Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia

Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia - [2001] NSWCA 243 - NSWCA 2001 case summary — Zoe

[38]

Liability: The Trial Judge's Findings 4 The plaintiff suffered very bad head injuries. The trial judge made the following findings as to their cause: "On 27th April, 1996 at about 7.00am the Plaintiff was lying asleep in a bed in the motel owned and operated by the Defendants when an unknown person struck her on the head with an iron bar through a gap of about 15 centimetres between the sliding window and adjacent wall to her room. … The motel in question is owned and operated by the Plaintiff's family, originally by her parents, but since about 1995 by her brothers. She herself was an infrequent visitor to the premises and at the time of the attack upon her was either residing elsewhere in Sydney when on vacation or was attending Canberra where she was at university. On this particular occasion she was occupying a room normally occupied by her brother Mohammed and had been there for one or two nights. The room is illustrated in the photographs, Exhibit B. It is on what might be called the ground level of the motel and there is unrestricted access from the street to the window of the room. She described a wooden pole or stick which was available in the room to place in the runner for the sliding window to prevent the window from being opened further than some 15 centimetres. At the time of the attack upon her I infer that the bed in which she was sleeping was immediately adjacent to the window and that her head was at the end of the bed near the gap and the adjacent wall. There was an internal locking device on the sliding window, but apart from that there was no other external security. The premises are in the Kings Cross area of Sydney and Exhibit H is a list of criminal offences reported to the Police in relation to the said premises occurring between 11th February 1993 and 25th March 1996, totalling nine incidents in all. In my judgment, to have an arrangement in relation to the window such as I have described was inviting trouble and in particular the attention of the criminally disposed to break into with a view to stealing whatever they could find in the premises. Its close proximity to and easy access from the street outside would be a temptation to any passing criminal. It is not surprising there have been a number of prior incidents in relation to these premises and although none of them is precisely similar to what happened to the Plaintiff, it seems to me that the Defendants, even if they needed it were on notice that people were likely to break and enter their premises with criminal intent. Elementary security precautions would have prevented either the opening or the leaving open of sliding windows on the ground floor of these premises and if it was desired [not] to provide that security for their customers then it would have been easy and comparatively inexpensive to provide security grilles externally so that opening the sliding door or window would not have the consequence of affording access to an intruder. It is said that on the occasion of the attack upon the Plaintiff this was someone who was purely motivated to carry out a gratuitous attack and nothing else. I infer from the facts before me that this person was minded to gain access to the premises by whatever means were necessary, including violence and to commit further offences once access had been gained. Accordingly I am satisfied there was a real and foreseeable risk of injury occurring in the way in which [it] in fact occurred to the Plaintiff, and given the area and the past events reported to the Police and that it would have been comparatively easy to prevent the exposure of the Plaintiff to this risk, either by preventing the opening of the window altogether or providing external security as has subsequently been done I find the Defendants are liable for the attack upon the Plaintiff. It was urged upon me that should I so find I should also find the Plaintiff guilty of Contributory Negligence. I reject that submission. In my judgment, persons who occupy premises such as in the present case are entitled to assume that consideration has been given to the overall security situation. There is no evidence upon which I could say that any act or failure to act of hers was causative of the attack upon her."

[40]

Ground 1: Foreseeability 5 It is convenient to deal first with two arguments for the defendant that can be disposed of quickly. 6 The first of these arguments was a formal submission that the correct test is that what must be established is an ability to foresee a risk of injury as being not unlikely to occur (referring to Caterson v Commissioner for Railways (1972) 128 CLR 99 at 102) or alternatively that it was likely to happen as a probable consequence of the defendant's defaults (referring to Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 at 251 (per Lord Griffiths), and 256, 259, 261 and 270 (per Lord Mackay of Clashfern)). So far as this submission urged a change in the general law on foreseeability, it goes well beyond this Court's powers of acceptance, and it is not necessary to do more than note the submission. So far as this submission was limited to the foreseeability of criminal conduct of third parties, there may be fewer obstacles in its path. Apart from the passages in Smith's case referred to, it may be noted that support for the submission can be found in Lord Keith of Kinkel's concurrence with Lord Mackay, Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1030 per Lord Reid and Lamb v Camden London Borough Council [1981] QB 625 at 642 per Oliver LJ. On the other hand, the proposition urged, if sound, would have been an easy answer to the plaintiff's claim in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411: yet the High Court was silent about it, and instead adopted the approach of Lord Goff of Chieveley in Smith's case. Lord Goff saw his approach as being inconsistent with that of Lord Mackay. He said at 279: "I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not myself subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct. So, for example, in Haynes v Harwood [1935] 1 KB 146, liability was imposed although it cannot have been at all likely that a small boy would throw a stone at the horses left unattended in the public road; and in Stansbie v Troman [1948] 2 KB 48, liability was imposed although it cannot have been at all likely that a thief would take advantage of the fact that the defendant left the door on the latch while he was out. Per contra, there is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defendant does not take steps to prevent it."

