A security guard who suffered mental harm after being threatened by an intruder, has been unsuccessful in his claim of negligence against both the owner of the premises as well as his employer, with the Supreme Court of New South Wales finding that the security guard’s decision to pursue the intruder was directly contrary to his training, and that he was entirely the author of his own downfall.
Background
Mr Gengiz Capar was employed as a security guard at the Lidcombe Power Centre in New South Wales (the premises). In March 2010, Mr Capar was on night duty at the premises. While sitting in the control room during a meal break, he noticed an intruder on the CCTV monitor outside the premises. Mr Capar left the control room to investigate. He made his way to level one of the premises and the intruder then appeared in front of Mr Capar, in possession of an axe and yelling “I’m going to kill you”. Mr Capar immediately ran back to the control room and locked himself inside before calling the police. The police attended and the intruder was later apprehended. As a result of this incident, Mr Capar suffered Post Traumatic Stress Disorder and associated Depression and claimed that he has been rendered permanently unfit for any form of employment.
Court proceedings
Mr Capar commenced proceedings in the Supreme Court of New South Wales against SPG Investments Pty Limited trading as Lidcombe Power Centre (SPG), the owner of the premises, Business Protection Group Pty Limited (BPG), which provided security services for SPG at the premises, and Dynamite Security Protection Services Pty Limited (Dynamite), which employed Mr Capar and provided his services to SPG.
Each of the defendants denied liability. They argued that Mr Capar had acted in complete disregard of his training by pursuing the intruder rather than calling for help, and relied upon s 32 of the Civil Liability Act 2002 (NSW) to exclude the existence of a duty of care to prevent mental harm to Mr Capar.
His Honour Bellew J found that Mr Capar’s decision to pursue the intruder was directly contrary to the instructions that he had been given and in complete disregard of his training. On that basis, it was not reasonably foreseeable to either SPG or BPG that the intruder might have threatened him in the manner in which he did and s 32 of the Act applied to exclude them from owing him a duty of care in relation to that mental harm. [141]-[183]
As to the employer, Dynamite owed Mr Capar a duty of care as his employer. However, Dynamite discharged that duty when they provided Mr Capar with a safe system of work by ensuring that he was properly trained and instructed in what to do in the event that he was confronted by the very situation for which he ultimately claimed damages. Mr Capar knew and understood the instructions he had been given on how to act in this situation yet he acted in plain contravention of them. It follows that there was no breach of duty on the part of Dynamite. It was instead Mr Capar who was entirely the author of his own downfall. [258]
Accordingly, the court found in favour of the defendants.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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