Shaw v McGee & Anor [2011] NSWDC 155

Shaw v McGee & Anor [2011] NSWDC 155

The second defendant, as occupier of the Park, owed the plaintiff a duty of care and breached it after being informed of Mr McGee's first improper conduct and later complaints; a reasonable person in its position would have taken effective precautions, including terminating or banning Mr McGee, and its failure caused an exacerbation of the plaintiff's PTSD and a major depressive episode. Mr McGee was not the will and mind of the company, and although he was treated as an employee or caretaker for vicarious liability purposes, his assaults and harassment were unauthorised activities wholly divorced from his duties and not done in the course of employment. The claim therefore succeeded only...

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Civil Claim for Damages for Personal Injury Arising From Alleged Direct Liability, Vicarious Liability, Occupiers' Liability and Negligence / Principal Judgment After Hearing
Outcome
Verdict and judgment for the plaintiff against the second defendant in the sum of $33,513.15.
Legal Topics
['direct Corporate Liability' 'independent Contractor or Employee' 'course of Employment' 'psychiatric Injury' 'civil Liability Act 2002 Damages' 'foreseeability and Causation']
['torts' 'personal Injury' 'negligence' "occupiers' Liability" 'vicarious Liability'] ['direct Corporate Liability' 'independent Contractor or Employee' 'course of Employment' 'psychiatric Injury' 'civil Liability Act 2002 Damages' 'foreseeability and Causation']

Case Brief

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Procedural Posture

Civil Claim for Damages for Personal Injury Arising From Alleged Direct Liability, Vicarious Liability, Occupiers' Liability and Negligence / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the second defendant was directly liable for Mr McGee's conduct on the basis that he was the will and mind of the company." "Whether the second defendant was vicariously liable for Mr McGee's assaults and harassment, including whether he should be treated as an employee and whether his conduct occurred in the course of employment." "Whether the second defendant, as occupier of the Park, breached its duty of care to the plaintiff after being informed of Mr McGee's conduct." 'Whether the Civil Liability Act 2002 governed the claim and the assessment of damages.' 'Whether psychiatric injury to a person of normal fortitude was foreseeable under Section 32 of the Civil Liability Act 2002.' 'What damages should be awarded.']

Ratio Decidendi

The second defendant, as occupier of the Park, owed the plaintiff a duty of care and breached it after being informed of Mr McGee's first improper conduct and later complaints; a reasonable person in its position would have taken effective precautions, including terminating or banning Mr McGee, and its failure caused an exacerbation of the plaintiff's PTSD and a major depressive episode. Mr McGee was not the will and mind of the company, and although he was treated as an employee or caretaker for vicarious liability purposes, his assaults and harassment were unauthorised activities wholly divorced from his duties and not done in the course of employment. The claim therefore succeeded only...

Court Disposition

Verdict and judgment for the plaintiff against the second defendant in the sum of $33,513.15.

Orders

  • ['Verdict and judgment for the plaintiff against the second defendant in the sum of $33,513.15.' "The second defendant is to pay the plaintiff's costs of the proceedings. This cost order does not affect any cost orders already made."]