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Hence the adoption by a majority of the High Court justices of Lord Goff's approach, and their silence about Lord Mackay's, may be significant. Further, Clerk & Lindsell on Torts (17th ed, 1995) para 7-36 prefers Lord Goff's approach to Lord Mackay's approach. But, since the submission was only formal, and since it is possible to decide this appeal without considering its merits, again it is not necessary to do more than note it. 7 Secondly, the defendant submitted that the trial judge failed to give reasons for finding that "there was a real and foreseeable risk of injury occurring in the way in which [it] in fact occurred to the Plaintiff". However, the bulk of the paragraph preceding that finding is devoted to giving reasons for the finding. In form they are satisfactory reasons. Their validity in law or logic is another question. 8 The trial judge posed as the relevant test the question whether "there was a real and foreseeable risk of injury occurring in the way in which [it] in fact occurred to the Plaintiff". Though the plaintiff did not complain about this formulation, and the defendant unsurprisingly abstained from criticism of the judgment in this respect, the test posed is probably unduly restrictive from the plaintiff's point of view. The injury which in fact occurred to the plaintiff was injury resulting from being bashed by an iron bar four feet long wielded by a person who placed his arm through the narrow gap in the door. That is foreseeable, though it is relatively difficult to foresee. But risk of some physical injury to the plaintiff being caused in one of a variety of ways is not so difficult to foresee, and is more likely to be characterisable as "reasonably foreseeable". The conventional test, where physical injury is concerned, is that it suffices if there was a reasonably foreseeable risk of injury of the kind which the plaintiff suffered: Hughes v Lord Advocate [1963] AC 837. If the decision turned on the issue of reasonable foreseeability, it would be necessary to consider both tests. 9 The plaintiff placed at the forefront of her submissions in relation to this ground a reference to Dixon CJ's remark in argument in Chapman v Hearse (1961) 106 CLR 112 at 115: "I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence". If that truism were a complete statement of the law on reasonable foreseeability, it would read the requirement that foreseeability be reasonable out of the law; but it did not purport to be, and is not, a complete statement of the law. That which is "foreseeable" is not to be confused with that which is "reasonably foreseeable": Lamb v Camden London Borough Council [1981] QB 625 at 642-643 per Oliver J. Whether or not the test of reasonable foreseeability is a demanding test, it is a test with some content. In Jaensch v Coffey (1984) 155 CLR 549 at 571-2 Brennan J said that issues of reasonable foreseeability, causation and remoteness: "are all questions of fact, but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not. They are matters of judgment for the jury or, where there is no jury, for the judge. Hence Lord Wright in Bourhill v Young [1943] AC 92 at 110, in answer to the question where the thing is to stop, replied that 'it should stop where in the particular case the good sense of the jury or of the judge decides'. The stopping point is not to be defined as a proposition of law, nor are new principles to be invented to stop the thing going too far …. … The thing will stop where good sense in the finding of facts stops it …. Of course, the room for judgment is manifest as it always is in the evaluation of facts, but that provides no warrant for introducing new criteria to limit liability."

