Anderson v Hotel Capital Trading Pty Limited [2005] NSWCA 78

New South Wales Court of Appeal

CITATION: Anderson v Hotel Capital Trading Pty Limited [2005] NSWCA 78

HEARING DATE(S): 17/03/05, 18/03/05

JUDGMENT DATE: 18 March 2005

JUDGMENT OF: Beazley JA at 69; Giles JA at 70; Ipp JA at 1

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - Common law damages - Employer/employee relationship - Breach of duty of care - Insufficient evidence to establish breach. ND

Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18 CASES CITED: Kondis v State Transport Authority (1984) 154 CLR 672

Leif Scott Anderson (Appellant) PARTIES: Hotel Capital Trading Pty Limited (Respondent)

FILE NUMBER(S): CA 41242/03

Dr A Morrison SC/J W Conomos (Appellant) COUNSEL: L King SC/W K Dodd SC (Respondent)

Carneys Lawyers (Appellant) SOLICITORS: Bartier Perry (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20438/01

LOWER COURT JUDICIAL OFFICER: Adams J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41242/03 SC 20438/01

BEAZLEY JA GILES JA IPP JA

Friday, 18 March 2005 LEIF SCOTT ANDERSON v HOTEL CAPITAL TRADING PTY LIMITED Judgment 1 IPP JA: This is an appeal against a decision of Adams J whereby he dismissed the appellant's claim for damages for personal injuries which, the appellant alleged, were caused by the negligence of the respondent. The appellant's claim arose out of a robbery that occurred on 9 June 1998 in the early hours of the morning at the Capital Hotel in Kings Cross. At that date, the appellant had been employed by the respondent for about five weeks as a "night auditor" (night manager) at the hotel. 2 The appellant was forced, at gun-point, to assist robbers in stealing money and safety deposit boxes from the hotel. Before leaving the hotel with the property they had stolen, the robbers taped the appellant around the head, mouth, hand and legs, kicked his ribs hard and stomped on his hand. 3 The appellant contended that, in consequence of this occurrence, he suffered from post-traumatic stress disorder ("PTSD"). He contended that the PTSD compromised his judgment and in consequence he became a heroin user as a form of "self-medication". This led to him taking a heroin overdose on 25 October 1999, as a result of which he suffered significant brain injury. He remained in a coma for some three months and since then has suffered from severe headaches, extreme anxiety and brain damage. 4 At trial, the respondent's defence was based on three propositions. These were: firstly, the appellant was an accomplice of the robbers; secondly, the respondent had not breached the duty of care it owed the appellant; thirdly, the appellant's heroin use was not caused by the robbery. 5 The trial judge was not persuaded that the appellant was an accomplice of the robbers. He found, however, that the respondent had not been negligent and, further, the appellant's heroin use had not been caused by the robbery. 6 The appellant appeals on the following grounds: