A foreseeable and not insignificant risk?
A host employer’s duty of care tested.
This very recent case is a timely reminder of the extent of the duty of care owed by a host to its labour hire employees.
The New South Wales Supreme Court recently delivered a decision in the matter of Wright v Optus Administration Pty Limited*, awarding over $3.8 million in damages to an injured worker. The Court found that the host employer, Optus, breached its duty of care to the Plaintiff to take reasonable care in devising and instituting a system for the management of the behaviour of another employee, in order to safeguard the Plaintiff from any foreseeable and not insignificant risk of assault.
The worker, Glen Wright, was employed under a labour hire arrangement undertaking call centre training with host employer, Optus. Nathaniel George was undertaking the same training course but was employed by a different labour hire agency.
On 15 March 2001 Mr George attempted to throw Mr Wright over a 4th floor balcony railing in an attempt to murder him. When his attempt was foiled by Mr Wright’s reaction to cling to the railing, Mr George started attacking Mr Wright, punching him in the face.
This incident was predicated by a series of events in the hours prior in which Mr George displayed incoherent and alarming behaviour.
The Duty of Care
While it was disputed by Optus, the Court found that Mr Wright was under the care, control and supervision of Optus. As a result, it was held the Optus owed Mr Wright a duty of care to:
“take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding him from unreasonable risks in the methods by which the work was to be undertaken, extending to taking reasonable care to protect him from the criminal acts of others in the workplace.” (Campbell J at paragraph 77)
In the circumstances of this specific event, the duty was to devise and institute a system to deal with Mr George where there was a foreseeable and not insignificant risk that he would assault Mr Wright.
You may ask, “But how was the employer to know that Mr George would attempt to murder Mr Wright?”
The Court determined that Mr George’s behaviour led supervisors to form the view that he presented a risk to the personal safety of others. Mr George’s behaviour was observed by multiple Optus supervisors, who considered that he may be under the influence of drugs. The events were unfolding on a large balcony area on the 4th floor of the building. Mr George was unresponsive to questions asked of him. The Optus supervisors were apprehensive about leaving Mr George alone and one even ensured that he was accompanied to the balcony by another Optus supervisor who he considered would be able to physically capable of assisting him. Yet during this period of incoherence and aberrant behaviour, Mr George showed a continued interest in the whereabouts of Mr Wright.
Incorrectly, Optus supervisors deduced that Mr George and Mr Wright must be friends and that Mr Wright would be able to assist them in determining the cause, or managing the behaviour of, Mr George. Mr Wright said to an Optus supervisor that he did not really know Mr George and was not his friend. Yet Mr Wright was encouraged by an Optus supervisor to accompany them to the balcony where Mr George was pacing.
In effect, Optus put Mr Wright in a position where he was alone with Mr George after Mr George demonstrated aberrant behaviour over a period of time that alarmed Optus.
On these facts, the Court found that Optus exposed Mr Wright to a risk of harm that was foreseeable as a real possibility being neither far-fetched nor fanciful.
In considering whether the risk was “not insignificant”, the Court considered that had the Optus supervisor made reasonable enquiries he would have determined that there was no relationship between Mr George and Mr Wright. However, the Optus supervisor failed to make these enquiries and permitted Mr Wright to be introduced to Mr George’s presence on the balcony.
On a practical level, the Court considered that there was a reasonable system of management of the situation open to Optus. It was considered common sense that Optus should have escorted Mr George from the premises and/or called the Police.
This case clearly demonstrates that a host employer is not completely absolved of its duty of care because a labour hire employee commits a serious criminal act. This case also illustrates that although a host employer may not be an employer of an injured labour hire employee, the duty of care imposed on a host employer is onerous, and analogous to the duty of care owed by an employer to an employee. In this case, it was the absence of a system to manage the unusual behaviour of an employee that was the host employer’s undoing. Incidents in the workplace can occur as a result of a multitude of circumstances never contemplated by the host employer. It is not the position of the Court that an employer must contemplate every possible situation that might arise and have in place a policy or system to manage it. Instead, it was determined that a host employer must have in place systems to ensure that any event can be managed and employees working under there overall direction are not exposed to harm.
*Full citation: Wright by his tutor Wright v Optus Administration Pty Limited  NSWSC 160
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