Optus Administration Pty Limited v Glenn Wright by his tutor
James Stuart Wright  NSWCA (17 February 2017)
The Plaintiff was a labour hire employee who suffered a serious
case of Post Traumatic Stress Disorder (PTSD) when a co-worker
attempted to kill him.
This is the latest in a long line of unsuccessful damages
claims for injuries caused by the criminal conduct of others.
The Plaintiff was attending a training course operated by Optus
when a fellow attendee (Mr George) left the course and went to an
unauthorised place on the roof balcony of the fourth floor.
The course supervisor found Mr George acting strangely and
reported this to two superiors who went to the roof balcony and
observed Mr George in a trance-like state and repeatedly asking for
the Plaintiff. In an attempt to resolve the problem one of them
asked the Plaintiff to see whether he might be able to calm Mr
The Plaintiff said that he hardly knew Mr George but reluctantly
went to see if he could be of assistance. Mr George then invited
the Plaintiff to look at a car in the car park below, following
which he attempted to lift the Plaintiff off his feet and throw him
over the balcony. One of the superiors intervened to prevent
serious injury but the Plaintiff subsequently developed severe
PTSD. The trial judge had awarded him $3.9 million.
While there was some evidence that one of the supervisors had
described Mr George as "psychotic" the unanimous evidence
was that prior to the assault they had assessed Mr George as being
By a two to one majority, the court upheld the appeal and
dismissed the Plaintiff's claim on the following basis:
While people may have been "apprehensive at the strange
behaviour exhibited by Mr George, it was not predictable that such
behaviour might lead to violence". As such the court found
that the incident was not foreseeable and hence Optus did not owe
the Plaintiff a relevant
Even if the injuries were foreseeable, the trial judge was not
permitted to combine the knowledge of the Optus staff members who
handled the incident so as to make it the corporate knowledge of
That Optus was not vicariously liable for the actions of any of
the employees as each of them acted responsibly and reasonably in
That it was not reasonable for Optus to have and enforce a
specific policy as to how to deal with such an unusual
Although the duty of an employer or host employer is obviously a
very high one, it continues to be very difficult for Plaintiffs to
succeed in cases involving the criminal conduct of third parties.
Given the severity of the Plaintiff's injury in this case, one
can sympathise with his plight and his argument that he ought to be
successful if he established that it was foreseeable some kind of
incident could have occurred.
However obviously it is undesirable to impose obligations on
employers or host employers to respond to events that are
unpredictable. As pointed out in the judgment, it is not practical
for employees facing a critical incident to go off to some kind of
manual to find out what to do. This case demonstrates that
employers will not be blamed where its employees deal with a
critical incident in a commonsense way.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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