Business Protection, as subcontractor of SPG Investments, took responsibility for training security staff and defining the operations to be carried out, upon which a duty to security staff was founded: [115]-[116]. (iii) The employer's duty to the appellant was not in dispute below or on appeal: [117]. On issue 4: Breach of duty (Emmett AJA dissenting) 6. Each respondent breached its duty to the appellant. There was expert evidence that there were failures in securing the physical security of the premises: [129]. SPG Investments knew, directly or through its agent, of the weakness in physical security prior to 17 March 2010, and that the absence of a physical barrier preventing entry over the roller door was capable of ready rectification, which it took no steps to rectify: [145], [148]. 7. Business Protection failed, following the February break in, to take reasonable steps to see that the premises were secured. There was no basis on which to reach a different conclusion in relation to the appellant's employer, Dynamite Security: [154], [155]-[156]. On issue 5: Causation 8. If steps had been taken to prevent entrance to the Centre through the gap above the roller door, the confrontation would not have occurred, and the injury would not have been suffered. Causation was established: [157]. On issue 6: Damages 9. The Court is able to review and correct the trial judge's contingent assessment of damages: [186]-[189]. Further submissions are required regarding apportionment and the appropriate calculation of quantum: [223]-[226]. Further observations 10. Section 5I, dealing with inherent risks, had no application in this case: [172]-[174]. 11. There was no basis to support a finding of contributory negligence, in circumstances where the appellant acted in accordance with what was expected of him and his conduct did not demonstrate a failure to take reasonable care: [175]-[176]. 12. The matter should be finally determined in the Court of the Appeal and not remitted. There was significant delay in resolving this matter: [94], [178]; the nature of the errors identified did not require a retrial and the Court was itself capable of assessing relief, and Part 6 of the Civil Procedure Act 2005 (NSW) mandates the Court to resolve the case finally in such circumstances: [184]. By Emmett AJA, dissenting on the issue of breach: 13. The duty of an occupier of a building is to take reasonable care for the safety of persons in the building: [248]. The content of that duty in this case did not extend to protecting a security guard from the risk of an intruder: [248]-[255]. Judgment 1. BASTEN JA: In March 2010 the appellant, Gengiz Capar, was employed as a security guard at the Lidcombe Power Centre on Parramatta Road, Lidcombe. In the early hours of 17 March 2010 an intruder entered the premises; he was accosted by the appellant, whom the intruder, then wielding an axe, threatened to kill. The appellant escaped but suffered mental harm as a result of the encounter. 2. The appellant (as plaintiff) brought claims in negligence in the Common Law Division against (i) the owner of the premises, SPG Investments Pty Ltd (SPG Investments), (ii) the security business contracted by SPG to provide security services at the Centre, Business Protection Group Pty Ltd (Business Protection), and (iii) the appellant's employer, Dynamite Security Protection Services Pty Ltd (Dynamite Security). (Dynamite Security having been deregistered by the time of the trial, its defence was run by the Workers Compensation Nominal Insurer, which was also its insurer for personal injury damages claims.) 3. The proceedings were heard over 12 days in September and December 2017, final submissions being filed in February 2018. On 13 May 2019 the trial judge (Bellew J) dismissed the proceedings against each defendant. [1] The present appeal is brought from the judgments and orders in the Common Law Division. Actions against the owner (SPG investments) and the security contractor (Business Protection) turned on general law principles as modified by the Civil Liability Act 2002 (NSW). As the judge correctly noted, the Civil Liability Act did not apply with respect to the claim against the employer, which was governed by Pt 5, Div 3 of the Workers Compensation Act 1987 (NSW), and was thus excluded from the operation of the Civil Liability Act by s 3B(1)(f) of the latter Act. 4. The Civil Liability Act does not prescribe the circumstances under which a duty of care arises; but it does impose constraints on the existence of a duty of care in particular circumstances. The appellant suffered no physical injury, but only mental harm. That factor engaged the constraint on the existence of a duty of care imposed by s 32 of the Civil Liability Act, which provides: 32 Mental harm—duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless 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. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following— (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. … (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 1. The judge addressed the terms of s 32, concluding that neither SPG Investments nor Business Protection owed the appellant a duty of care, as he did not pass through the gateway of s 32(1). That finding was challenged on the appeal. 2. There are other provisions in the Act which preclude a finding of liability in circumstances where they are engaged. Relevantly for present purposes, the respondents invoked s 5I, which provides: 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. 1. The trial judge accepted that risk of being attacked by an armed intruder was an "inherent risk" for the purposes of s 5I, which materialised in the harm suffered by the appellant. Accordingly, neither SPG Investments nor Business Protection was liable in negligence for that harm. That finding was challenged. 2. The respondents (other than the employer) also relied in the course of the trial on the provisions of s 5F and s 5G of the Civil Liability Act. Section 5F defines the meaning of the term "obvious risk" for the purposes of Pt 1A, Div 4 of the Civil Liability Act. Section 5G provides that in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. The trial judge accepted that the risk in question was an obvious risk, but it is not clear how that affected the findings of the case. The judge also found that the appellant was actually aware of the risk. That finding left no room for a presumption. (There was no complaint of failure to warn under s 5H.) 3. The judge also considered whether the plaintiff had established a duty of care owed to him by each respondent, in accordance with general law principles. It appears that he held that only Dynamite Security owed a duty with relevant content. [2] That finding was relevant to all three respondents and was challenged. The incident 1. The appellant was working as a security guard at the Lidcombe Power Centre on the night of 16/17 March 2010 when, at about 1.15am he confronted an intruder. The intruder was carrying an axe and threatened to kill the appellant. The appellant retreated to his office in the building, severely shaken. From the safety of the office he called police. The basic elements of the incident are not in doubt. Nor was there any doubt that the appellant suffered a psychological injury as a result of the encounter. There was, however, a dispute as to the extent of that injury and its causal relationship with the incident. In 1994 the appellant's father had murdered his mother; three years later his father died in gaol. There is no doubt that these events had serious consequences for the appellant's mental health, albeit some 15 years before the events of March 2010. There was an issue as to the extent to which they continued to affect him in March 2010. 2. In order to understand the circumstances of the incident, it is convenient to have regard to plans of the ground floor and first floor of the premises, which appear at the end of the judgment. 3. The trial judge accepted the plaintiff's description of the incident from his first evidentiary statement: [3] "[86] In the first of his evidentiary statements the plaintiff described the subject incident in the following terms: 21. On 17th March 2010 I was working the 10pm to 6am security shift at Lidcombe Power Centre. I was in the office having something to eat on my break when I noticed on the security camera, a man standing outside the Anaconda store outside the Power Centre. He had a big duffel bag and a cap pulled down so no one could see his face. 22. I noticed he ran to the roller shutter (where the previous break in happened a few months prior) which is out of sight of the cameras. 23. I put down my food and knew that something was going on. I grabbed the keys and went to the top level of the shopping centre and waited near where I thought he would come out. I heard footsteps coming up and they were getting louder and my heart was racing and I was getting very nervous. 24. The man then appeared and I yelled out 'Security', before the man dropped the bag and said 'I am going to kill you', and he had a huge fireman's axe and started chasing me. 25. I ran as fast as I could back to the office and was shaking but managed to open the door and lock myself in there. I called the police and thought that I was going to faint and I could hardly talk. The woman on the phone was trying to calm me down. I managed to tell them about the break in that was happening. 26. The police then called back about ten minutes later to say that they had caught the man and asked if I could come up to the level they were on to give a statement. 27. The next day I called my supervisor and said that I didn't want to do night shift. He said that I had to as no one else could do it." 1. The incident report prepared contemporaneously by the appellant read as follows: "Nature of incident: Trespassing [box ticked] Report no: LPK170310-1 Date: 17.3.10 Time of Incident: 01:15 Location of Incident: Level 1 Dicksmith 92 Parramatta Rd Lidcombe Power Centre Complainant: Gengiz Capar … Description of Incident: AT APPROX 01:15 while I was in office on my mealbreak [I] noticed on camera 16 a male person walk past anaconda very fast then he walked over near pet's direct roller shutter so I went up esculator's to have a look as I stood up over esculator's for 30 second's I saw a male person near dick smith with a big axe so I called out hey security then he raised the axe and said I am going to fucken kill you come here and proceded to come towards me so I ran down esculator's to office and rang police and bill and police rang me back and said they caught the offender and they said police will be onsite soon and they came at 0150 I gave police statement and they left site at 0220am." Reasoning of trial judge 1. By reference to various instruction manuals relating to the functions and duties of a security guard, to which reference will be made shortly, the trial judge came to the conclusion that, to the extent the appellant suffered injury, it was, in effect, self-inflicted. "[109] 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." 1. The reference in the appellant's statement to the earlier break-in (which occurred on 10 February 2010) will be considered further below. It was relevant in so far as it revealed a weakness in the physical security of the building. There was an important issue in the case as to which of the respondents knew of the break in prior to the March incident. 2. Immediately following the finding set out above, the trial judge set out two emails which had been sent the following morning. The first was from Mr Stanwix, a senior administrator with Business Protection. The email went to various persons at SPG Investments. It is convenient to set out the whole of the emails as they appeared in the judgment, together with the judge's comments. "[110] On 17 March 2010 at 8:10am Mr Stanwix sent an email to a number of people (including Georgia Hall) in the following terms: Last night during lockdown 2 offenders scaled the shutters and gained access to the centre. The security guard saw this on camera and immediately attended. The offenders were trying to break into Dick Smith and Spotlight. The guard confronted them and they produced (and threatened him) with an axe. They ran at the guard with the axe wielding and he sensibly took flight! The guard made it back to the security office and called Police. The offenders fled but the guard followed them at a safe distance. He communicated with Police and they apprehended the offenders! As all the finer details come to hand I will advise so that you can communicate to Dick Smith if you wish. A great result even though it would have been a terrifying experience for the guard! I commend his bravery! Regards, Richard. [111] 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. [112] On 17 March 2010 [Allison] Hall replied to the email of Mr Stanwix in the following terms: Good Morning All, I have spoken to Security at Lidcombe regarding the incident last night and it appears we are vulnerable on Level 1 with a small gap between the roller shutter and the balcony. I will start looking at our options as a matter of urgency as this is the second similar incident within a month and we do not want word to get out we are an easy target. In addition I was contacted by Security at 8.52pm last night regarding the auto doors on Level 1 that would not close. Dorma attended and they were fixed by the shift changeover at 10pm, this is probably not related but worth noting. Thanks again to Jengas (sic) who handled the situation well with a good outcome. Kind regards, [Allison] Hall Asset Manager SPG Investments [113] 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." 1. As will be noted below, there are inferences which may be drawn as to how those responsible for the Centre viewed the appellant's conduct; there was no condemnation of him for wilful disregard of orders, nor dereliction of duty. 2. The trial judge then turned to the report of an expert on security measures, Mr Terrence Flanders, dated 31 July 2013. The judge's view of Mr Flanders' evidence was expressed in the following succinct conclusion: "[128] For these reasons, I place no weight upon his report, his oral evidence, or his opinions." 1. The manner in which the judge dealt with Mr Flanders' evidence, together with his refusal to admit a joint report of three experts, including Mr Flanders, was said by the appellant to infect the findings as to breach of duty. It will be necessary to consider that material below. 2. The judge then turned his attention to the terms of s 32 of the Civil Liability Act, set out at [4] above. Noting that it qualified what might otherwise give rise to a duty of care owed by a defendant to a plaintiff, he addressed its operation prior to considering whether there was a duty of care under the general law. In doing so, he correctly focused upon the operation of the Act with respect to SPG Investments and Business Protection. Again placing weight upon the conduct of the appellant, which he said "completely defied common sense, and had no legitimate purpose", [4] the judge concluded 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." [5] He concluded that neither SPG Investments nor Business Protection owed the plaintiff a duty of care. [6] 3. For reasons which will be further considered below, the reasoning with respect to s 32 of the Civil Liability Act effectively determined the applicant's claim on the basis that there was no general law duty of care. However, it was only following that determination that the judge moved to consider common law duties of care as a separate topic, setting out the various submissions with respect to the roles of SPG Investments and Business Protection. With respect to SPG Investments, the judge reached the following conclusion: "[182] 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." 1. While SPG Investments was an occupier of the premises, and owed some duty of care to the appellant as an entrant on the premises, Business Protection was in a different position, having no physical presence on the premises. The judge made the following findings with respect to Business Protection: "[189] Firstly, there is unchallenged evidence that the plaintiff wore a uniform which bore the BPG logo. [190] 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. [191] 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. [192] 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. [193] 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." 1. That left the further question identified by the trial judge as "whether not that duty of care extended to a duty to protect the plaintiff from the criminal behaviour of an intruder." [7] The judge concluded that question in favour of the plaintiff. [8] 2. These conclusions are not easily reconciled with the conclusion at [146] that it was "not reasonably foreseeable to either SPG or BPG that the intruder might threaten the plaintiff in the manner in which he did." 3. The judge then had regard to the question of breach. He identified the proper formulation of the risk faced by the plaintiff as "the risk that he might sustain injury as a consequence of an encounter with an intruder." [9] He concluded that that risk was both foreseeable and not insignificant. [10] (That finding is not easy to reconcile with the manner in which the judge concluded there was no duty owed under s 32 of the Civil Liability Act.) The judge identified the "real question" as "whether a reasonable person in the position of SPG and or BPG would have taken precautions." [11] The judge answered that question with respect to SPG Investments in the following terms: "[210] 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 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." 1. With respect to Business Protection, he dismissed the claim that it had not adequately trained the plaintiff, [12] but noted that, through Mr Stanwix, Business Protection was aware of the gap over the roller. However, he was satisfied that Mr Stanwix acted reasonably in the circumstances, given that Business Protection was not an occupier of the premises, with the result that there was no breach of duty on the part of Business Protection. [13] 2. The judge then dealt with the respondents' reliance upon what was described as "assumption of risk", where the risk was an "obvious risk" as defined in s 5F of the Civil Liability Act. Section 5G presumes that the plaintiff was aware of an obvious risk. With respect to those provisions the judge concluded: "[226] 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. [227] 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. [228] 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." 1. It is not entirely clear whether that reasoning had any consequence for the outcome of the case, even on a contingent basis. On the other hand, such a finding might perhaps have supported the conclusions reached when considering the operation of s 32 of the Civil Liability Act, set out above. 2. Finally, with respect to SPG Investments and Business Protection, the judge considered the operation of s 5I of the Civil Liability Act, which provides that there is no liability in negligence for harm resulting from "the materialisation of an inherent risk": s 5I(1). An inherent risk is something that "cannot" be avoided by the exercise of reasonable care and skill. [14] Absent a duty to warn, it is not clear that a finding of the materialisation of inherent risk does more than negate a finding of breach of duty. The judge's conclusion with respect to the operation of s 5I was as follows: "[236] In Coco-Cola Amatil (NSW) Pty Limited v Pareezer [15] Young CJ in Eq … 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. [237] It follows in my view that s 5I of the CLA applies, and that neither SPG nor BPG [is] liable to the plaintiff." [16] 1. The judge dealt with the liability of the employer's insurer briefly. [17] The reasoning, accepting a duty of care, followed the reasoning in respect of Business Protection, as did the finding that the employer did not breach the duty owed. [18] 2. Finally, the judge considered the question of damages, which will be addressed in more detail below. Grounds of appeal 1. The issues in the amended notice of appeal, as they arose chronologically at trial, may be summarised as follows: 1. admissibility of joint experts' report on breach of duty (grounds 13 and 14); and placing no weight upon the evidence of the appellant's expert (Mr Flanders) – ground 15; 2. findings as to duty of care: 1. as to SPG Investments – grounds 2, 3 and 4; 2. as to Business Protection – grounds 2, 3 and 5; 1. breach of duty: 1. SPG Investments – grounds 6, 7 and 9; 2. Business Protection – grounds 6, 8 and 9; 3. the employer – ground 10; 1. damages – ground 11; 2. delay – grounds 12 and 16. 1. Consideration of the last matter, namely an allegation that the findings of fact were "infected by operative delay", was primarily relevant to questions of relief and may be dealt with in that context. 2. Although it would be logical to consider questions of admissibility first, both the experts' joint report and Mr Flanders' separate evidence were relevant primarily to breach of duty and will be addressed in that context. 3. Before dealing with issues relevant to a claim in negligence, it is convenient to note specifically the terms of ground 3: "3. The primary judge erred in fact and law when making findings to the effect that: (a) the appellant was solely responsible for the occasioning of this injury; and (b) the appellant knowingly breached his instructions when approaching the area where an intruder had unlawfully entered onto the premises where he was working; and (c) the appellant had no legitimate purpose for acting as he did." 1. The challenged findings occur in a number of places throughout the judgment, including [109], set out at [14] above. Before addressing the appellant's complaints with respect to these findings, it is necessary to consider the legal significance of the findings. Generally speaking, the conduct of the plaintiff in circumstances giving rise to injury will not be relevant to an assessment of whether the defendant owed the plaintiff a duty of care, nor as to whether the defendant was in breach of any such duty. It is possible that the plaintiff's conduct may have broken a causal link between breach of duty and injury, or, more usually, the plaintiff's conduct may demonstrate contributory negligence. 