Optus not liable for murder attempt

The NSW Appeal Court has ruled Optus Administration Pty Ltd could not have known a course participant would try to kill another attendee and should not be held liable.

The judges overturned by 2:1 a $3.9 million damages finding and cleared the telco of responsibility for the 15 March 2001 incident. The court heard Nathaniel George and Glenn Wright were attending an Optus call centre training course in Gordon, NSW.

The course was conducted by Optus employee Natalie Hedges on the ground floor. About 9.30am on 15 March, Mr George left the training room and went to a 4th floor balcony.

Ms Hedges reported the incident to her superior, Trevor Williams. He and staffer Paul Dee went to the roof balcony and observed Mr George to be unresponsive, appearing to be in a trance-like state, and repeatedly asking for "Glenn" while pacing up and down the roof balcony near the waist-high railing.

Mr Wright reluctantly complied with a request from Mr Williams, communicated via Ms Hedges, to assist and left the ground floor to attend the roof balcony.

Mr Williams asked Mr Wright whether he had supplied drugs to Mr George, to which Mr Wright replied "no". Mr Williams then left the balcony to report to senior management who instructed him to make arrangements for Mr George to be removed from the premises by the labour-hire company which had supplied his services.

While he was gone, Mr Wright approached Mr George while Mr Dee and Ms Hedges observed from about 15 metres away. After encouraging Mr Wright to go close to the balcony railing, Mr George attempted to lift him off his feet and throw him from the balcony, while also punching and hitting him. Mr Dee intervened and restrained Mr George, allowing Mr Wright to escape.

The court was told staff were concerned about Mr George's behaviour and thought he was "psychotic" or on drugs. Despite that, they convinced Mr Wright to approach him on the balcony after Mr George repeatedly asked to speak to Mr Wright.

The two men had not met before the training course started on 12 March. After the balcony incident, Mr George later told investigators he wanted to see what it was like to kill someone and had randomly selected Mr Wright.

Mr Wright sued Optus after developing severe post traumatic stress disorder.

On 20 March 2015, NSW Supreme Court Justice Stephen Campbell found Optus had breached its duty of care to Mr Wright and was vicariously liable for staff insisting he approach Mr George. He awarded Mr Wright more than $3.9 million.

Optus's appeal grounds included Justice Campbell erred in finding Optus or its staff negligent. It argued no one could have anticipated Mr George's intention to kill a fellow trainee.

On 17 February 2017, NSW Appeal Court Justice John Basten, with whom Justice Cliften Hoeben agreed, upheld the appeal. Justice Basten agreed Mr George's attack on Mr Wright was not foreseeable.

"To conclude no person should have been permitted to approach Mr George or that the one person he had asked [for] should not have been allowed to speak to him bears the hallmarks of benefiting from hindsight," he said.

Staff could not have foreseen Mr George might attempt to murder Mr Wright or Mr Wright might suffer psychiatric illness.

In a dissenting judgement, Justice Fabian Gleeson said Mr George's erratic behaviour and demands to speak to a man he barely knew should have concerned Optus staff.

"[Staff] should not have allowed Mr Wright to approach Mr George on the balcony," he said.

Because staff were acting on Optus's authority, the telco was vicariously liable for Mr Wright's psychiatric injury. He dismissed the appeal but reduced damages to $3.34 million because he said Justice Campbell had miscalculated future care requirements.

Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright [2017], NSWCA 21, 17/02/2017