Duty of Care !

When we employ someone we are undertaking a legal duty of care that is well beyond the average persons grasp of its limitations.  How far that extends and in what circumstances it applies is usually decided by a judge sitting in a courtroom - who is often far removed from reality.

The New South Wales Court of Appeal has just quashed a $ 3.9 million damages case awarded in 2015 against Telco Optus for an incident that happened at one of their training centres in Sydney. The victim was not even an Optus employee.   Optus was providing training to the staff of sub contractors who did the telco's installations and a twenty year old man found himself on a high balcony with another trainee he had just met at this course.  This other person invited him to view a car parked far below, and when he did - grabbed him and tried to throw him off the balcony.  Other people intervened, but the victim claimed to suffer chronic severe post-traumatic stress disorder, depression and social phobia.

The offending co worker claimed to have had a desire to kill and had selected the person he had just met as his victim.  The judge ruled that Optus owed the victim a duty of care analogous to that owed to an employee and that duty extended to protecting him from the  criminal acts of others in the workplace.  He awarded $ 3.9 million in damages.

The Appeals court saw it differently.  Optus argued that the offenders behaviour suggested only that he was a risk to himself and challenged the primary judges finding that a reasonable response would have been to remove him from the premises.  It seems that the offender had left the training room without permission and was found to be in a trance like state.

The court allowed the Telco's appeal ruling that it was not probable that any of the Optus staff knew, or should have known that one trainee might attempt to kill another and none of them owed the victim a duty of care with respect to his mental harm.

The cost of those court cases is unknown but the fees for court filings would have to be added to the bevy of silks who attended and submitted learned arguments for the judge to consider.  All of that is reflected in the premiums insurance companies charge for the policies the prudent maintain to protect themselves from just this sort of calamity.

That is something the big end of town accepts as part of the cost of doing business, but it is a heavy burden on the " little people " who run shops and make a living from the myriad businesses in local shopping centres.   Then there are " the public " -  men and women who may employ someone to cut their lawn.   Even a tradesperson making a delivery at your home and who trips and falls over a carelessly discarded garden hose may sue for damages.

Fire and contents home insurance usually has a degree of public liability cover, but then nearly half of Australian homes are uninsured.   It seems that a huge proportion of the population is blissfully unaware of just what sort of risk they run from the calamity of personal injury happening to someone else on their property.   We are all at risk on the capricious  decisions handed down by judges with little grasp of fiscal reality !