2. The trial judge did not reach either of these issues, although both arose on the pleadings. There was no discussion of causation, nor reference to s 5D, the relevant provision of the Civil Liability Act, in the judgment. That is not to say that the judge did not deal with any defences: in fact, he did address concepts identified as "assumption of risk" and "obvious risk". The latter term (obvious risk) appears in s 5F and 5G of the Civil Liability Act; the term "assumption of risk" does not, although it does appear in the heading to the Division in which those provisions appear. While the judge held that the risk which materialised was an obvious risk, of which the plaintiff was presumed to have been aware, [19] the relationship of that finding to a question of liability of any of the respondents was unclear. 3. It is necessary to address these issues: the first respondent, SPG Investments, raised the failure of the appellant to establish causation under s 5D of the Civil Liability Act, and a defence of "voluntary assumption of risk" in a notice of contention. The second respondent, Business Protection, raised the same issues in its notice of contention. The third respondent, Dynamite Security, raised a defence of voluntary assumption of risk pursuant to s 151O of the Workers Compensation Act 1987 (NSW), and contributory negligence, pursuant to s 151N of that Act. There is some irony in the employer's position, as both ss 151N and 151O limit the availability of such defences. However, more generally, there is a question as to whether "voluntary assumption of risk" provides a defence, or simply a denial of liability. There is a further question as to whether, and if so how, the principle operates in the present circumstances. It is convenient to address these legal issues first, before considering in their logical sequence, (i) duty of care; (ii) breach; (iii) causation; and (iv) damages. Voluntary assumption of risk (a) legal principles 1. For reasons which will be discussed below, the Civil Liability Act neither abolished nor codified common law principles with respect to assumption of risk; rather, s 5F and s 5G appear to have made quite specific changes to one aspect of the doctrine, namely awareness of risk. It is therefore appropriate to commence by identifying the nature of the doctrine under the general law. 2. As explained by Professors Peel and Goudkamp in Winfield & Jolowicz, Tort (19th ed), "[i]f the claimant voluntarily assumes the risk of the defendant's negligence he cannot recover: volenti non fit injuria." [20] However, as the authors further note, the basis on which the doctrine prevents liability has not been satisfactorily established. They continue: "Is it a denial or is it a defence? If it is a denial, which element of the claimant's [cause] of action does it negate? … It is suggested that the better view is that the plea of 'voluntary assumption of risk' is a denial. It may deny the existence of a duty of care. If, for example, C undertakes to repair the roof of D's house and while doing so C falls off and injures himself C cannot recover. C's failure to recover might be dressed up in the language of voluntary assumption of risk but it is fairly clear that the reason why C cannot recover is not that C consented to the risk of injury but that D did not in the first place owe C any duty to instruct C on how to go safely about his task. The plea 'voluntary assumption of risk' may also target the breach element of the action in negligence. Suppose that a spectator at a cricket match is struck and injured by a ball which the batsman, having little control of precisely where it will land, has hit as hard as he can. Most lawyers would agree that the claimant has no claim against the batsman and some might say that this was because the spectator had agreed to assume the risks of cricket. But the ultimate reason why there is no liability in this case is because there is no negligence. The batsman has done nothing unreasonable." 1. The same element of duality had been noted in US cases. In Tiller v Atlantic Coast Line Railroad Co, [21] decided after Congress had legislated to abolish the doctrine, Frankfurter J observed: "The phrase 'assumption of risk' is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas. Thus, in the setting of one set of circumstances, 'assumption of risk' has been used as a shorthand way of saying that although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with 'notice' of such negligence, 'assumed the risk.' In such situations 'assumption of risk' is a defense which enables a negligent employer to defeat recovery against him. In the setting of a totally different set of circumstances, 'assumption of risk' has a totally different meaning. … Here the phrase 'assumption of risk' is used simply to convey the idea that the employer was not at fault and therefore not liable." 1. For the purposes of the Civil Liability Act, the elements of the doctrine are important. Peel and Goudkamp explain: [22] "The doctrine of voluntary assumption of risk has two elements. These elements are as follows: (1) the claimant must have knowledge of the risk of injury; and (2) the claimant voluntarily agreed to incur the risk of injury." 1. The Civil Liability Act seeks to vary the general law principles regarding the first element by creating a presumption that a person who suffers harm was aware of the risk, if it were an "obvious risk", as defined in s 5F: the presumption appears in s 5G. According to the Review of the Law of Negligence – Final Report, [23] there was no intention to interfere with what constituted a voluntary assumption, on the basis that that element "is ultimately an evaluative question about which it would be difficult to make general provision." [24] 2. This approach creates a significant difficulty: how does one assess voluntariness in respect of a risk of which the plaintiff is not actually aware, but only constructively aware in the sense that a reasonable person in his or her position would be so aware? 3. There is a further difficulty. As Peel and Goudkamp correctly note, there is an overlap between the doctrine of voluntary assumption of risk and contributory negligence. [25] A denial of liability, however, precludes the apportionment of loss which results from the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ("the 1965 Act"), where both parties bear responsibility. Section 9 of the 1965 Act provided that where the plaintiff "suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person … a claim in respect to the damage is not defeated by reason of the contributory negligence … and damages … are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." 4. In keeping with the recommendations of the Final Report, the operation of the 1965 Act has been varied by s 5S of the Civil Liability Act, which allows for a reduction of 100%, so that a claim for damages may again in "very rare" cases, [26] be defeated by contributory negligence. The question is whether there may be cases where the judge would not think it just and equitable to assign all responsibility for loss to the claimant, but yet deny liability on the basis that there had been a voluntary assumption of risk. 5. In recommending a provision in the form of s 5S, the Final Report stated: "[8.25] Our view is that while the cases in which it will be appropriate to reduce the damages payable to a contributorily negligent plaintiff by more than 90 per cent will be very rare, there may be cases in which such an outcome would be appropriate in terms of the statutory instruction to reduce the damages to such an extent as the court considers 'just and equitable'. The sort of case we have in mind is where the risk created by the defendant is patently obvious and could have been avoided by the exercise of reasonable care on the part of the plaintiff." 1. This was not the approach the Final Report adopted with respect to assumption of risk; rather, the relevant discussion commenced with the following propositions: "[8.23] Voluntary assumption of risk is a complete defence in the sense that it provides the basis for denying the plaintiff any damages at all. A person will be held to have voluntarily assumed a risk only if they were actually aware of the precise risk in question and freely accepted that risk. Since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct. This is because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence. Courts prefer the defence of contributory negligence because it enables them to apportion damages between the parties, thus allowing the plaintiff to recover something, even in cases where the plaintiff bears a very significant share of responsibility for the harm suffered." 1. The Final Report did not infer that there was any possible inconsistency between the apportionment of liability under the 1965 Act and the assumption of risk doctrine. Rather, it attributed the decline of the latter to "techniques" used by the courts. The reasoning was as follows: "[8.28] … Three techniques have been used to this end: first, courts are very unwilling to hold that the plaintiff actually knew of the risk. In order to establish the defence of assumption of risk, it is not enough that the plaintiff ought to have known of the risk. The plaintiff must actually have been aware of the risk. Secondly, courts are unwilling to hold that the plaintiff freely and voluntarily accepted the risk. This is the main reason why the defence has long been effectively unavailable in relation to work risks. [27] Because most decisions to take risks are made subject to some external pressure or influence, it is usually possible to attribute to such pressure the effect of rendering the decision non-voluntary. Thirdly, in this context, courts tend to define risks narrowly and at a relatively high level of detail. The more narrowly a risk is defined, the less likely it is that a person will have been aware of it." 1. The recommendations, now found in s 5F and s 5G, sought to (i) reverse the burden of proof where the risk was "obvious"; (ii) allow for constructive knowledge of "obvious" risks, and (iii) define the risk of which the person was aware without reference to precise detail. That left untouched the second and supposedly most significant reason why the defence is effectively unavailable, namely in its operation as to workplace risks. 2. An obvious difficulty arising from this approach is that in situations such as the present, where the risk arose in the course of employment, partly as a risk for which the employer was responsible, but also as a risk for which others were responsible, the continuing inference is that, in accordance with general law principles regarding defendants other than the employer (whose liability is governed by s 151O of the Workers Compensation Act), it is unlikely that the doctrine of assumption of risk will operate. 3. It may also be noted that the Final Report's recommendation 32 with respect to assumption of risk commenced with the chapeau: "For the purposes of the defence of assumption of risk:" followed by the three proposed amendments. In the Civil Liability Act, this language does not appear in any provision. Part 1A, Div 4 is headed "Assumption of risk", but that language is otherwise absent from the operative provisions. The heading to the Division is, according to general principles, part of the Act, [28] but it is not clear what role it plays. Section 5F does no more than define the concept of "obvious risk". Section 5G(1) provides for the presumption of awareness, absent proof to the contrary on the part of the claimant; that principle is said to apply "[i]n proceedings relating to liability for negligence", terminology which is indeterminate as to the way in which the provision will operate, but appears to be inconsistent with the absence of a duty of care. 1. English case law identifies two respects in which the courts have rejected the doctrine of assumption of risk as a basis for denying liability in circumstances similar to the present. First, there are cases involving systems of work. Thus, the mere fact that the claimant goes to work every day knowing that the workplace is not reasonably safe does not establish that he or she consents to working in conditions which are not reasonably safe. [29] Secondly, there are cases involving emergencies. In Haynes v Harwood [30] the defendant negligently left his horses unattended in the street and a boy threw a stone at the horses, causing them to bolt. The plaintiff, a police constable who sought to bring the horses under control and was injured in so doing, was nevertheless able to recover. Clearly the plaintiff acted in urgent circumstances in a way which was consistent with his function as a police officer. The defendant's claim that he willingly undertook the risk which materialised was rejected. The same approach has been extended so that police officers who suffered psychiatric injury as a result of work undertaken helping out in the aftermath of the Hillsborough soccer match tragedy were also able to recover. [31] Similar principles have applied in cases involving rescuers, including both professional fire fighters and members of the public. [32] 2. These principles have been applied in Australian cases. In Rootes v Shelton, [33] the High Court held that, while a participant in water skiing may be taken to accept risks inherent in the sport, it did not follow that such consent extended to negligence on the part of the driver of the boat. In Caterson v Commissioner for Railways, [34] the High Court upheld a claim by a plaintiff who was carrying a friend's luggage into a carriage when the train started to move unexpectedly and without warning. The plaintiff jumped onto the platform and was injured. Although the plaintiff might have been considered the author of his own misfortune, by jumping from the moving carriage, he did so having left a young boy on the platform many miles from home and the train's next stop was 80 miles away. Where the defendant's negligence placed the plaintiff "in a position in which he has to choose between two dangers" [35] the Court held that the jury was entitled to take the view that there was no contributory negligence, the action having taken place at a time when contributory negligence was a complete defence. 3. Chapman v Hearse [36] involved a motor vehicle collision which resulted in the driver of one car being thrown onto the road at a time when visibility was poor, the sky overcast and the nearest street lamp was not working. A passing driver, a medical practitioner, Dr Alan Cherry, stopped and sought to attend to the injured driver who was still lying on the roadway. Dr Cherry was run down and killed by a third car which had not been involved in the accident. Proceedings were brought by the executor of Dr Cherry's estate against the driver of the third vehicle. The driver alleged contributory negligence on the part of Dr Cherry and also sought contribution from the driver who caused the collision of the first and second vehicles. Applying Haynes v Harwood, the High Court held that the possibility that someone might come to the aid of a party injured in the first collision and in turn be injured was reasonably foreseeable, with the result that the driver responsible for the first collision was liable to contribute to the damages payable to Dr Cherry's estate. [37] In determining liability, the Court stated: [38] "In pursuing this enquiry it is without significance that Dr Cherry was a medical practitioner or that Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured." 1. Dr Cherry was held not to have been guilty of contributory negligence. [39] "It is difficult to see why, upon the evidence, we should entertain the view that Dr Cherry was guilty of contributory negligence. Even more difficult is it to discern any reason why we should interfere with an existing finding to the contrary but the submission was not pressed too far and it is convenient to dispose of it at once. This we may do by asking ourselves whether, in the unusual circumstances of the case, Dr Cherry's conduct involved any departure from the standard which reasonable care for his own safety demanded. To our minds this question can be answered only in one way. He had, naturally enough, come to Chapman's assistance; in the course of attending to Chapman his attention must inevitably have been diverted from the road and if, by reason of this fact, he failed to see the oncoming car until it was too late to get out of its way it would be quite wrong to hold that he was guilty of contributory negligence." 1. Although there was consideration of whether Dr Cherry's act was an intervening event which broke the chain of causation between the negligence leading to the initial collision and the injury to Dr Cherry, and addressed the question of contributory negligence, there was no suggestion that there was any voluntary assumption of risk; such a principle would be inconsistent with the analysis set out above as to contributory negligence. [40] 2. Nor is any different approach to be found in cases dealing with psychological harm. Thus, in Mount Isa Mines Ltd v Pusey, [41] liability for mental harm was accepted in a case involving a "rescuer", that is a fellow worker who came to the assistance of two severely injured colleagues and suffered psychological harm as a consequence. 3. Finally, in Wicks v State Rail Authority (NSW) the High Court considered the liability of the State Rail Authority to police officers who attended the Waterfall train derailment in 2003. [42] The focus of the case was the limitation on recovery of damages for pure mental harm under s 30(2) of the Civil Liability Act, which requires the plaintiff to be a close member of the family of the victim, or to have witnessed the victim being killed, injured or put in peril. Section 30(2) provides a limitation on recovery, as does s 32, which imposes a limit on a duty of care not to cause mental harm. [43] No question of voluntary assumption of risk was identified. 4. There is thus a long history of claims by persons who have put themselves in the way of danger, not necessarily in the course of a legal duty arising from the course of their employment (as may be the case for professional service providers such as firemen and police) against whom no denial of liability based on the doctrine of voluntary assumption of risk has been raised. It is not possible to infer that the principles applicable in such cases have been determined by the High Court inadvertently, without reference to an established doctrine of voluntary assumption of risk. The correct inference is that no such doctrine has operation in these cases. 5. To the extent that the finding of the trial judge that the appellant was solely responsible for his own misfortune involved application of the doctrine of voluntary assumption of risk, the finding should be rejected. To the extent that he did not intend such a finding, the respective contentions of the respondents seeking such a finding should be rejected. It is sufficient to note at this point that to the extent that the appellant encountered danger in the course of his employment as the result of negligence on the part of the respondents, he cannot be said to have voluntarily consented to such a risk of harm. The security guard who is shot and killed by an armed robber, in circumstances where his or her employer has negligently failed to supply appropriate protection, cannot be said to have voluntarily consented to the risk of being murdered. If there is a defence of "voluntary assumption of risk" it is not engaged in such cases. Indeed, it has not been for over a century. [44] 6. It may be noted that the trial judge relied in part on the reasoning of McClellan CJ at CL in Carey v Lake Macquarie City Council. [45] Much of the reasoning is uncontroversial, but other members of the court did not join in his reasons on this issue. [46] Further, the trial judge stated: "[222] 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. 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." 1. McColl JA observed in Carey: [107] The question is not simply whether the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved a risk of which he or she was aware. There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless. It is not enough that the plaintiff knows of the physical facts or circumstances that constitute the risk and exposes him or herself to them, although proof of this will in many cases be sufficient to support an inference that the plaintiff voluntarily assumed the risk. … [108] If all that can be proved is that the plaintiff knew about a risk but did not think about it when he or she engaged in conduct that exposed him or her to the risk, the defence has not been made out. To assume a risk, a plaintiff must know about the risk, he or she must turn their mind to it at the relevant time, and he or she must persist in the risky conduct regardless." The judge's statement at [222] did not reflect the relevance of the plaintiff's state of mind to an assessment of voluntary assumption of risk. (b) factual circumstances 1. On one view, the reasoning of the trial judge that the appellant was the author of his own misfortune and thus solely responsible for the harm suffered is best seen as an example of contributory negligence sufficiently serious to engage s 5S of the Civil Liability Act so that any claim for damages is defeated. One reason for addressing it in that context is that no issue will arise unless the appellant has established the existence of a duty of care on the part of a respondent, together with breach of that duty. On the other hand, a strong case can be made to address a claim that there should be no recovery at all, despite an established breach of duty, as properly arising under s 5D(1)(b) and (4); s 5S would then be otiose, but an element of apparent incoherence would be removed. In any event, the judge's analysis of the appellant's circumstances on the night in question tended to colour the analysis of breach. Accordingly, it is desirable to address those findings prior to considering the conventional analysis set out below. 