A security guard brought proceedings against an occupier of commercial premises, the security provider and the insurer of his deregistered labour-hire company for psychiatric injury resulting from criminal conduct of an intruder during a break-in.
In issue
- Occupier, contractor and employer’s liability for psychiatric injuries resulting from criminal acts of third party.
- Obvious risk in confronting criminal intruder and voluntary assumption of risk.
The background
The plaintiff was a security guard at commercial premises when he saw on a CCTV monitor what appeared to be a person breaking into the premises. The plaintiff went to investigate and when he saw the intruder, identified himself as a security guard. The intruder was holding an axe and said to the plaintiff "I’m going to kill you". The plaintiff fled to the control room and called police who apprehended the intruder. The plaintiff claimed that as a result of the incident he suffered psychological injury. He issued proceedings against the occupier of the premises (SPG), the security services provider (BPG), and the Nominal Insurer (for the deregistered former employer of the plaintiff).
The decision at trial
The court found that BPG had issued the plaintiff a number of manuals which incorporated instructions for security personnel to stay away from intruders, call the police and wait in a safe place until police arrived. The defendants argued that the risk of injury to a person confronting an intruder was an obvious risk and that the plaintiff, acting in the way he did, voluntarily assumed this risk. The court found that the plaintiff acted in a manner contrary to the instructions given and was aware that his actions were inherently dangerous to his own safety and that there was a risk he might sustain injury as a consequence.
Fundamentally, the plaintiff’s case failed as the court found that it was not reasonably foreseeable that the plaintiff would suffer psychiatric illness in the circumstances where the plaintiff acted contrary to his training as a security guard and the instructions he was given regarding the system of work.
The court found that the occupier did not owe a duty of care to protect the plaintiff from the risk of harm by a third party. BPG owed an extended duty of care to the plaintiff by virtue of its role in contracting security services and exercising control over the plaintiff’s system of work. However, BPG were found not to have breached its duty of care as the evidence revealed the plaintiff had been properly trained regarding break-ins.
It was accepted that the plaintiff’s employer owed the plaintiff a non-delegable duty of care. However, it was found that the employer had not breached its duty of care and had provided a safe system of work in that it had ensured the plaintiff was properly trained and instructed.
Implications for you
This case serves as a reminder to employers and contractors to ensure staff are appropriately trained for the risks they may encounter in the course of their employment. Despite the general principle that a person will not be liable in negligence for failing to protect against the criminal actions of another, appropriate policies and comprehensive training may still be required in cases of an employer and employee relationship.
Capar v SPG Investments Pty Limited t/a Lidcombe Power Centre & Ors (No. 5) [2019] NSWSC 507
