Written by Peter CarterMarch 25, 2015
A call centre trainee – who came within an inch of being hurled from a fourth-floor balcony by another inductee – has argued his employer bore responsibility for the criminal act of which he was the victim.
Glen Wright had barely spoken to fellow class member Nathaniel George. They were both labour-hire employees on loan to Optus, the former with IPA Personnel Pty Ltd and the latter with Drake International.
The premeditated murderous act in March 2001 was itself unpredictable. The assailant had “formed a desire to kill someone” and the previous night “his murderous intent settled on Mr Wright”.
George had left a morning training class mid-session and sent messages to Wright via other students to join him on the balcony. Wright – then aged 20 – ignored the invitations.
Investigating the goings on, the course leader found George in the level 4 recreation room “unresponsive and incoherent”. She went for help in the form of two colleagues to whom the aberrant trainee expressed the desire “to see Glen”.
Thinking his presence might assist defuse the situation, an Optus trainer went downstairs and encouraged Wright to come to where the bizarre events were unfolding.
After being lured to the balcony railing to gaze down on a car below, the attacker launched at Wright lifting him from the floor and would have succeeded in throwing him onto the concrete below had not the latter clung hard to the metalwork until a rescuer’s crash tackle battered the brute to the floor.
The immediate aftermath of the homicidal attack was the slow realisation by the victim – as well as the rescuer and another Optus staff member present – that Wright had been seconds from a vicious and bloody death. Ambulance, police and the attacker’s employer, Drake International were quickly called to the scene.
It was not disputed that Wright sustained a debilitating post-traumatic stress condition, which gradually became chronic and prevented him from working.
Optus contended however that it owed no duty for the criminal offence perpetrated upon someone not its employee and refused compensation to Wright.
Justice Stephen Campbell in New South Wales’ Supreme Court ruled however that as a labour hire worker, Wright was was subject to its direction and control.
The employer/employee like relationship meant that Optus was responsible for “taking reasonable care to protect Wright from the criminal acts of others in the workplace”.
The evidence of security experts was that Optus ought to have had procedures and personnel trained to deal with aberrant and violent behaviour and had this occurred, Mr Wright would have been unlikely to have been exposed to the violent episode.
The telco also contended it should be immune from compensation liability because Wright had “volunteered” his assistance to help placate George. This argument was also rejected. “Although in a sense he went voluntarily, he also went reluctantly” as a result of the training supervisor’s “encouragement”.
After an eight-day trial, the court awarded damages of $3.85 million including nearly $2 million for past and future loss of earnings and $426k for general damages.
On 17 February 2017 the Court of Appeal by a 2-1 majority, reversed this decision and held it was not – according to top the NSW Civil Liability Act s 32 test, the risk of mental harm to the plaintiff- foreseeable and hence Optus owed no duty.
Wright by his tutor Wright v Optus Administration Pty Limited  NSWSC 160 Campbell J 06/03/2015 – view decision