2. The cross-examination of the appellant, based on two particular documents involving operational instructions given to security guards, focused on directions that particular steps were to be taken in the interests of their own safety. Those directions fell into three broad categories, namely (i) general directions to take care, (ii) particular directions addressed to specific circumstances, but which did not arise on the night of the incident and (iii) particular directions addressed to specific circumstances which had application to the incident. For reasons which will be explained, the approach adopted by the cross-examiner was flawed because it failed to address the directions in the context of the appellant's job description and functions. 3. The general directions were little more than directions to take care for one's own safety. That they were deemed necessary reflected the fact that the work of a security guard involves risks to personal safety. The passage relied upon by the trial judge was identified in the following terms: "[52] The plaintiff agreed that the work that he performed as a security officer at the premises included doing patrols. 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: • Consider own personal safety first • Always call for assistance/back up/instruction from control room • Do not resist or cause conflict • Follow hold up procedure • At all times adhere to Firearms legislation • Follow procedure for patrol officers (my emphasis in each case)" 1. The judge noted the cross-examination on those directions, together with the conclusions he drew from the cross-examination, in the following terms: "[54] The plaintiff was cross-examined about the instructions contained in these parts of the Management Plan: Q. Did you understand that, again, to be telling you that your own personal safety was paramount? A. Well, that's correct, yeah. Q. And that you should call for assistance and backup, and not take any action, on your account, to confront an intruder or an offender? A. Well, if you're talking about that night, the alarm went off, and I had to go check Q. Mr Capar, I'm asking you about what you understood this document to be requiring you to do … A. Yeah, I understand the, yeah, call for help, the police, the supervisor. Yeah, I get what you're saying. [55] 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: (i) his own safety was the paramount consideration; (ii) upon becoming aware of the presence of an intruder he was required to call for assistance; and (iii) he was not to act in a way which jeopardised his own safety. [56] Importantly, he understood all of this to be the case in circumstances where it was obvious that an intruder could be a dangerous criminal." 1. The passage of cross-examination is instructive: as the second question and answer revealed, the cross-examiner was focusing entirely on the document and was not interested in how such a broad direction might be understood and applied in the particular circumstances which arose on the night of the incident. The inferences drawn by the judge similarly provided no assistance in respect of the particular events. 2. The second document was described as Business Protection's "Standing Operating Procedures". The document contained 71 separate headings, some of which were directed to Business Protection's own policies (including those headed "equal employment opportunity", "harassment/sexual harassment"); some were addressed anodyne topics such as "appearance", "name tags/identification badges"; others were disciplinary, including bans on smoking and sleeping on duty (clause S9 was headed "talking on duty" and required an officer to give "undivided attention" to his or her duties and to avoid "long and unnecessary conversations"). The cross-examiner focused on S11 which stated that "Officers are not to leave their posts" and are not to engage in "pursuit of offenders", the latter being "a matter for the Police". The trial judge treated the appellant's "post" as the "control room" in the Centre and observed that it would have been difficult "if not impossible, for any person in his position to comply with the instructions 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." [47] However, the judge said that he was directed not to leave the control room for the purpose of "pursuing intruders", and was aware of that. 3. Reading the clause in context, it seems implausible that the appellant could be treated as pursuing an intruder when leaving the control room to see if an intruder had in fact entered the premises. Nevertheless, the judge concluded: "[67] 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." 1. This passage omits mention of the fact that, as the appellant explained in his evidence, he left the control room because no CCTV camera covered the area above the roller door at the foot of the fire stairs, being an area that the appellant had seen the potential intruder approach, but without knowing whether he had actually obtained access to the building. There was no evidence that he could have seen the intruder in the building from the control room; indeed, the layout of the building as revealed in the evidence suggested otherwise. 2. The cross-examiner took the appellant to a paragraph headed "S42 Duties and procedures patrol officers" which read as follows: "If offenders are discovered on a client's premises, immediately contact, notify the police. Do not attempt to capture the offenders on their own unless circumstances allow you no other choice of action. Whilst waiting for the police to attend leave the premises normally and observe from a remote position. Assist the police as directed when they arrive but don't be a hindrance. If you see an offender on a non-client premises, do not enter the premises but contact office or the Operations Manager immediately for notification to the police, and if possible remain and observe from a remote position. Record all activity in the security logbook in case a statement is required at a later time." 1. Nothing in the first paragraph was contravened by the appellant on the night in question. The first step he took, positioning himself where he could see the top of the escalator coming up to the first level, was undertaken in order to "discover" whether an intruder was present. He did not attempt to capture him. Nor in fact did he stay to observe the intruder from a distance, given the threat made to him. So far as the second paragraph was concerned, there was no discussion of what was meant by "non-client premises", but in any event the appellant did not enter particular premises in the Centre, nor did the intruder. 2. It is convenient to set out a little of the cross-examination relied upon by the trial judge, which read as follows: [48] "[69] The plaintiff was cross-examined further: Q. Mr Capar, so when you embarked on your work at the Lidcombe Power Centre, you understood very clearly that your role was that of an observer? A. Yeah, observed the cameras, and things like that, yes. Q. And if you saw that somebody was on the premises, your role was to notify the police immediately? A. Or look on the cameras, and see what they're actually doing, and then, I suppose, see what's going on, yeah, then notify police and the supervisor. Q. Mr Capar, if you saw, on the cameras, that somebody had illegally entered the premises A. Mm-hmm. Q. You knew what they were doing, you knew that they were up to no good, didn't you? A. Well, yeah, obviously. Q. So there would be no reason why you wouldn't notify the police immediately, upon seeing that someone had entered the premises illegally, would there? A. Well, I had to go observe and see what Q. Mr Capar, please answer my question. A. They did. … Q. The question was this: if you saw on your camera that someone had illegally entered the premises, you wouldn't need to investigate what they were doing because you knew straight away that they shouldn't be in the premises, didn't you? A. Well, I - yeah. Q. That's correct, isn't it? A. Well, the way you're saying it's not really. I observe Q. Mr Capar A. In case they - - - … WITNESS: - - - case they took off and there was a false alarm. Yeah, then rang the police and supervisor. HIS HONOUR Q. But Mr Capar, what's being put to you is this: that when you realised somebody was on the premises after hours, you must have realised that they were up to no good. Do you agree with that? A. Yeah, I agree with that. Yes. FELLER Q. And if you saw that somebody was carrying a weapon, for example, you'd really know that they're up to no good, wouldn't you? A. Yeah, if I monitor it on the camera, yeah. Q. Or even if you suspected that they were carrying some type of a concealed weapon, then you'd really think they're up to no good? A. Well, how can I tell if they've got something concealed? Q. Well, because they shouldn't be on the premises in the first place, should they? A. Well, yeah. After hours, that's correct. Q. And if you saw somebody on the premises illegally after hours, then you would know that they had either forced entry into the premises or somehow gained entry in a way which wasn't authorised? A. That's incorrect 'cause there was bowling all night so there was people walking around. Sometimes the electric slide doors were no good so people would walk in. I'd go tell 'em what's happening and they go, 'Oh, we want to go to the bowling and things like that.' So the centre wasn't up to scratch." 1. If the purpose of the cross-examiner were merely to ensure that the appellant had at some stage (seven years prior to the cross-examination) read and understood the document, the cross-examination would have been unremarkable. However, as the appellant, in seeking to answer by reference to the events on the night of the incident demonstrated, he understood the questioning as relevant to what had happened. As it turned out, his assumption was correct: the cross-examination was relied upon as if it related to the incident on the night in question; there was no recognition that the appellant had sought to indicate that he did not believe that to be the case. 2. The third document relied upon by the cross-examiner was a further Business Protection document, specific to Lidcombe Power Centre and entitled "Site Operations Manual". The appellant was taken to two provisions in the manual and asked to read them to himself. The first was clause 35: [49] "35. Armed Person/s If security personnel see, find, notice any person armed with any weapon or item which you believe may be used to cause harm call the police immediately. Take a note of the person's height, weight, clothing, age, vehicle registration, direction when leaving and weapons or item description. Call and wait for the police to arrive. Pass on all information to Police. Contact the site supervisor, Centre Management and BPG Management. Security personnel will need to complete an incident report." 1. He was asked if he had read and understood it "at the time", which he no doubt understood as being prior to the incident. [50] The cross-examiner simply took him through it. He was not asked if it applied, in his view, to the events of the night in question. At the point at which he knew the man was armed, namely when he saw the man holding an axe and threatening him, he fled to the control room and called the police immediately, which was precisely in accordance with his obligations under the first paragraph of that clause. In fact, unsurprisingly given the circumstances, his failure was to take a note of the person's height, weight, clothing and age in accordance with the second paragraph. He was not criticised on that score. 2. The second passage which was the subject of cross-examination read as follows: [51] "41. Tenant Break-ins When finding a tenants (sic) premise has been broken into or forced entry has been identified, security personnel are to do as follows: • Do not enter premises (offenders still may be on site) • Back off and retreat to a safe distance to where you can still see the premise (sic) clearly • Call for back (sic) (either other guard or Victoria Police) • Contact the after-hours (sic) for the premises. • Wait for the police to arrive • Enter premises with Police • Check for any damage and/or stolen items. • Inform after-hours, centre management, Site supervisor and BPG management. • Stay on site till after-hours and provide assistance. • Security personnel will be required to enter this in daily log and complete an incident report." 1. The cross-examination was, again, generic: it simply went through the clause line by line seeking agreement that the appellant understood the instructions. Significantly, however, the following question and answer appeared: [52] "Q. All right. And you understood that in the event of a break-in, the site operations manual required you not to enter the premises? Item the first bullet point? A. Well, if you're referring to the first break and enter before— Q. No, Mr Capar, I'm referring to what's on this document. HIS HONOUR: Just concentrate on the question, Mr Capar. FELLER Q. You see the first bullet point said, 'Do not enter premises. Offenders still may be inside.' A. Well, yeah, of course. Q. And that was just plain common sense, wasn't it? A. Well, virtually, yeah." 1. The point of the cross-examination was unclear, unless the answers were to be misinterpreted. The appellant's understanding, as suggested by the answer which was said to be irrelevant, was that the earlier incident, in February 2010, had involved a break-in of tenant's premises, whereas the incident in question did not. The judge's finding based on the document and the cross-examination was in the following terms: "[50] 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." 1. The first sentence in this reasoning generalised from clause 41 to "any part of the premises where an intruder might be present". Other inferences drawn were no doubt accepted by the appellant, but they were obvious matters which no person sought to contradict. There was no attempt to address the instruction in the light of evidence as to what the appellant did, and was apparently expected to do, when he attended the February incident. The incident report of the February break-in was as follows: "At approximately 0300hrs, security officer Gengiz Capar received a call from SAS monitoring centre advising him that they have received an alarm. The alarm was coming from Spotlight main auto door. Gengiz made his way there immediately and observed the front main auto door had been smashed with a Spotlight trolley. At this stage there [were] no persons visible. Gengiz then entered the Spotlight store and completed a full internal patrol, the store was empty. He then contacted his supervisor Bill Morris at 0305hrs and was advised to contact the police and stay static whilst Bill organizes another guard for assistance. Gengiz called the local police and they arrived at approximately 0315hrs. At this stage Simon arrived onsite [Simon Tellin, an employee of Dynamite] and was told to stay static until the morning. Simon stated that at approximately 0430hrs, a male and female had been loitering on ground level outside Pet Goods direct. Simon made himself visible to the male and female. When they realized that he was security they ran down Parramatta Rd and did not return." 1. On the basis purely of the instruction manuals and the cross-examination relating to them, the judge drew the following inferences: "[70] 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: (i) it was dangerous to go to any part of the premises where an intruder might be present; (ii) there was a consequent necessity to keep a safe distance away; (iii) there was an express instruction in clause 41 of Operations Manual that in the event that an intruder came onto the premises who was armed, or who appeared to be in possession of something that could cause harm, he was to "back off", call the police, and wait for them to arrive; (iv) in the event that an intruder did come on to the premises, his (i.e. the plaintiff's) own safety was the paramount consideration, and he was not to act in a way which jeopardised that safety; (v) pursuing intruders was the responsibility of police, not security staff; and (vi) the underlying rationale of all of these matters was, at least in part, the preservation of his own safety." 1. The first two inferences are general, and appear to reflect clause 41 of the Site Operations Manual, although it was not in those terms. The third inference is expressly directed to clause 41, although it was probably derived from clause 35. However it only engaged with the facts of the evening at the point at which the appellant had reason to believe that the intruder was present and armed. Inferences 4, 5 and 6 were all part of the same point, namely that the rationale for the directions was "at least in part, the preservation of his own safety." 2. Before concluding that those inferences as to the appellant's knowledge had relevance to the 17 March incident, it would have been necessary to engage with other aspects of the operations manual and the functions actually performed by security guards. First, and curiously, neither the cross-examiner nor the judge had regard to clause 34 in the Site Operations Manual, which read as follows: "34. Person/s making "Threats to Kill" This is a very serious situation to be in or attend to. Extreme caution must be taken and any threat to kill made to security personnel or any other persons are to be taken seriously. This does not mean that security personnel should restrain or attempt to arrest the individual making the threat. The individual may be armed or have other friends nearby and this may place innocent bystanders (including security personnel) in danger. If security personnel have been called to attend a situation where somebody has made a threat to kill, then it is highly advisable to call the Police immediately to attend and provide backup. When attending the scene be very careful and try to ascertain if the person is armed or not from a distance. If the person is armed, maintain your distance and keep an eye on what is happening until the police arrive. Try to move and keep innocent people away from the scene. if you believe the person is not armed then approach with caution and keep assessing the situation as you arrive at the scene. If you believe it is safe to ask the person to leave then do so. Remember to note down the persons description, clothing, direction, and car registration if possible. Following the person may make them more aggressive and angry so keep a safe distance. Security personnel will need to pass on the information to the Police upon their arrival." 1. On one view, the appellant's conduct followed this broad description of appropriate steps to be taken in the precise situation which eventuated on 17 March. Even more importantly, the existence of clause 35 anticipated that a security guard might find himself or herself in such circumstances. Indeed, the operations manual has numerous clauses directed to such situations, under the headings "Shoplifters", "Apprehensions", "Aggressive Person/s/Violent offenders", "Person/s making 'Threats to kill'", "Armed Person/s", "Armed Holdup/Robbery", "Suspicious Bags/ Parcels/ Items", "Assaults" and so on. [53] 2. Secondly, the intimation in the judge's findings that a security guard was expected to play an entirely passive role, avoiding any situation in which he might confront an intruder, cannot be reconciled with the functions described in the Site Operations Manual. For example, clause 15 set out "Night Patrol Procedures" and (unlike provisions such as clause 41, which referred to the need to call "Victoria Police") was specifically designed for the Lidcombe Power Centre. It included a form to be completed by each officer on duty, indicating that between midnight and approximately 5am, the officer was required to undertake six patrols including external patrols which involved going out of the gates, along Parramatta Road, upstairs and along "all tenancies", downstairs and out on to the street, re-entering through the gates where the patrol started and checking all loading docks and external fire doors. The internal patrols required checking all levels, including toilets and stairwells. 3. Thirdly, the evidence of what the appellant did on 10 February, on instructions and without criticism from management who would have viewed the incident report, was inconsistent with the judge's view of a security officer's functions, based on a semantic analysis of limited parts of the instruction manuals. 4. Finally, the emails from management on the morning of 17 March noted above demonstrated no criticism of the appellant's conduct on the previous night; indeed the contrary. Nor did any respondent call any witness to suggest that the appellant had acted in contravention of proper practice, or contrary to expectations of management. 5. The inference drawn by the judge that the appellant was the author of his own misfortune did not ultimately depend upon any assessment of the credibility or reliability of the appellant, or his evidence. This Court can readily "conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law". [54] In my view, the findings at [109] of the primary judgment, repeated in other passages, must be rejected. The appellant, it should be found, acted appropriately. If it becomes necessary to address the matter, there was also no basis for a finding of contributory negligence on his part. Ground 3 must be upheld. 6. It is necessary, therefore, to identify any duty of care owed by the respondents and to consider whether each or any of them was in breach of such a duty. As will be explained shortly, there can be no doubt each respondent owed the appellant a duty of care; the case against each turned upon the question of breach. Duty of care (a) Civil Liability Act, s 32 1. It is convenient to consider first the effect of s 32 of the Civil Liability Act, set out at [4] above. The question is whether the person alleged to owe a duty of care 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." As noted above, the trial judge addressed this language by reference to two specific factors. The first was to conclude that it was not reasonably foreseeable that the intruder might threaten the appellant in the manner in which he did. [55] The reasons supporting that conclusion related to the second issue, namely that the appellant's conduct in drawing attention to his presence was unforeseeable. [56] 2. For reasons which will be addressed further in considering breach of duty, neither of these findings of fact should be accepted. Relevantly for present purposes, however, they are not responsive to the language of s 32. The need to consider "the circumstances of the case" is not to ask whether the circumstances were reasonably foreseeable, but whether, given those circumstances, a person of "normal fortitude" might suffer psychiatric illness. That question was not appropriately answered by saying that the circumstances of the case were not foreseeable. Nor was it appropriately answered by reference to the conduct of the appellant. Rather, the "circumstances of the case" were identified in part in s 32(2), which deals with such matters as what the plaintiff witnessed or whether the plaintiff suffered a "sudden shock", matters which were not conclusive of an answer either way, but which related to the immediate cause of the psychiatric illness, rather than the foreseeability of the cause. 3. There is a question as to whether, having identified error with respect to the manner in which the trial judge dealt with the operation of s 32, the matter can be resolved in this Court, or whether it must be remitted for a further hearing. There are three factors which militate in favour of the matter being resolved by this Court if that is possible. First, there has been significant delay in resolving a claim for damages resulting from a workplace injury, which occurred more than 10 years ago. Secondly, the test to be undertaken pursuant to s 32 requires an objective and prospective judgment. It cannot turn on findings of fact as to the consequences for the appellant of the incident, nor on the precise circumstances which evolved on the evening in question. Thirdly, only the appellant gave evidence as to what happened; to the extent that the detail is relevant in order to identify the circumstances of the case, it is not in dispute. 4. In principle, the question as to what might be expected of a person of normal fortitude in the circumstances of the case could be the subject of expert evidence from psychiatrists or psychologists. However, helpful evidence in that respect may not be easy to come by. As Windeyer J noted in Mount Isa Mines Ltd v Pusey: [57] "The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. Waller J referred to this in Chadwick v. British Railways Board: [58] 'The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities.'" It is not apparent that advances in psychological understanding have rendered those observations no longer true. 1. Without the assistance of psychiatric evidence, the lay view might well be that a person of normal fortitude alone in a large building at night chased by a man with an axe saying "I will kill you" would experience a level of terror and hence possible psychiatric illness. However, the point was not to be determined without reference to psychiatric evidence. Dr Jonathon Phillips, consultant psychiatrist, gave evidence in the course of cross-examination in the following terms: [59] "Q. Now, it's not inevitable, is it, that a person of ordinary emotional fortitude would suffer a shock in those circumstances? A. I would have thought it's very close to inevitable that a person of normal fortitude given the site, the loneliness, the lack of light, the time of the night and an approaching figure, would react adversely because of a psychological shock. Q. But it's not inevitable that a person of ordinary emotional fortitude would, as a result of getting a shock of that type, develop a severe depressive reaction, that's correct, isn't it? A. I think that's true, that the damage is there, the damage may deplete, the damage may continue and, clearly, a major depressive disorder is one option. One might say, well, what about post-traumatic stress disorder, is that another option? The answer is yes. Anxiety state is a third option. I won't take it further. … Q. The question I put to you is this, that it is far more likely that a person might develop a post-traumatic stress disorder from a traumatic event of the type we've been discussing than a severe reactive depression? A. With respect, no. A reactive depression is vastly more probable and a post-traumatic stress disorder, PTSD, to the surprise of some quite a rare disorder." 1. It must be recalled that the test prescribed by s 32 is whether a person of normal fortitude "might" suffer a psychiatric illness in the circumstances of the case. Senior counsel for SPG Investments, in conducting the cross-examination, by asking whether a shock was "inevitable" effectively conceded the test in s 32 was satisfied. Indeed, in the third question set out above, the underlying assumption was that PTSD was a likely reaction, at least, "far more likely" than a severe reactive depression. 2. In written submissions relating to s 32, this was the passage in the evidence most relevant to the question to be determined. The submission also noted that Dr Phillips "conceded" that "in a definitional sense, a person who is a regular user of cannabis is not a person of normal fortitude." However, that question was addressed to a particular characteristic of the appellant, on the defence case, and not to the question raised by s 32. The written submissions of Business Protection adopted the submissions of SPG Investments. [60] It should be accepted, therefore, that the evidence supported the conclusion that s 32 of the Civil Liability Act was satisfied in the circumstances of this case. (b) duty – SPG Investments 1. There was no challenge to the conclusion that SPG Investments owed some duty of care to the appellant; the issue was formulated at trial as to whether this was merely the duty of care owed by an occupier of premises to a person lawfully coming onto the premises, or whether there was an "extended duty of care". The concept of an "extended" duty of care is unclear. It is true that, in practical terms, there is no clear distinction between what is sometimes identified as the content of a duty and conduct which may constitute a breach of the duty: one may readily be described as the opposite of the other. Three propositions appear to have been critical to the judge's reasoning. 2. First, it was said that SPG Investments "did not employ the plaintiff and accordingly had no control over the manner in which he discharged his duties and responsibilities." [61] Secondly, it was said that the appellant's injuries were "a consequence of the criminal behaviour of an intruder whose entry was unauthorised and unexpected." [62] Attention in this respect was paid to the reasoning of the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil. [63] The judge concluded that "in cases where a duty to control the conduct of the 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", which was said not to be the case here. [64] Thirdly, the judge found that the critical failure alleged on the part of the SPG Investments was in not closing a "gap" above a roller door, which had allowed the intruder access to the premises, but of the significance of which as a weak point in the perimeter it was not aware. 3. The third factor may be put to one side for present purposes. Whether SPG Investments was aware of the gap would be irrelevant in the absence of a finding that it owed the duty of care involving taking reasonable steps to maintain the security or integrity of the perimeter of the building. Awareness of the weakness would, therefore, be relevant to breach, not to the existence of the duty. 4. Much the same objection operates with respect to the other two factors. How the appellant carried out his duties was not relevant to whether there was a duty of care owed to him; further, the presence of an intruder on the premises was only relevant if there was a duty of care to secure the premises against intruders. 5. Correctly, the judge identified the question to be answered in terms explained by Mason J in Papatonakis v Australian Telecommunications Commission: [65] "The content of the occupier's duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises. … Those cases, which have denied the liability of occupiers to skilled independent contractors injured when encountering risks ordinarily incident to the work they were invited onto the premises to perform, should not be seen as establishing any exception to the normal duty of an occupier to an invitee but rather as particular applications of that duty." 1. Although Mason J was in dissent as to the liability of the occupier on the facts, the statement of principle was reflected in all judgments. 2. Applying those principles, both the appellant and Business Protection contend that SPG Investments owed a duty of care to the appellant. Once distractions are removed, that conclusion should be accepted, as a matter of law. 3. There are, no doubt, various reasons why the owner of a large building containing valuable goods and equipment may seek to protect the premises and their contents by maintaining security whilst the building is not in use. The case for SPG Investments, as run at trial, was summarised by the judge in terms to which no objection was taken in this Court: "[15] 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." 1. As the owner of the premises SPG Investments had responsibility for the physical elements of its security, such as lockable doors. Thus, if there were a means of access to the building which was not properly secured, it was the party able to take reasonable steps to rectify any structural defect. It followed that the concession that SPG Investments owed a duty of care was sufficient to dispose of that issue. The duty is to take reasonable care for the safety of occupants. That duty included providing a secure perimeter during hours when the building was not open to the public. Whether particular steps were required in relation to the access obtained by the intruder over the roller door was a factual matter to be considered in determining whether there had been any breach of duty to those who were required to work on the premises, including a security guard employed to work alone after hours. (c) duty – Business Protection 1. The judge accepted that Business Protection had no physical presence in the building and therefore was not an occupier of the premises. Its liability turned upon its role either as an employer or as an independent contractor. Business Protection's case was that it had either "delegated" its obligations under its contract with SPG Investments to Dynamite Security, or Dynamite Security was an independent contractor for whose negligence Business Protection was not liable. 2. The trial judge accepted that it had not delegated its responsibilities entirely to Dynamite Security, although Dynamite Security was an independent contractor. Rather, it maintained a significant degree of control over the services provided by security guards, including requiring them to wear a uniform bearing Business Protection's logo, providing training and instructions by way of various manuals and requiring that they comply with instruction manuals prepared by Business Protection. The judge's finding in this regard are set out at [22] above. 3. Business Protection resisted the limited findings of the trial judge on the basis that he had wrongly inferred that a particular person, Mr Bill Morris, was an employee of Business Protection, rather than an employee of Dynamite Security. There was undoubtedly evidence that Mr Bill Morris worked for Business Protection in late 2009 and early 2010. However, as Dynamite Security submitted, there was evidence that Mr Bill Morris worked for Business Protection in the first part of 2009 and that the appellant commenced work at the Lidcombe Power Centre in June 2009. The finding by the trial judge was that, whilst acting as Business Protection's operations manager, Mr Bill Morris "was at least partly responsible for the plaintiff's training." [66] That he may have transferred to the workforce of the labour hire company, Dynamite Security, is largely beside the point. The issue was whether Business Protection had had a role in establishing the work conditions at the Lidcombe Power Centre prior to the appellant's employment. As noted below, there was no reason to doubt the judge's factual finding in that regard. 4. There were the arrangements between SPG Investments and Business Protection for the provision of security services by the latter at the Lidcombe Power Centre. Those arrangements were put in place by Richard O'Brien & Associates Pty Ltd (O'Brien) as agent for SPG Investments. (SPG Investments described O'Brien as its "asset manager".) O'Brien had negotiated the agreement between SPG Investments and Business Protection for the latter to provide security services at the Lidcombe Power Centre from a date well prior to June 2009. 5. Much of the evidence as to the contractual relationships was unclear because none of the corporate entities called evidence at the trial. There was however a volume of documentary material, although the provenance of some documents was unclear. Those documents included a document prepared by Business Protection headed "Scope of works for SPG Investments", which set out the services to be provided, the training programs for security staff, including the assurance that "BPg train all staff and a team is dedicated to the buildings assigned. … All new BPg staff must be trained before commencement of employment to ensure understanding and safety requirements are understood." 6. That document further stated that "no firearms or weapons will be carried by the security officer" and that "[w]eekly and monthly reports are issued to the asset manager." The object of the proffered services was to "eliminate hazards and opportunities for crime". The document (the copy of which in evidence) was dated May 2009. 7. There were two documents in evidence entitled "Site Operations Manual" for Lidcombe Power Centre, bearing the Business Protection logo; there was also a document entitled "Security Instructions for Lidcombe Spotlight Centre", again bearing the Business Protection logo. The last document identified relevant Business Protection staff in a box which included Mr Bill Morris as NSW Team Leader. It may be that Mr Morris was also employed by Dynamite Security; he was also named in a box which included security officers associated with Dynamite Security. In the earlier of the two manuals he is identified in the box including Business Protection staff, where he was described as "operation manager", and was not listed amongst the security staff, although the appellant was. 8. There was ample evidence to support the finding that Business Protection took responsibility for training security staff and defining the operations to be carried out, as it was the subcontractor of the owner. There was no documentary evidence as to its relationship with Dynamite Security. 9. There can be little doubt on the basis of this material that the trial judge was correct to conclude that Business Protection owed a duty of care to security staff, including the appellant, with respect to the operations at the Lidcombe Power Centre. 10. Neither before the trial judge nor in this Court did the nominal insurer dispute the employer's duty of care to the appellant. The trial judge found that it did not breach that duty. Its notice of contention relied upon the defence of voluntary assumption of risk and contributory negligence, which were not addressed below. Breach of duty (a) factual background 1. There were two relevant incidents which occurred close in time. The first was a break-in on the night of 9/10 February 2010, in the course of which two intruders obtained access by climbing over the top of the roller door at the bottom of a set of fire stairs. The incident was presently relevant, not because of the appellant's role in it, but because it should have alerted each of the respondents to a weakness in the perimeter security of the Centre. 2. The second incident, on March 17, involved three stages. First, the appellant, in his office watching CCTV coverage of the forecourt of Lidcombe Power Centre, noted a man with a large bag and a cap pulled down over his eyes approach the Centre. The appellant lost sight of him because there was no CCTV camera covering the roller door or the fire stairs behind it. The man's behaviour led the appellant to be suspicious as to his intentions and caused him to leave his office and take a position where he could observe the man if he came up the escalator from the possible ground floor entry point. That was the second stage of the events. 3. The third stage arose when, in fulfilment of the appellant's fear, the man appeared at the top of the escalators and the exchange described by the appellant and set out at [12]-[13] above took place. The appellant turned and fled to the safety of his office and rang the police. It appears that the intruder had immediately fled and was shortly thereafter apprehended by police, alerted by the appellant. (b) expert evidence 1. The appellant, Business Protection and Dynamite Security briefed experts on building security. They prepared a brief joint report, which was excluded by the trial judge. [67] Reasons were not given for that decision, but when sought, the judge indicated they would be "incorporated into the final judgment." [68] The final judgment did not include any reasons for excluding the joint experts report. Ground 13 in the amended notice of appeal challenged the exclusion of the joint report; ground 14 alleged error in failing to give reasons. 2. The judge addressed objections to the individual reports of the experts separately. He allowed the tender of Mr Flanders' report; Mr Flanders, called by the appellant, was cross-examined. The judge considered his evidence in some little detail, [69] and placed "no weight upon his report, his oral evidence, or his opinions." The appellant challenged that conclusion, identifying in ground 15 three bases of challenge, namely (i) failing to give adequate reasons, (ii) failing to adequately or properly consider the evidence and (iii) not accepting opinions which had not been the subject of cross-examination. 3. There is no reason to trouble with the complaint of the inadequacy of the reasons in respect of Mr Flanders' evidence. The reasons for the judge's conclusion were set out in detail; whether they were persuasive is another question. The challenge based on lack of reasons must be rejected. 4. In other respects, it is convenient to deal with Mr Flanders' report first, because he provided explanations and reasoning for certain conclusions, being matters in respect of which the joint report was of limited assistance. 5. The criticisms raised by Mr Flanders with respect to the conduct of the respondents may be grouped in three categories, namely (i) inadequate induction and training, (ii) failure to provide a safe system of work, and (iii) failure to address structural defects in the premises. 6. With respect to the first matter, the judge was entitled to reject Mr Flanders' evidence, as he did, on the basis that the underlying premise was false. Thus, the judge accepted that the appellant had received and understood the various instructions contained in the manuals as to what to do when aware of the presence of an intruder. [70] 7. With respect to the approach to be adopted when confronted by an intruder, the judge noted that Mr Flanders had formed his opinions on the basis of three inspections of the premises which he had conceded were "cursory", the judge noting that "[n]ot one of them included an inspection of the control room." [71] The judge was entitled to reject Mr Flanders' evidence as to procedures which should have been adopted to ensure a safe system of work. 8. The judge also identified shortcomings in the manner in which Mr Flanders gave evidence, describing him as "a less than satisfactory witness." The judge asserted that 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." [72] The judge stated that this approach was typified by answers given by Mr Flanders in relation to clause 41 of the operations manual. It is not necessary to address the judge's view of that part of the cross-examination, although, in my view, Mr Flanders was entitled to reject the suggestion that clause 41 involved "a clear instruction as to staying away from offenders". [73] Having read the extract from the cross-examination and the context in which it occurred, it demonstrates an unwillingness to accept propositions being put by cross-examining counsel, but on a basis which finds support within the text of the operations manual. However, the matter need not be pursued because the judge was clearly entitled to reject Mr Flanders' views about the level of, and appropriateness of, the instructions provided to the appellant. 9. The third category of criticisms made by Mr Flanders related to the physical structure of the premises. It was that material upon which the appellant relied in this Court. As noted by the trial judge, the failures identified by Mr Flanders were as follows: [74] "• Not correcting a reported site physical security weakness in a timely manner that being the blocking the air space/void above the roller door. • Not conducting a security risk assessment after being notified of the security weakness reported by the Plaintiff in February 2010. … • Failing to install audible contact alarms to external doors to alert night guards to a forced entry. • Failing to install alarmed movement detectors in corridors immediately behind external doors so that [night] guards would be alerted to movement at entry points after lockdown. • Failing to install CCTV cameras inside stairwells at ground floor level. • Failing to provide a back to base radio monitoring system to support guarding activities." 1. The appellant's case focused on the first two points, which concerned knowledge of the February break-in. As will be noted, the trial judge rejected breach on the part of SPG Investments on the basis that the evidence did not establish that it had become aware of the February break-in when it occurred. 2. The cross-examination of Mr Flanders in relation to the matters identified above, on the part of SPG Investments, was confined to identifying the failures as those of Dynamite Security. [75] The cross-examiner also took Mr Flanders through photographs showing the distance between the top of the roller and the ceiling. The cross-examination on behalf of Business Protection was largely directed to identifying the significant rate of break-ins in the Lidcombe area involving commercial and non-residential property, established to be about five per week. Counsel for Dynamite Security did not cross-examine Mr Flanders. 3. It was correct to identify any weaknesses in the physical structure of the premises as weaknesses which it was the obligation of SPG Investments, as the owner of the building to rectify. It may also have been an obligation of Business Protection and Dynamite Security to raise such issues with the owner. None of the cross-examination challenged Mr Flanders' opinions that steps of the kind identified in the passage set out at [128] above should have been taken. 4. Turning to the joint expert report, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.26(2), the report identified matters which were agreed and matters which were not agreed. Agreement was reached in relation to the following questions and answers: "2. Should a risk assessment have been carried out by on-site management following the February 2010 incident when an intruder gained access to the void above the locked roller shutter door on the ground level Parramatta Road forecourt? Answer – Agreed between the experts. Yes, a risk assessment should have been carried out by a licensed security consultant (Class 2A). 3. If the answer to question 2 is yes, what qualifications should have been held by the person carrying out the risk assessment? Answer – Agreed between the experts. Minimum is a Certificate IV in Security Risk Management qualification or higher i.e. diploma or advanced diploma. This is a mandatory pre-licensing requirement for a security consultants licence. 4. What could have been a reasonable response to the risk posted by the February 2010 incident? Answer – Agreed between the experts. The gap above the roller door should have been enclosed with a physical barrier such as wire mesh or similar to prevent access to the centre. 5. What would be the approximate cost of the measure(s) identified? Answer – Agreed between the experts. We estimate less than $5,000 for an immediate temporary solution and then installation of a robust permanent solution." 1. The appellant submitted that agreed answers were admissible pursuant to UCPR r 31.26(3). No doubt the material must be relevant, but there is no doubt that the answers set out above qualified on that basis. 2. As demonstrated by the judgment of Adamson J in X v Sydney Children's Hospitals Speciality Network (No 5), [76] various issues had been raised over the years as to the precise effect and operation of r 31.26(3). Adamson J rejected a submission that the provision related only to tender, and not to admissibility. There may, however, be discretionary reasons for rejecting expert opinion, pursuant to s 135 of the Evidence Act 1995 (NSW). So much was accepted in X v Sydney Children's Hospitals, but it is a qualification which has no obvious relevance in the present case. It was also suggested in X v Sydney Children's Hospitals, and not rejected out of hand, that an issue might arise as to whether the experts' opinions fell within the area of their expertise. The better view is that if the rule correctly addresses admissibility, as may be accepted, it does so not by overriding the requirements, for example, of s 79 of the Evidence Act, but by waiving the need for the circumstances satisfying such a provision to be set out in the expert report. An opinion patently outside the area of expertise could be rejected, or given no weight. 3. There is, in the present case, a further question as to whether it is appropriate for this Court to take into account the opinions expressed in the joint expert report by way of agreement. Apart from Mr Flanders, the experts were not called at trial. Nor was there any suggestion that this Court should take oral evidence. On the other hand, it is difficult to see on what legitimate basis the respondents could claim prejudice if the evidence were tendered and admitted without oral questioning. It may fairly be said, as submitted by senior counsel for Business Protection, that the questions left something to be desired and the answers given were of limited assistance. To the extent that the parties formulated the questions and obtained answers, upon which the respective experts were agreed, there is a strong case for saying that the obligation under Pt 6 of the Civil Procedure Act 2005 (NSW) militates against permitting any remittal for further hearing. Those provisions oblige the court and the parties to ensure that the practices and procedures of the court are appropriate "for the speedy determination of the real issues" [77] and to ensure that the costs involved are proportionate to the importance and complexity of the subject matter in dispute. [78] However, apart from a challenge to the costing in the answer to question 5, the answers were not patently outside the professed area of expertise. Furthermore, in so far as the answers supported to the plaintiff's case, and were in turn supported by the plaintiff's own expert, he was available for cross-examination and was cross-examined at the trial. 4. In these circumstances, in the absence of any good reason to reject the agreed opinions of the experts, they should have been admitted at trial and should now be admitted on the appeal. The weight to be given to such material is a separate question. (c) breach – SPG Investments 1. In dealing with breach, the judge held that the risk faced by the plaintiff was "the risk that he might sustain injury as a consequence of an encounter with an intruder." [79] The judge was satisfied that the identified risk was both foreseeable and not insignificant, for the purposes of s 5B(1) of the Civil Liability Act. [80] The judge was further satisfied of a probability that harm would come to the plaintiff if care were not taken and that there was a likelihood that such harm would be serious, thus taking into account critical factors in s 5B(2). The judge correctly identified the real question as being whether a reasonable person in the position of SPG Investments would have taken precautions which were not taken. On that issue, the judge concluded as follows: "[210] 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 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." 1. The reference to not being satisfied that SPG Investments was "aware of the gap" referred back to the judge's analysis of the email exchanges which followed the incident on 10 February 2010. [81] The judge's finding was expressed in the following terms: "[84] 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. [82] 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 passage in Optus referred to in the footnote involved aggregating information held by more than one employee in order to find corporate knowledge on the part of a defendant in circumstances where no officer who might be identified as a directing mind of the corporation had all the relevant information. That was not this case. 1. The trial judge undertook an analysis of the emails which followed the incident on 10 February in terms with which the appellant took issue. The judge's conclusion was that the only reference to "entry having been gained through the gap at the time of the February incident" was contained in an email by an employee of Business Protection to the Managing Director of Business Protection and to an employee of O'Brien. The appellant's submission that the trial judge drew an unduly narrow inference as to the knowledge of SPG Investments from this material should be accepted. To explain why, it is necessary to set out the key elements of the evidence. 2. The first email, at 8.21am on 10 February 2010, came from a person identified only as "Janet" at "Spotlight Lidcombe", which the trial judge correctly inferred was the Spotlight store which had been broken into some hours earlier. The email appears to have been directed to officers of Spotlight, including Georgia Hall (risk management). There was nothing in the email to indicate how the intruders entered the Lidcombe Power Centre, only noting that "they used our trolleys to smash our front door in." Georgia Hall responded at 8.29am referring to previous discussion in relation to contacting police and checking missing merchandise and possible damage. Ms Hall's email is sent over the address: "Spotlight Pty Ltd Level 6, 111 Cecil Street, South Melbourne 3205." It was copied to the same officers as Janet's email, presumably being other Spotlight staff. At 9.58am a copy was sent to Gerald James and Richard Stanwix, senior officers with Business Protection. Gerald James was the managing director of Business Protection. Richard Stanwix was the chief executive officer of Business Protection. Marie O'Donnell, to whom Ms Hall's email was also sent, was described as "BPg's Business Manager" in a scope of works document prepared for SPG Investments. 1. At 11.58am on 10 February 2010, Mr Stanwix sent an email to Marc Thompson and Gerald James. Marc Thompson was the Centre manager employed by O'Brien at Lidcombe Power Centre. As noted above, O'Brien was the asset manager appointed by SPG Investments to manage Lidcombe Power Centre. Mr Stanwix' email commenced in terms from which it can be inferred that Mr Thompson already knew about the break-in: "Marc, The break in occurred 'over' an roller shutter. … The site security will have all the reporting paperwork and Centre Manager/Asset Managers have been advised by centre security. I have reviewed the closing and patrolling procedures performed by the security officers and all is fine. The issue will be with the gap on top of the roller door which you will need to assess and make arrangements." 1. Senior counsel for SPG Investments on the appeal, acknowledged that the reference to "Centre Manager/Asset Managers" was a reference to O'Brien. It should be inferred that "you" in an email to Mr Thompson meant O'Brien. It should therefore be inferred that O'Brien had authority to deal with defects in the security of the building perimeter. It may thus be inferred that the agent appointed by SPG Investments to deal with perimeter security (amongst other matters) had express knowledge of the manner by which the intruders obtained access on 10 February and understood it to be identified by the contracted security firm as an "issue". The appellant submitted that this was sufficient to fix SPG Investments with knowledge of the manner of entry and its responsibility to address the problem. That submission should be accepted. 2. As the appellant further noted, there was material from which a close connection between O'Brien and SPG Investments could be inferred. First, there was in evidence a letter from O'Brien giving the same address as SPG Investments. Secondly, following the incident involving the appellant, Allison Hall sent an email to Mr Thompson at O'Brien, Mr Stanwix and Ms Georgia Hall, reporting on the incident. That email is set out in the extract in [16] above. It may be noted that Ms Hall sent the email as "Asset Manager, SPG Investments". Although Allison Hall's email address was allison@richardobrien.com.au, O'Brien responded to a notice to admit facts denying that it employed Ms Hall in February and March 2010, from which it may be inferred that she was employed by SPG Investments, consistently with the title she used. The address of SPG Investments was level 6, 111 Cecil Street, South Melbourne 3205, the same address as Spotlight in Melbourne, as noted on Georgia Hall's email. 3. There was undoubtedly a close relationship between O'Brien, Spotlight and SPG Investments. Importantly, Allison Hall is identified as asset manager of SPG Investments, the owner of Lidcombe Power Centre. It would have been open to SPG Investments to call evidence or, perhaps, tender documents which could have demonstrated a division in the management arrangements between it, O'Brien and Spotlight. It did not do so. In the absence of such evidence the Court can comfortably infer that the chain of emails with respect to the February break-in, which undoubtedly went to senior management in O'Brien, actually made known to senior management in SPG Investments the circumstances of the break-in. On either basis (actual knowledge, or knowledge of its agent), and contrary to the finding of the trial judge, SPG Investments was aware of the weakness in physical security prior to 17 March 2010. 4. If further support be needed, it may be found in the incident reports for the month of February 2010. First, there was an incident report for 10 February 2010 in the terms set out at [81] above, which expressly identified the appellant as being involved. This entry was revealing as to the practices adopted by security officers in the case of an incident. No criticism was made of Dynamite Security, or the appellant, on the basis of steps taken on the morning of 10 February 2010. 5. There were three further incidents in February. Two involved damage to vehicles in the basement car park; the third involved a theft of property from the Dick Smith store. All three incidents were reported to Allison Hall. With respect to the vehicle damage cases, a summary of the reports stated that the cause of the damage had been identified as a part of the basement car park where "liquid drips from the roof on to the car and damages the paint." The summary ended: "Allison Hall has been made aware of this and is taking necessary action to fix." 1. Even if SPG Investments had not actually been aware of the incident in February 2010 and the mechanism by which the intruders obtained entry (contrary to the finding above), I would be satisfied that they ought to have been aware of the absence of a physical barrier preventing entry over the roller door. It may be inferred from the security experts' joint report that the taking of reasonable care to prevent entry to the premises, which would no doubt have protected tenants' property, as well as limiting the risks to security staff, should have been identified through a security check. Further, the experts were satisfied that the problem was capable of ready rectification in a manner sufficient to dissuade intruders from attempting such access, namely the temporary fixing of wire mesh, whilst considering a more permanent structural solution. The cost estimate was challenged by SPG Investments as not a matter about which security experts could usefully opine. The question of expertise in this respect is beside the point; there is no reason to suppose the estimate of $5,000 was not realistic. That order of cost was not disproportionate to the risks involved; it was of the same order, no doubt, as the costs of repairing the smashed door and making good losses involved with the February intrusion. 2. I am satisfied that there was a breach of duty on the part of SPG Investments towards a class of persons which included the appellant. (d) breach – Business Protection 1. The judge made different findings with respect to Business Protection. First, on the basis of the email from Mr Stanwix on 10 February 2010, he was satisfied that Business Protection was aware of the gap over the roller door which had allowed the intruders to enter. [83] He rejected the proposition that Business Protection had not provided adequate training; that finding is not challenged. However, a second finding, in the following terms, was challenged: "[212] 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." 1. It is convenient to note a further passage in the judgment dealing with Dynamite Security. The judge stated: "[250] For the reasons previously stated 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. [251] 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." 1. Given the nature of the duty owed by Business Protection to the appellant, it is necessary to understand what the judge meant by stating that Mr Stanwix' response was "a reasonable one". Based on the evidence relied on by the trial judge, it must be inferred that he had found that sending the email to Mr Thompson of O'Brien on the morning after the February incident was not only a reasonable action, but was a sufficient precaution in the exercise of reasonable care for the appellant (and other security staff). 2. If that were the only step that Mr Stanwix (or Mr Gerald James or Ms Marie O'Donnell) took, that cannot be accepted. What may be accepted is that Business Protection had no power itself to rectify the weakness in the building security. However, reasonable precautions required more than a single email on the morning the weakness was identified as an "issue" which required O'Brien to take action. Business Protection ought reasonably to have undertaken a risk assessment to determine what steps were necessary to alleviate or mitigate the risk and should have advised O'Brien accordingly. If O'Brien had advised that such steps would not be taken, alternative action might have been required on the part of Business Protection. However, in the absence of evidence from any of the respondents to indicate that any action was taken at all, after the sending of the email at 11.58am on 10 February, I would be satisfied that there was a failure on the part of Business Protection to take reasonable steps in the exercise of its duty of care. It is significant that the February incident report noted that Allison Hall had been contacted in relation to the damage to motor vehicles and was taking "necessary action to fix." No such follow up was noted with respect to the break-in on 10 February. Business Protection was in breach of its duty of care to the appellant. 3. In this Court, Business Protection took a stronger position than that taken by the trial judge. By its notice of contention it alleged that "a reasonable person in [its] position would not have taken any precautions to prevent any unauthorised entry by intruders on to the premises, including by eliminating the gap above the roller shutter doors." [84] That contention should be rejected. (e) breach – Dynamite Security 1. The judge's finding with respect to Dynamite Security has been set out above. There is no doubt that Dynamite Security was well aware of what happened on 10 February 2010. The incident report describes its supervisor on site, Bill Morris, as having been contacted immediately security staff became aware of the incident. There was also evidence given by the appellant that he and Mr Morris had sat down to go through the CCTV footage the following day. [85] 2. There was no evidence from any person on behalf of Dynamite Security. There was no other source of evidence identified in this Court which might have suggested that Dynamite Security took any steps at all with respect to the risk identified by the 10 February break in. There was no basis to consider that the appellant's employer had any lesser an obligation in respect of a duty to protect him from violent intruders than did Business Protection. It is apparent that, if Business Protection was in breach of its duty, which the trial judge considered was analogous to that of an employer, Dynamite Security was also in breach. Causation 1. The question of causation may be dealt with on a common basis with respect to all three respondents. As has been noted, the trial judge did not deal with this issue, having found either no duty of care owed, or, if a duty were owed, no breach. On the appellant's case, the question of causation was straightforward. If steps had been taken to prevent the intruder obtaining access to the Centre over the roller door, the confrontation would not have occurred and the injury would not have been suffered. Absent some countervailing contention, that position should be accepted. 2. The primary argument raised in opposition to that conclusion was the contention of the first respondent, SPG Investments. Its submissions in this respect had two limbs. The first involved a factual element identified in the following terms in the written submissions: [86] "The appellant could have been injured in the same or similar way by the intruder if the gap above the fire stair had been sealed. The nature of the appellant's duties could just as easily have caused him to encounter the intruder whilst he was still on the forecourt area or whilst he was locking the gates, or if the intruder gained access by any other means. The intruder was obviously a determined and well-prepared criminal, armed with an axe, who was intent on gaining entry into the premises by one means or another. The fact that he was armed with an axe indicates his preparedness to break into the premises. Whatever he did would inevitably have come to the attention of the appellant as he monitored the premises from the security room." 1. With respect, this was largely speculation. The intruder did not use the axe to obtain access to the Centre, nor can it be inferred that he intended to do so. If any inference can be drawn it is that he was heading to the Dick Smith store and intended to gain access to that retail outlet with the axe. Further, the fact that an assault could have occurred at some other time and by the gaining of access by some other means does not lead to the conclusion that the particular means adopted in the present case were irrelevant. Different circumstances would have raised different questions as to whether one or all of the respondents was negligent and in a way causative of the harm suffered. 2. SPG Investments sought to obtain a legal foundation for its submission from the reasoning of two members of the High Court in Modbury Triangle. The first passage appeared in the judgment of Gleeson CJ: "[39] The issue of causation in the present case arises in circumstances where the objective facts are not disputed, and there is no question about physical cause and effect. The direct and immediate cause of the injuries was the conduct of the three attackers, who were acting independently of the appellant. The conclusion that, if the car park lights had been on, the three men would not have attacked the first respondent, may or may not be dictated by common sense. Let it be supposed that it is correct, or at least not such as to warrant interference by this Court. In a case such as the present, it is difficult to see what further role common sense can play. The answer to the question whether, upon that hypothesis, the appellant's omission was a cause of the first respondent's injuries depends upon the view that is taken of the appellant's responsibilities. On the view adopted at first instance, and in the Full Court, the answer may be in the affirmative. But on the opposite view, a different result follows. [40] In Environment Agency v Empress Car Co Ltd, [87] Lord Hoffmann discussed the problem of applying common sense notions of causation in cases involving the intervention of third parties or natural forces. He gave an example of a theft of a car radio, and pointed out that the question whether conduct of the car owner was in some way a cause of the loss might depend upon the view that was taken as to the extent of his responsibility to take care of his property. So it is in the present case. The finding on causation adverse to the appellant can only be justified on the basis of an erroneous view of the nature of the appellant's duties as occupier. On an accurate legal appreciation of those duties, the appellant's omission to leave the lights on might have facilitated the crime, as did its decision to provide a car park, and the first respondent's decision to park there. But it was not a cause of the first respondent's injuries." 1. This passage is not to the point. As the Chief Justice noted in raising the issue of causation: "[37] The case provides an illustration of the interrelationship that sometimes exists between questions of legal responsibility and causation." In other words, the issue of causation depended, as the Chief Justice stated at [40], on the correct view of the nature of the occupier's duties, a matter that had been separately addressed with the following conclusion: "[36] The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land." The passages relied upon do not support the proposition that there was no causation because the claimant might have suffered the injury in any event. 1. The second passage relied upon, from the judgment of Callinan J, was as follows: "[150] … Assumptions about dictates of common sense can often be dangerous. It by no means strikes me as a matter of common sense that the absence of the relevant lighting in this case made the attack here inevitable, or caused, or indeed even invited it. The plans of the centre which were tendered showed that it would have been a very simple matter for the assailants to have concealed themselves behind the wall in front of the chemist shop or the bank, and possibly shrubs, and in other places, or behind the first respondent's car. … [152] In the circumstances, I do not consider that the absence of lighting caused, or in any material or significant sense, increased the risk of injury to the first respondent. [88] [152] What strikes me as very likely, and at least as likely as the competing inference, is that the assailants, having brought their bat with them to commit an assault, would not take it home without first using it for that purpose, lighting or not. In short, in my opinion, the respondents' case should have failed on the issue of causation as well as the issue of duty of care." 1. Although the first limb of the contention reflected this reasoning, the underlying premise is different. In Modbury Triangle no duty was established; nor, in the present case, did the intruder bring the axe to attack a person. 2. The second limb of the contention was based upon a passage in the judgment of Applegarth J in the Queensland Court of Appeal in Westpac Banking Corporation v Jamieson. [89] The passage in question should be set out in full: "[102] A court may refuse recovery of all or part of claimed losses, despite, as a matter of incontrovertible fact, the defendant's conduct being a cause of the loss, in the sense that the loss would not have occurred but for the defendant's conduct. Sometimes this occurs because the losses were incurred beyond a certain date. In other cases it is because the losses are characterised as too remote or not foreseeable. In some cases the loss, although having been caused as a matter of historical fact by the defendant's conduct, will not be recoverable because extreme or unreasonable conduct by the plaintiff occurs, such that the court concludes that the defendant's conduct should be found not to have 'caused' the plaintiff's loss. In other cases, recovery of all or part of claimed losses may be denied because of a supervening factor. In each of these cases the court limits the recovery of losses on the basis of a judgment about the appropriate scope of legal responsibility, not on the basis of an enquiry into historical fact." 1. This passage was addressing the equivalent of s 5D(1)(b) of the Civil Liability Act, dealing with the "scope of liability", as opposed to factual causation. Jamieson was a case far removed from the present; it involved claims for damages for negligence (and other causes of action) deriving from inadequate financial advice in relation to investment opportunities. Having found that factual causation was established, the Court considered whether there was any reason to limit the scope of liability and concluded that "[t]here is no principle, and no consideration of justice and equity, why the Bank should not be legally responsible for the loss which its breaches caused." [90] The passage from the judgment set out above appears in a generic statement of principle, before focusing upon the requirements of the Queensland equivalent of s 5D(1)(b), at [104]. It is necessary to look at the factual circumstances relied upon by SPG Investments in order to identify whether they properly fall within the scope of considerations to be considered under s 5D(1)(b). Those factors have been set out above. In my view they provide no reason why, if factual causation be established, SPG Investments should not be held liable. 2. By way of contrast, Business Protection provided submissions in support of a relevantly identical contention commencing with the proposition that responsibility lay with SPG Investments, and not with Business Protection. 3. The first limb of Business Protection's contention was that even if SPG Investments did not have the relevant knowledge of the February incident, it should not be held that Business Protection "should have done more to ensure SPG had actual knowledge of the gap … because even with perfect knowledge of it, and of Capar's allegation that it was causative of his grief, SPG did nothing." [91] 4. The submission should not be accepted; first, on the basis that it goes to breach rather than causation. Secondly, there was no evidence adduced by Business Protection that it had taken all reasonable steps to have SPG Investments remove or mitigate the risk, so that it cannot assert that had it done so, no steps would have been taken. 5. The second limb of Business Protection's contention was a variation of that put forward by SPG Investments, namely that the appellant could have been assaulted whilst undertaking other activities. These include patrolling outside the perimeter of the building, as required by the operating manual. Further, it was said that an intruder could have reached the first level of the building without scaling the roller door, because "it would be readily accessible by ladder from the ground floor, or by scaling any of the columns and signage infrastructure attached thereto." [92] It was therefore said that "[t]he risk of harm was not created or increased by the presence of the gap." [93] 6. As with the first respondent's submissions, it is unclear whether the submissions were directed to s 5D(1)(a) (factual causation) or (b) (scope of liability): no attempt was made by either respondent to come to grips with the elements of the statutory scheme. If directed to factual causation, as noted above, the existence of a separate risk, whether avoidable or not, does not diminish the fact that a specific risk materialised, which involved a breach of duty. If the submissions were directed to the scope of liability, it was not a sufficient answer to a claim in negligence that the premises had other dangers (whether the result of negligent or innocent conduct was not identified) which could have given rise to criminal activity and resultant harm. 7. There was no reason to deny the proposition that causation was established on the evidence in the present case. Other defences – inherent risk 1. The trial judge upheld a submission on behalf of SPG Investments and Business Protection that the risk faced by a security guard in the position of the appellant was one which "cannot be avoided by the exercise of reasonable care and skill" and therefore the respondents were not liable in negligence for the harm suffered as a result of its materialisation, pursuant to s 5I of the Civil Liability Act. [94] 2. Reliance on s 5I, in circumstances where there was no breach of duty established, was both unnecessary and misconceived. Indeed, at least in a case such as the present, it is doubtful that s 5I serves any independent purpose. The idea that a person could owe a duty of care in respect of a risk which cannot be avoided by the exercise of reasonable care sounds like an oxymoron. It is possible that this is not so because the formulation of the duty and the identification of the risk may occur at different levels of particularity. However, the possibility that a defendant could be held liable for breach of a duty of care in respect of a risk, materialisation of which cannot be avoided by the exercise of reasonable care, is clearly incoherent. In short, s 5I adds nothing to the analysis of breach required to be undertaken pursuant to s 5B. It does not even provide a shortcut to avoid the analysis under s 5B because the condition of engagement of s 5I requires analysis of whether the risk could be avoided by the exercise of reasonable care and skill. 3. In practical terms, s 5I is otiose. It was not recommended in the Final Report, which therefore provides no guidance as to its intended purpose. Contributory negligence 1. Although the trial judge made no finding of contributory negligence, understandably in circumstances in which he found the appellant was solely responsible for his own misfortune, the respondents contend that such a finding should be made if liability were to be upheld. 2. For the reasons outlined above, those contentions should be rejected. The appellant acted entirely in accordance with the expectations of Business Protection and Dynamite Security, as revealed in the emails sent on the following morning. He also acted consistently with that which had been expected of him on the earlier occasion in February 2010 when there had been a break-in. If there was some criticism of his seeking to discourage the intruder by shouting "security here", that conduct was, at worst, a misjudgement in fraught circumstances. The appellant clearly intended to dissuade the intruder from continuing with his unlawful conduct; a purpose which, although the immediate response was a threat to kill, was actually successful. There was no further criminal activity and the intruder fled, before being captured by police. Relief 1. It remains to consider the question of relief. For the Court to address that issue requires it to address and resolve challenges to the judge's assessment of damages. The relief sought in the amended notice of appeal was for a remittal for a new trial "on all issues." However, in the unusual circumstances of the case, that course should be avoided if reasonably possible, for a number of reasons. 2. First, the appellant has established liability for psychological injury suffered more than a decade ago, in the course of an incident lasting a few minutes. The delay, the expense involved in another hearing, and the nature of the appellant's harm militate against such an outcome. 3. Thus, there was no dispute that at the time he gave evidence the appellant was suffering from a depressive illness and PTSD. He had not been employed since the incident in March 2010, a period of more than seven years. Over that period he had obtained treatment from a number of medical practitioners. He had also been using cannabis and alcohol. There was reason to expect cross-examination on two topics, namely his compliance with the operating procedures in place at the time of the incident and, secondly, aspects of his lengthy medical history. Nevertheless, one would expect a degree of sensitivity in the length and structure of the cross-examination. Yet senior counsel for SPG Investments, which may on one view have had less interest in these two issues than other respondents, undertook a cross-examination which covered 222 pages of transcript and ran from day one to day five of the hearing. Cross-examination by the other two respondents covered 28 pages of transcript. As has been noted, some of the questioning was unfair and much was unproductive. 4. It is, of course, difficult for this Court to judge on the basis of a transcript, but there were many passages in which the witness appears to have displayed lack of attention and frustration. However, it is also unclear what assistance the trial judge obtained from observing the witness give that evidence, in circumstances where the plaintiff left the witness box on 22 September 2017 and judgment was delivered on 13 May 2019, some 20 months later. 5. Secondly, it has been possible for this Court to resolve issues relating to liability. Although the trial judge made adverse findings in relation to the knowledge and understanding of the operational documents which formed a major part of the cross-examination of the appellant, and regarded Mr Flanders as a "difficult witness", issues of liability were able to be determined without taking issue with the judge's findings as to credit and reliability, on the basis of other unchallenged evidence and documentary material. It is less clear that such a course is available with respect to the assessment of damages. That is not to say that this Court is not in a good position to understand and evaluate the evidence of the medical experts; the issue arises from the need to make findings as to the appellant's medical history and conduct generally, in so far as it affected his mental illness. The relevant issues fell into two categories. First, there was lengthy cross-examination as to the state of the appellant's mental health prior to the incident in March 2010. That involved taking the appellant through a personal history at least as far back as 1994, when, at age 17, his father murdered his mother, though not in his presence, but in the presence of his siblings. The second set of matters concerned his medical history and conduct immediately following the incident in March 2010 and continuing through his psychiatric treatment and relevant conduct for a period of years thereafter. 6. However, the extent to which a further hearing would be productive of useful evidence in relation to these matters may be doubted. Given his mental illness, there would be issues as to the reliability of any account he gave which would be difficult to resolve satisfactorily in a courtroom setting. There is also the risk that a further hearing might exacerbate any existing condition. 7. Thirdly, for reasons explained below, the Court can undertake the task of assessing damages on the basis of the existing evidential material, both documentary and in the transcript. That exercise can be undertaken without reliance on challenged evidence of the appellant. The cross-examination was based on histories given by the appellant and recounted in medical reports, which histories were objectively erroneous or incomplete. Further, the judge preferred the expert evidence of Dr Lewin to that of Dr Phillips. In many respects, as Dr Lewin noted in his oral evidence, they were in agreement; nevertheless, it is appropriate to disregard the aspects of Dr Phillips' evidence which the trial judge appears not to have accepted. 8. Fourthly, it is clearly in the interests of the expeditious resolution of the remaining issues in the proceedings for this Court to assess damages, if it can do so without material unfairness to any party. Part 6 of the Civil Procedure Act 2005 (NSW) mandates such a course. The evidence as to damages was called and tested in 2017. On the basis of the approach to that evidence identified above, this Court should dispose of the proceedings. Damages 1. An assessment of damages was undertaken by the trial judge, on a contingent basis. That assessment was the subject of a broad ranging challenge in the amended notice of appeal, in the following terms: "The primary judge erred in his assessment of damages, particularly in that he: (a) failed to properly consider the matters arising with respect to damages; (b) failed to give adequate reasons for the assessments made; (c) made impermissible findings as to matters of credibility and reliability; and (d) impermissibility dismissed from his consideration the [opinions] of Professor Phillips, and failed to give adequate reasons for so doing, failed to properly engage with those opinions or those of Professor Lewin and failed to consider the factual evidence when evaluating their evidence; and (e) determined a quantum of damages that was manifestly inadequate and which was contrary to the effect of all of the evidence adduced." (a) key issues in assessment undertaken by trial judge 1. The basis upon which the assessment of damages may be undertaken by this Court involves the acceptance of the judge's findings as to the unreliability of the appellant's evidence as to his medical history. Unreliability was established by reference to medical records. In other words, to the extent that the appellant denied suffering from depression in the period up to early 2005, that denial was rejected on the basis of contemporaneous medical records. The medical records should be accepted as the best evidence as to his condition in that period. 2. The appellant's case was that he did not have significant mental health issues between early 2005 and the incident in March 2010. Again, it was open to the judge to reject the reliability of his account in respect of that period. However, the appellant is entitled to rely upon the absence of medical records demonstrating ongoing psychological problems in that period and is entitled to rely upon his work record to indicate his capacity at that time. Those matters are unaffected by the rejection of his oral evidence. His complaint in this Court is that the trial judge focused only on the rejection of his evidence and failed to have proper regard to the objective material, and to the evidence of his partner at that time Melissa Smith. The appellant submitted that, on a proper assessment of the evidence, he had not suffered from any disabling psychological condition for a period in excess of four years prior to the incident in March 2010. As will be explained below by reference to the evidence, that submission should be accepted. 3. A consequence of the rejection of the appellant's evidence as to his pre-2010 history is that it could not provide the basis for an assessment of his post-2010 condition by a psychiatrist to whom an inaccurate subjective account was provided and who relied upon it in forming an opinion as to the effects of the events of March 2010. On the other hand, a psychiatric opinion based upon objective evidence as to the pre-2010 situation could be relied upon by the Court in assessing the effects of the March 2010 incident. (b) pre-2010 medical history 1. The trial judge set out the appellant's background and history, particularly in the period from his mother's death in 1994 until January 2000. [95] As to that period, the appellant's account in cross-examination, recorded by the trial judge, was largely consistent with the medical records, subject to one qualification: the appellant denied that in 1997 he was using marijuana to "an excessive degree". He agreed that he was still taking marijuana "occasionally, on a social basis". [96] Relying on a 1997 medical note, "withdrawal from marijuana", the judge inferred that there was "more than occasional use." [97] 2. The appellant saw Dr Robin Haig, psychiatrist, at Campbelltown in December 1999. The judge noted Dr Haig's report that the appellant "did not appear to be seriously depressed", [98] although on 14 January 2000 Dr Summers, a general practitioner, issued a medical certificate identifying "major depression". Nothing turned on that discrepancy. The appellant agreed that from the period from 1994 to the end of 1999 he was suffering from "severe depression", but was "working through it." [99] 3. The appellant gave evidence that he was working as a transit officer on the trains at the time of the Olympic Games in 2000. He also said that he obtained his security licence in 2000, in classifications 1A, 1B and 1C. [100] He had a number of jobs as a security officer. [101] 4. Because it appeared that counsel was cross-examining from later medical records, there was no chronological consistency in the cross-examination. The discussion of work as a security officer jumped from 2000 through to 2009, before abruptly returning to medical consultations in 2004. [102] He was asked about consultations in May 2004 which he said he could not recall. Following an adjournment, the cross-examiner returned to February 1996, and marijuana usage, questioning him about the anti-depressant Aropax. [103] There was a lengthy cross-examination about the interview with Dr Haig in December 1999 and eventually the cross-examination returned to May 2004. [104] 5. The appellant was adamant that he was not taking medication for depression in or around 2004-2005 and did not recall consultations with three separate medical practitioners in May and June 2004. When asked whether he saw Dr Summers on 7 January 2005, with continuing depression, he said "I don't believe so." He believed he was "completely normal" at that time. [105] The trial judge noted that "those denials are not consistent with the objective evidence." [106] The records of consultations for depression, and the prescription of anti-depressants, in that period is to be accepted and the appellant's inconsistent oral evidence rejected. 6. The cross-examination, after some false starts, then moved forward to an unidentified time in 2007 when he started going to Bonnyrigg Family Medical Centre. The judge recorded: "[285] 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." 1. The trial judge then recorded certain views of the appellant's evidence, before turning to consider the reports of Dr Phillips and Dr Lewin, who gave expert psychiatric evidence. The findings of the judge with respect to this period were as follows: "[286] 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 [he] 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." 1. There are aspects of this finding which are troubling. The fact that the evidence was "vague" in some respects, was unsurprising. The appellant had, as the judge accepted, "suffered depression after the horrific experience of his mother's death." However, the evidence which was said to be vague related to events which occurred no more recently than 10 years prior to the trial. (The consultations not recalled in 2004 were 13 years before the trial.) Although it was of course true that the trial judge had had an opportunity to observe the plaintiff giving evidence, it is troubling that he concluded that the appellant "regularly, and deliberately, attempted to downplay" aspects of his medical history, without considering the possible effects of more recent episodes of mental illness and drug taking. In any event, nothing turns on the findings as to subjective elements in giving evidence for present purposes. The judge's assessment of those elements of the appellant's oral evidence are accepted. 2. More importantly, the judge took no account of the critical fact that from about January 2005 until the date of the incident, there was no objective evidence of ongoing mental health problems. Nor was it put to the appellant in cross-examination that he had ongoing mental health problems during that period. 3. The judge made a finding in relation to drug use in the following terms: "[287] 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." 1. Stated abstractly, that finding is apt to mislead. The reference to "addiction" was based solely on the word "withdrawal" in Dr Summers' note of 9 January 1998. There was nothing to suggest disabling or addictive levels of use of marijuana thereafter. The cross-examiner did not suggest he smoked marijuana otherwise than on a casual or social basis after December 1999. [107] It is difficult to find any evidence of abuse of alcohol prior to March 2010. The cross-examiner did not suggest any relevant abuse of alcohol in that period. 2. Finally, although the judge noted that Dr Lewin was taken to the evidence of the appellant's former partner, Ms Smith, [108] it was only in that context that the trial judge considered Ms Smith's evidence. It is convenient to set out the passage in which that matter was addressed: "[298] 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. Whilst she was familiar with Dr Summers 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. Ms Smith maintained that in 2005 the plaintiff appeared 'just normal'. In terms of the plaintiff's use of marijuana, Ms Smith that they had 'tried it' but that neither she nor the plaintiff were using it 'like for a regular thing, day in and day out'. [299] Dr Lewin accepted that if Ms Smith's account was an accurate [one], it would be entirely inconsistent with the plaintiff suffering from any form of depressive illness prior to the subject incident. 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." 1. The following observation should be made in respect of those findings. As has been noted, the medical evidence did not demonstrate that the appellant suffered from depressive illness in the period 2006-2010. Nor was it clearly put to Ms Smith that he did. Ms Smith was cross-examined as to their joint drinking and consumption of marijuana in the period from the early part of 2004 through to March 2010. [109] The questions about depression related to the period between late 2003 and 2005. [110] There were a few brief questions in relation to the period 2005-2006. [111] It was not suggested to Ms Smith that he was exhibiting symptoms of depression thereafter. Her evidence in chief was to the contrary. She had stated in an evidentiary statement: [112] "In my opinion Gengiz was extremely happy and mentally fine prior to the accident." The judge was in error in thinking that there was objective medical evidence which contradicted that statement with respect to any period from early 2005. (c) pre-2010 employment history 1. Before turning to the expert reports, it is appropriate to have regard to the pre-March 2010 work history of the appellant. His first employment as a security guard, noted above, was working for Chubb Security as a transit officer during the Olympic Games in 2000. His second evidentiary statement of 8 May 2017 dealt with the period between 2000 and 2007 in the following terms: [113] "During this period, I worked for various security companies including Pros Security Parramatta and another company in Punchbowl. I also did some work caring for a while at "Premier Care". Then I moved back to security. I worked for maybe 3 or 4 security companies in total and performed work at Parramatta Westfield and Government House in Circular Quay." 1. He was cross-examined with respect to some of that work experience to suggest that he was unwilling to stay in one position for more than a few weeks or months and that he left on occasions after a disagreement with management. 2. His first evidentiary statement further noted that from 2007 to 2009 he worked for SMP Security at Sydney Airport, screening passengers and baggage. Between about July 2009 and the incident in March 2010, he worked for Dynamite Security, predominately at Lidcombe Power Centre, but also at another location. Although this work history was by no means indicative of steady employment, it is clear that he had spent some nine months in the job he held in March 2010. 3. Further, to the extent that the psychiatrists considered that previous trauma rendered him susceptible to further disorders, it is significant that he was involved in the February 2010 incident without apparent harm. There was no evidence of any work-related issues arising between him and Dynamite Security, prior to the event on 10 March 2010. These circumstances were not adverted to by the trial judge in forming a view as to the effect of the March incident on his mental health. (d) conclusions of trial judge 1. It is convenient to identify the end point of the judge's assessment of his medical condition resulting from the incident. After considering the evidence of Dr Phillips and Dr Lewin, the judge reached the following conclusions: "[301] 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." 1. There are two aspects of Dr Lewin's evidence which should have affected these conclusions. First, the concession made by Dr Lewin, based on the evidence of Ms Smith, should have been taken into account; as has been noted, it was wrong to reject Ms Smith's evidence on the basis explained by the trial judge. In fact, Dr Lewin's concession was appropriate. However, it is helpful to set out the critical question and the answer given: [114] "Q. On the assumption that Mr Capar was not incapacitated for his employment by reason of alcohol and/or marijuana prior to the occurrence of March 2010, you would accept, would you not, that the trigger for his incapacity was the onset of the post-traumatic stress disorder and depressive illness and his response to that condition? A. Your Honour, am I forced to give a 'yes/no' answer, because I'm a little uncomfortable with that. … A. The answer to the proposition you put to me is clear. The time sequence is convincing. But that leaves out other factors that need to be considered. I think there's a high likelihood that he had a prior trauma reaction. I don't need to go into a whole lot of that. I think we accept that there's a good deal of vulnerability and Dr Phillips and I agree that someone with a prior experience of that sort of nature is probably more susceptible to a trauma reaction later on such as in 2010. The answer to the question is also guided by my clinical experience. I think it highly likely that with those vulnerability factors being considered that Mr Capar was using alcohol and/or marijuana at various times as you say, as an emotional crutch or some aid in coping, keeping it together, whatever." 1. The evidence that Mr Capar was susceptible did not deny the causal connection between the incident in March 2010 and the post-March 2010 psychiatric conditions. The question of causation was noted by the trial judge in the following passage: "[297] 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. 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'." (e) findings as to disability 1. The judge's conclusion as to "a degree of" chronic post–traumatic stress disorder (he did not refer to the depressive condition) appears to have been greatly qualified by the finding as to marijuana use. That appears from the allowance of past economic loss for a total period of 6 months. This reasoning may have found support in Dr Lewin's primary opinion, expressed in a report prepared in December 2013 in the following terms: "I considered the question of whether these events [of 10 March 2010] satisfy the first diagnostic criteria with regard [to] Post Traumatic Stress Disorder. Based on those facts, it is reasonable to conclude that he could have felt fearful or terrified. Mr Capar currently describes a range of reactive systems of depression and anxiety. Those symptoms occur against the background of a far more severe problem of substance use. He described almost daily use of marijuana in relatively large quantity. Those quantities are certainly sufficient to give rise to a pattern of chronic intoxication with marijuana. Mr Capar described the onset of substance use prior to the events of March 2010. In my opinion, the primary diagnosis is a physical diagnosis. Mr Capar is dependent upon marijuana. This explains many of his symptoms, including his vague presentation, his undue suspiciousness and a dysphoric disturbance of mood. Similar comments could be made with regard to the ongoing pattern of abuse of alcohol. Based upon the history reported by Mr Capar, I found evidence of dependence upon marijuana, abuse of alcohol, chronic Post Traumatic Stress Disorder and a Depressive Reaction." 1. Dr Lewin's description of use of marijuana was expressed in the present tense and related to post-2010 conduct: "Mr Capar smokes marijuana to the point of intoxication at least 3 to 4 times per week. He described using between 10 and 15 'cones' with a bong. He has used marijuana continuously, with no period of abstinence, since 2010. He described himself as a regular but somewhat more intermittent marijuana user for at least several years prior to the assault in the workplace. … He described himself as a person addicted to marijuana." 1. This account of marijuana use was consistent with the appellant's own evidence and that of his former partner, Ms Smith. What was not apparent from Dr Lewin's description was the far more limited usage prior to the incident in March 2010. His acceptance in cross-examination of the link between the appellant's decline to being unemployable and his addiction to marijuana after the March 2010 incident, by way of contrast with his use of marijuana before the incident, as intermittent and involving far lower quantities, involved an important qualification of his initial opinion. 2. The underlying principle to be applied in relation to assessment of damages depends on the application of the so-called "eggshell skull" (or "egg-shell psyche") rule, which applies equally to physical conditions and psychiatric illness, such as post-traumatic-stress disorder. [115] There was no relevant history of mental illness immediately before the incident, or indeed for some years before the incident. Further, although there was evidence of consumption of alcohol prior to the incident, it was not at a level which allowed a finding that abuse of alcohol was disabling in any relevant sense. There was evidence of pre-March 2010 intermittent use of marijuana on a reasonably frequent basis, but it was apparent that that use had escalated to the level of an addiction and become physically disabling post-March 2010. However, the causal connection between that use of marijuana and the incident in March 2010 is, as Dr Lewin accepted, "convincing." (f) findings – economic loss and expenses 1. In terms of economic loss, the judge was entitled to take into account the irregular work history prior to the incident. The appellant gave evidence that he was passed over for some forms of work because of his small stature, which was unattractive to employers of security guards for some kinds of work. It was also appropriate to take into account the casual and irregular nature of his employment, and the fact that he tended to move from one job to another. 2. On the other hand, the diagnoses of chronic post-traumatic-stress disorder and depressive disorder indicated permanent conditions. Dr Gertler, who assessed his degree of permanent impairment for the purposes of worker's compensation, accepted the impairment as permanent and quantified it as 22% of whole person impairment. (Those findings were not affected by the inadequate pre-March 2010 history he was given.) Dr Akkerman, psychiatrist, made a similar assessment in December 2011. In 2016 Dr Phillips quantified his level of whole person impairment as 24%. Dr Phillips did not foresee him being able to find and hold an appropriate job in the open workforce. 3. The appellant's written submissions asserted that there was "obvious difficulty" in "unravelling" matters related to the March 2010 incident and prior psychiatric difficulties. However, the appellant submitted that the hypothetical assessment should be adjusted for vicissitudes. 4. Subject to questions of onus of proof, which do not arise in the present case, that approach is consistent with the fixing of damages for economic loss pursuant to s 13 of the Civil Liability Act. The first step, as noted by the trial judge, is to identify the assumptions about future earning capacity by reference to the claimant's "most likely future circumstances but for the injury": s 13(1). The judge stated that he could not be satisfied that but for the injury, the appellant "would have continued to work as a security officer." [116] I do not understand the judge to have thought he would have had some other form of employment, but rather that he was rejecting the proposition that there would full-time, continuous employment. The judge noted that the prior history consisted of positions which were "part-time, casual or intermittent", and considered that to be the most likely form of employment in the future. That assessment should be accepted; there is no reason to reject the proposition that, but for the accident, he would have continued to work as a security guard. 5. There is also no doubt that such employment would put him at risk of either witnessing or being subjected to traumatic incidents. It follows that there is a significant possibility that he would at some stage have suffered a further trigger of the kind to which he was undoubtedly susceptible, resulting in unemployability. Pursuant to s 13(2), it would be appropriate to adjust the amount of damages for future economic loss (and past economic loss) by 50%. The two elements of economic loss must, of course, be undertaken separately, to allow for the calculation of the present value of future economic loss, in accordance with s 14 of the Civil Liability Act. 6. The primary judge accepted that the appellant's pre-injury net weekly wages were $680. On the basis of a calculation undertaken as at the date of judgment in the court below, it will be necessary to adjust the plaintiff's schedule of damages to take account of a longer period of past economic loss, and a shorter period of future economic loss. Further, the schedule calculated annual indexation for past economic loss at 2.5%. It is not clear that there was evidence to support that figure in relation to the security services industry, or at all. In the absence of evidence, the annual increments should be reduced to 2%. Future economic loss should be calculated by reference to anticipated retirement at age 67. 7. The judge allowed for past treatment expenses in an amount of $34,161.30. That figure is not challenged. The judge allowed a figure for future treatment in an amount of $25,000, assuming the need to unravel treatment resulting from matters, such as marijuana use, extraneous to the injury. For the reasons set out above, in my view that unravelling is only partly appropriate. The plaintiff's schedule claimed fortnightly attendances on a general practitioner and a continuation of the anti-depressant medication, the latter being calculated at $50 per week. Those two figures were $35,640 and $47,520 respectively. A further $5,000 was proposed in respect of future referrals for specialist treatment. The total for future treatment expenses claimed was thus $88,160. 8. Given the acceptance by the psychiatrists that the appellant suffers from a chronic post-traumatic-stress disorder and a major depressive condition, the nature of the proposed treatments is not inappropriate. Counselling services have been used in the past by the appellant and might well be found to be valuable in the future. However, the frequency of visits to a general practitioner appears to be overstated. I would allow an amount of $75,000 for future treatment expenses. 9. Given the slightly extended period, the reduced increments and the 50% reduction, the award for past economic loss is likely to be in the order of $150,000 and the award for future economic loss perhaps a little below $300,000. The actual figures, together with an allowance for superannuation and Fox v Wood damages, should be calculated and, if possible, agreed by the parties. If further calculation or assessment is required of the Court, that will be done by way of written submissions with no further oral hearing required, unless the Court is persuaded that a further oral hearing would be the most efficient way of resolving any outstanding problems. (g) non-economic loss 1. That leaves a question as to the calculation of non-economic loss. The judge allowed an amount calculated as 22% of a most extreme case, in accordance with s 16 of the Civil Liability Act. However, on the assumption that the judge underestimated the seriousness of the contribution of the March 2010 incident to the appellant's mental health, that figure should be increased. The appellant submitted at trial that it should be in the range 40%-55%. However, some allowance should be made for the fact that pain and suffering of the kind now faced by the appellant may have been suffered in non-tortious circumstances in any event. In my view it is appropriate to increase the amount for non-economic loss by approximately one-third, namely to 30% of a most extreme case. Apportionment 1. The parties did not address the question of apportionment. There should be an opportunity for further written submissions on this issue. However, some indication should be given in the hope that a common position can be agreed. 2. Because the reasonable precautions which would have avoided the materialisation of the risk involved a minor alteration, at least on a temporary basis, to the structure of the Centre, primary responsibility lay with SPG Investments. Arguably it should bear something in the order of 50% of the liability for the appellant's loss. 3. The remainder must be divided between Business Protection and Dynamite Security. Although an employer will, in fixing a safe system of work, bear the primary responsibility for employee safety, the fact that Business Protection was the party contracted by the owner to provide security services at the Centre, and consequently laid down the relevant processes and procedures to be followed by security staff, demonstrates that it also bears a significant level of responsibility. However, it was not those practices and procedures, nor the system of work, which ultimately failed the appellant. As has been explained, both Business Protection and Dynamite Security had a responsibility to pursue with the owner of the Centre the need for alterations to the physical structure. The responsibility for taking that step may, in broad terms, bear equally on each. 4. There will be further calculations required as to the assessment of damages as against the third respondent (on behalf of Dynamite Security), and any necessary adjustments pursuant to s 151Z of the Workers Compensation Act. The parties will have leave to make further submissions in relation to that issue, if there remains any outstanding matter in dispute. Conclusions 1. The appeal should be allowed and the judgment below set aside. Each respondent owed (or represented a party which owed), and was in breach of, a duty to the appellant to take reasonable care for his safety whilst working as a security guard at the Centre. The various breaches of duty contributed to the psychological harm suffered by the appellant as a result of being threatened by the intruder on 10 March 2010. The appellant was not contributorily negligent. He is entitled to recover damages from each respondent. 2. It is not possible to make final orders at this stage. The parties should be directed to identify issues which cannot be resolved by agreement and advise the Court accordingly. The matter will then be listed before the Registrar for such further directions as may be required. 3. The Court should make the following orders and directions: 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: 1. the quantum of damages payable by each respondent; 2. the apportionment of liability between the respondents; and 3. final orders to dispose of the proceedings. 1. 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. 1. McCALLUM JA: I agree with Basten JA. 2. EMMETT AJA: Introduction This appeal concerns a claim for damages by the appellant, Mr Gengiz Capar, against the three respondents, SPG Investments Pty Ltd (SPG Investments), Business Protection Group Pty Ltd (Business Protection) and the Workers Compensation Nominal Insurer (the Insurer), which is the workers' compensation insurer of Dynamite Security Protection Services Pty Ltd (Dynamite). Mr Capar's claim arises out of psychiatric injury that he suffered as a consequence of being threatened by an intruder on premises known as "the Lidcombe Power Centre" (the Premises), where Mr Capar was employed as a security guard. The incident occurred in the early hours of 17 March 2010, when an intruder on the Premises threatened him with an axe. The Premises were owned and operated by SPG Investments. w 1. Mr Capar sued SPG Investments, Business Protection and Dynamite in the Common Law Division of the Supreme Court, claiming damages on the basis that his psychiatric injury was the result of a breach of the duty that each of those defendants owed to him. Dynamite was deregistered on 7 December 2013 and the Insurer is sued as the entity liable to indemnify Dynamite. 2. On 13 May 2019, for reasons published on that day, a judge of the Common Law Division (the primary judge) directed the entry of verdict and judgment for each of SPG Investments, Business Protection and the Insurer. His Honour also dismissed cross-claims brought by SPG Investments and Business Protection. By amended notice of appeal of 2 June 2020, Mr Capar appeals from the orders made by the primary judge. 3. I have had the considerable advantage of reading in draft form the reasons of Basten JA for concluding that the appeal should be allowed. Unfortunately, I have the misfortune to disagree with the conclusion reached by his Honour on a critical aspect of the appeal, namely, whether there was a breach by SPG Investments, Business Protection or Dynamite of a duty owed by any of them to Mr Capar. I have concluded, for reasons that follow, that there was no breach of any duty owed to Mr Capar. Apart from that difference, I agree with the other conclusions reached by Basten JA. Background 1. During 2009 and 2010, Mr Capar was employed by Dynamite as a night-time security guard. Dynamite had entered into contractual relations with Business Protection, whereby Dynamite provided Business Protection with labour in the form of security guards. The security guards, including Mr Capar, were required to attend to their duties at the Premises. SPG Investments had entered into contractual relations with Business Protection whereby Business Protection provided security services at the Premises. Mr Capar's duties required him to man the Premises alone when they were closed at night. He was required to perform patrols of the Premises both internally and externally and had various other responsibilities. 2. During Mr Capar's evening shift of 9 and 10 February 2010, two intruders gained entry into the Premises by climbing over a roller shutter that protected one of the fire stairs in the Premises. Mr Capar investigated the intrusion and found that the intruders had smashed their way into a store in the Premises, stole merchandise from the store and decamped. There was no evidence that the intruders were apprehended. 3. The break-in in February 2010 was reported to the police and was the subject of various emails on the following day between persons involved in the control and management of the Premises. There was a question as to the capacity in which those various persons received the emails. In the course of the emails, the gap above the roller shutter, through which the intruders entered the Premises, was identified as a security weakness. However, nothing was done to rectify the weakness. 4. In the early morning of 17 March 2010, while attending to his duties alone at the Premises, Mr Capar observed, on the security camera in the security room that he occupied, a man with a duffel bag outside the Premises. The man ran in the direction of the roller shutter where the break-in had occurred in February 2010. That area was out of sight of the camera. Mr Capar left the security room, went up the escalators to a higher level of the Premises and stood there waiting to see whether anybody had entered. Mr Capar observed the man that he had seen on the security camera and called out "security". The man raised an axe and threatened to kill Mr Capar. Mr Capar turned and ran back to the security room and immediately called the police and his supervisor. The intruder then left the Premises but shortly afterwards was apprehended by police and charged with offences to which he pleaded guilty. As a result of the sudden shock that Mr Capar experienced when threatened, he suffered psychiatric injury. Mr Capar's Claims 1. In his second further amended statement of claim filed on 18 September 2017, Mr Capar asserted that SPG Investments was the owner and occupier and had the care, control and management of the Premises and had entered into contractual arrangements with Business Protection. He asserted that SPG Investments, as the owner and occupier of the Premises, being responsible for their care, control, and management, owed a duty to all persons who were lawfully on the Premises to exercise reasonable care for the safety of such persons. 2. Secondly, Mr Capar asserted that, having regard to the purpose for which and the circumstances in which he was on the Premises, SPG Investments owed him a more generalised duty of care, arising from its position as occupier, in relation to any risk of injury to which he might have been exposed whilst on the Premises. Finally, Mr Capar asserted that, in the light of the incident of February 2010, the duty of care owed to him by SPG Investments extended to taking reasonable care to protect any security guard, who was in attendance at the Premises when they were closed, from risk of injury following upon the unauthorised entry onto the Premises by any person, where such entry was gained by means of climbing over the roller door. 3. Mr Capar also asserted that, by reason of its contractual arrangement with SPG Investments, Business Protection was also an occupier of the Premises and owed a duty to exercise reasonable care for the safety of persons who were lawfully on the Premises. He also asserted that, having engaged Dynamite to discharge its contractual obligations to SPG Investments, Business Protection owed Mr Capar a duty of care that was analogous to that owed by an employer to an employee, including a duty to exercise reasonable care in the provision of a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same allegation against Business Protection as he made against SPG Investments in relation to unauthorised entry gained by way of the roller door following the February incident. 4. Mr Capar's claim against the Insurer was that, in circumstances where Dynamite employed him as a security guard and, together with Business Protection, directed him to attend at the Premises and undertake security services there, Dynamite owed him a non-delegable duty to exercise reasonable care for his safety as an employee, including a duty to provide a safe place of work, a safe system of work and safe plant and equipment. Finally, Mr Capar also made the same claim against the Insurer as he made against SPG Investments and Business Protection in relation to unauthorised entry gained by way of the roller door following the February incident. 5. All three defendants put in issue the precise content of the duty of care owed to Mr Capar, there being no dispute that a duty was owed to him. Each disputed that there was any breach of the duty that it owed to Mr Capar. Each also disputed that Mr Capar's psychiatric illness was caused by any breach of duty on its part. The Civil Liability Act 1. The Civil Liability Act 2002 (NSW) (the Civil Liability Act) does not prescribe the circumstances under which a duty of care arises. However, it imposes constraints on the existence of a duty of care in particular circumstances. The only injury suffered by Mr Capar was mental harm. Accordingly, s 32 of the Civil Liability Act was relevant. Under s 32(1), a person (defendant) does not owe a duty of care to another person (plaintiff) to take care not to cause the plaintiff mental harm unless 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. Relevantly for the purpose of s 32, the circumstances of the case include whether or not the mental harm was suffered as the result of a sudden shock and whether or not there was a pre-existing relationship between the plaintiff and the defendant. However, s 32 does not require the Court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. That provision does not appear to have any application in the present case. 2. Section 5I of the Civil Liability Act relevantly provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. Section 5G relevantly provides that, in determining liability for negligence, the claimant is presumed to have been aware of an obvious risk. SPG Investments and Business Protection both relied on both provisions. Duty of Care 1. The primary question is whether the duty of care owed to Mr Capar by any of SPG Investments, Business Protection and Dynamite extended to preventing unauthorised entry into the Premises after hours by an intruder who might, by his actions, cause injury to Mr Capar. Much of the evidence and argument focused on the incident in February 2010, when the two intruders entered the Premises by climbing over the roller shutter in the same way as it appears that the intruder who threatened Mr Capar climbed over on 17 March 2010. There was no suggestion that, prior to the incident in February 2010, any of the parties was aware or had reason to be aware of the possible security defect constituted by the gap between the top of the roller door and the ceiling above it. Essentially, Mr Capar asserted that, because SPG Investments, Business Protection and Dynamite were aware of that defect in the security, they had a duty to Mr Capar to eliminate it. There is considerable dispute as to which of SPG Investments, Business Protection and Dynamite had knowledge of the security deficiency. It is convenient to consider the matter first on the basis that each had relevant knowledge. 2. It was common ground that SPG Investments owed a duty of care to Mr Capar. On one view, the concession that SPG Investments owed a duty of care to Mr Capar was sufficient to dispose of the issue on the basis that, if there were a means of access to the Premises, which was not properly secured, SPG Investments had the capacity to take reasonable steps to rectify any lack of proper security in relation to access to the Premises. 3. The duty of an occupier of a building is to take reasonable care for the safety of persons in the building. The question in the appeal was the content of that duty. As the owner of the Premises, SPG Investments had responsibility for the physical elements of the security of the Premises, including doors. The question is whether that duty included providing a secure perimeter during hours when the Premises were not open to the public. More particularly, the question is whether SPG Investments was under a duty to take particular steps in relation to access over the roller door in order to prevent harm to a security guard employed to work alone on the Premises after normal business hours. 4. Mr Capar's case must be that SPG Investments owed him a duty to prevent unauthorised entry into the Premises after hours. It is possible to test Mr Capar's case by considering the position that might have prevailed had the roller door not been present at all. In those circumstances, it would have been possible for intruders to walk up the fire stair in order to gain access to the Premises. On Mr Capar's case, that would have been a breach of the duty owed to him. It may be that SPG Investments owed a contractual obligation to its tenants to afford security. That, however, is beside the point. The question is whether SPG Investments owed a duty to Mr Capar, a security guard employed by Dynamite, whose services were provided to Business Protection, which had contracted to provide security services to SPG Investments. 5. The object of Mr Capar's presence in the Premises was to observe the Premises and, in the event of unauthorised intrusion, to report that circumstance to the police. Clearly, the very fact that Business Protection was retained by SPG Investments to provide security guards indicates an expectation that there may be intruders attempting to gain access to the Premises. It would be curious, therefore, for SPG Investments, as occupier of the Premises, to be held to owe a duty to a security guard, whose function was to report intruders, to take steps to ensure that there were no intruders. I do not consider that SPG Investments owed to Mr Capar the duty formulated above. 6. The claim against Business Protection and the Insurer was based on the assertion that Mr Capar was not provided with a safe system of work. Business Protection disputed that it owed a duty to Mr Capar to provide him with a safe system of work. I shall assume, for present purposes, that it owed the same duty that Dynamite owed to him as his employer. 7. The system under which Mr Capar was required to work enabled him, by means of security cameras, to observe the intruder on the morning of 17 March 2010. Mr Capar's duties did not require him to leave the security room. Had he remained there, there is no reason to doubt that he would have been perfectly safe and would not have been threatened. Nevertheless, Mr Capar left the comfort of the security room in order to ascertain whether or not the person that he had observed on the security camera had in fact gained access to the Premises. He was not required by his system of work to do so. Indeed, it was contended that Mr Capar failed to abide strictly by the instructions of Business Protection as to the manner in which he was to discharge his duties. Thus, by reason of the incident in February 2010, he was aware of the security defect. He hoped that, by making his presence known, the intruder would flee. In fact, the intruder fled without causing any damage to the Premises or stealing any property, but not before making the threat to Mr Capar's life. In the circumstances, I do not consider that there was a failure by Business Protection or Dynamite to provide Mr Capar with a safe system of work. 8. It is not clear how close the intruder came to Mr Capar. The evidence rather suggests that it was not closer than 20 or 30 metres. That, it appears, was sufficient, when coupled with the threat of death with the axe, to cause Mr Capar psychiatric injury. The question that arises under s 32 of the Civil Liability Act is whether SPG Investments and Business Protection ought to have foreseen that a person of normal fortitude might, in the circumstances of this case, suffer a recognised psychiatric illness if reasonable care were not taken. The primary judge concluded that it was not reasonably foreseeable that the intruder might threaten Mr Capar in the way in which he did. His Honour also concluded that Mr Capar's conduct, in drawing attention to his presence, was not foreseeable. The question is whether his Honour erred in those conclusions. 9. It is arguable that the requirement to consider the circumstances of the case is not a requirement to inquire whether the circumstances were reasonably foreseeable but whether, in the circumstances found, a person of normal fortitude might suffer psychiatric illness. Section 32 would be attracted if SPG Investments, Business Protection or Dynamite ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness as a consequence of a breach of duty owed to Mr Capar. 10. Business Protection had no physical presence in the Premises and therefore was not an occupier of the Premises. Its liability turned upon its role, either as an employer or as an independent contractor. Business Protection had not delegated its responsibilities entirely to Dynamite. Rather, it maintained a significant degree of control over the services provided by security guards, including by providing training and instructions through the means of manuals and requiring that security guards comply with instruction manuals prepared by it. Conclusion 1. Those conclusions would be sufficient to dispose of the proceedings. I would dismiss the appeal with costs. ********** Endnotes 1. Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (No 5) [2019] NSWSC 507 ("primary judgment"). 2. Primary judgment at [146]. 3. Primary judgment at [86], [88]. 4. Primary judgment at [151]. 5. Primary judgment at [152]. 6. Primary judgment at [154]. 7. Primary judgment at [194]. 8. Primary judgment at [197]. 9. Primary judgment at [207]. 10. Primary judgment at [208]. 11. Ibid. 12. Primary judgment at [211]. 13. Primary judgment at [212]-[213]. 14. Civil Liability Act, s 5I(2). 15. [2006] NSWCA 45. 16. The judge in fact wrote "are not", but clearly meant "is". 17. Primary judgment at [238]-[251]. 18. Primary judgment at [250]-[251]. 19. Primary judgment at [228]. 20. Peel and Goudkamp at [26-018]. 21. 318 US 54, 69 (1942). 22. Peel and Goudkamp at [26-019]. 23. Commonwealth of Australia, 2002 (Final Report). 24. Final Report, par 8.32. 25. Peel and Goudkamp at [26-023]. 26. Final Report, [8.25], set out at [47]. 27. There was no reference to the worker's compensation legislation. 28. Interpretation Act 1987 (NSW), s 35(1). 29. McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073. 30. [1935] 1 KB 146. 31. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310; Frost v Chief Constable of West Yorkshire Police [1999] 2 AC 455. 32. Ogwo v Taylor [1988] AC 431 at 447 (Lord Bridge). 33. (1967) 116 CLR 383; [1967] HCA 39. 34. (1972) 128 CLR 99; [1973] HCA 12. 35. Caterson, p 111 (Gibbs J). 36. (1961) 106 CLR 112; [1961] HCA 46. 37. Chapman at 120-121. 38. Chapman at 120. 39. Chapman at 119. 40. At the time of the accident the subject of Chapman v Hearse, contributory negligence was no longer a complete defence: Wrongs Act Amendment Act 1951 (SA), inserting s 27a in the Wrongs Act 1936 (SA) (now the Civil Liability Act 1936 (SA)), which commenced on 13 December 1951. 41. (1970) 125 CLR 383; [1970] HCA 60. 42. (2010) 241 CLR 60; [2010] HCA 22. 43. Wicks at [22]. 44. Smith v Baker [1891] AC 325; C Sappideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011), [24.90] (maintaining Prof Fleming's original text). 45. [2007] NSWCA 4; (2007) Aust Torts Rep 81-874, at [70]ff, [90], [93]. 46. Carey at [3] (point not pressed), (McColl JA), [115]-[117] (inappropriate vehicle) (McDougall J). 47. Primary judgment at [61] 48. Primary judgment at [66]. 49. Primary judgment at [44]. 50. Tcpt, 19/09/17, p 117(8). 51. Primary judgment at [48]. 52. Tcpt, p 118(25). 53. Site Operations Manual, clause 31-38. 54. Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler, Nettle and Edelman JJ). 55. Primary judgment at [146]. 56. Primary judgment at [154]. 57. Above, fn 41, at 405. 58. [1967] 1 WLR 912 at 922. 59. Tcpt, 25/09/17, p 420(25). 60. Second defendant's outline of submissions, 21 November 2017, par 2(b)(ii). 61. Primary judgment at [172]. 62. Primary judgment at [177]. 63. (2000) 205 CLR 254; [2000] HCA 61. 64. Primary judgment at [179] referring to Modbury Triangle at [111]-[112] (Hayne J). 65. (1985) 156 CLR 7 at 20; [1985] HCA 3. 66. Primary judgment at [190]. 67. Tcpt, 26/09/17, p 493(23). 68. Tcpt, p 517(40)-(45). 69. Primary judgment at [114]-[128]. 70. Primary judgment at [120]. 71. Primary judgment at [123]. 72. Primary judgment at [124]. 73. Tcpt, p 571(5). 74. Report, 31 July 2013, par 67, set out at [114] of the primary judgment. 75. Tcpt, pp 557(38)-558(25). 76. [2011] NSWSC 1351. 77. Civil Procedure Act, s 61. 78. Civil Procedure Act, s 60. 79. Primary judgment at [207]. 80. Primary judgment at [208]. 81. Primary judgment at [73]-[84]. 82. See the discussion by Basten JA in Optus Administration Pty Limited v Wright (2017) 94 NSWLR 229; [2017] NSWCA 21 at [50]-[52]. 83. Primary judgment at [85]. 84. Notice of contention, 18 May 2020, par 4. 85. Tcpt, 20/9/17, p 182. 86. First respondent's outline of submissions, 15 May 2020, par 24. 87. [1999] 2 AC 22 at 29-31. 88. See Chappel v Hart (1998) 195 CLR 232. 89. [2016] 1 QdR 495; [2015] QCA 50 at [102]. 90. Jamieson at [141]. 91. Second respondent's submissions, 15 May 2020, par 30. 92. Ibid at par 33. 93. Ibid at par 34. 94. See s 5I at [6w] above. 95. Primary judgment at [253]-[278]. 96. Tcpt, p 37(10). 97. Primary judgment at [265]. 98. Primary judgment at [276]. 99. Tcpt, p 42(38). 100. Tcpt, p 41(2)-(24). 101. Tcpt, p 43(25). 102. Tcpt, pp 46-47(28). 103. Tcpt, p 49. 104. Tcpt, p 58(33). 105. Tcpt, p 62(4)-(16). 106. Primary judgment at [284]. 107. Tcpt, pp 53(40)-54(3). 108. Primary judgment at [298]. 109. Tcpt, pp 311(16)-314(20). 110. Tcpt, pp 303(34)-304(25), pp 306(45)-307(35). 111. Tcpt, pp 310(40)-311(15). 112. Evidentiary statement of Melissa Smith, 22.6.17, par 16. 113. Evidentiary statement, 8 May 2017, par 46. 114. Tcpt, p 469(38)-(45), p 471(7)-(17). 115. Pusey at 406 (Windeyer J); Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [117] (McHugh J), [279] (Hayne J); State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 at [40] (Spigelman CJ). The harm must be a recognized psychiatric illness: Civil Liability Act, s 31. 116. Primary judgment at [307]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020