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14 The defendant submitted: "34. It was not open to His Honour to find that the respondent's assailant was motivated by other than a desire to carry out a gratuitous attack. 35. His Honour inferred that the unidentified assailant was minded to gain access to the premises by whatever means were necessary (including violence) and to commit further offences once access had been gained (Red Book p 21I-L). 36. There was no evidence and it was not open to His Honour to find that the assailant intended to commit further offences once he had gained access to the premises. The respondent's family members did not consider the risk of an incident such as that which occurred as even a remote possibility (Black Book p 78P-W). The respondent thought it was perfectly safe to leave the door open (Black Book p 78X-79E and p 81I-J). The room in which the respondent was staying on the night of the attack was one usually used by her brother Mohammed. The respondent was certain that the person who carried out the attack upon her was not endeavouring to attack her brother Mohammed for some purpose (Black Book p 78G). She could offer no reason why the assailant had assaulted her (Black Book p 78M-P). 37. The respondent was taken completely by surprise by the attack. She offered no motive for the attack or for the severity of the attack upon her. There was no evidence upon which His Honour could have concluded that the assailant intended to commit further offences once access had been gained. 38. There was no evidence that the assailant intended to enter the room." 15 The passages to which these submissions refer, and related passages, are as follows (Black 78G-79E and 81H-K): "Q. As far as you're aware, there'd be no reason for anybody wishing to attack Mohammed while he was in his room? A. No. Q. There's certainly no suggestion in your mind, is there, that the person who was responsible for your injuries was endeavouring to attack Mohammed for some purpose? A. No not at all. Q. And there'd be no reason that you'd know why - first of all, did anybody other than your immediate family know you were staying at the motel? A. Other than my immediate, my friends knew I was staying in the motel. Q. These are your friends in Canberra? A. Yes and some of them were in Sydney. Q. I see? A. That weekend. Q. There'd be no reason that you'd know that anybody would want to assault you in the way that -- A. No. Q. -- took place on the night of this accident? A. No. Q. And there'd never been any discussion within the family, as far as you were aware, that this occurrence that occurred to you was something that was within the mind, of concern to your parents before the incident took place? A. Before the incident, no, I mean it was an absolute shock to everybody. Q. There was no suggestion to you by your family members that there was any need to keep the door - this is the door we're talking about that was open the 15 centimetres, there was no suggestion that you had to keep that door locked? A. No -- Q. At night time because there was a likelihood that you were going to get -- A. No. Q. - attacked through the door? A. Not at all. Q. And as far as you were concerned, from your own point of view, you thought it was perfectly safe to leave the door open at night time? (No verbal reply) Q. By the 15 centimetres, I mean -- A. I thought, yes, I thought that that was fine, yeah, I didn't, I never thought that I would - that it was going to lead to an assault, that's just -- … Q. Yes. But if you had any concerns at all about your safety, you would have -- A. I didn't, I didn't have -- Q. - locked the door, wouldn't you? A. I didn't have concerns for my safety because I thought I was safe. Q. Thank you? A. I had no reason to be concerned." 16 The plaintiff submitted: "27. There was no need to find as a matter of fact what the assailant's motive was - that could not be done because he or she had not been apprehended. His Honour considered the criminal history associated with the premises and inferred, permissibly, that yet again there was an attempt to break and enter to steal from one of the appellant's guests. 28. In so far as the appellant means to contend, by asserting that the respondent's family did not consider there to be a risk of such an incident (para 36), that the appellant did not consider there to be such a risk, there is no evidence to support that submission. Indeed, the reference relied upon by the appellant demonstrates no more than the appellant's reluctance to explore the issue at trial. In the passage of cross-examination referred to by the appellant, it did no more than question whether the respondent's family had suggested to her that there was a risk to the safety of guests if they did not keep their doors closed. It did not even establish whether the respondent's family considered it dangerous. That would have involved either putting that proposition to the appellant in cross-examination or calling witnesses on the appellant's behalf, and it did neither." 17 The last submission may be put on one side. The defendant's contention at that point was not directed to the defendant's state of mind, but simply to the proposition that the attack was motiveless. It supported the contention that the attack was motiveless by the plaintiff's evidence that she knew of no-one who wished to assault her, that she knew of no-one who wished to assault her brother Mohammed, who would normally be sleeping in the room, and that she knew of no family concern about the possibility of any physical assault on any member of the family. 18 The defendant is correct in submitting that, unless theft was the motive, the crime lacked any motive and was gratuitous. It sought to exclude theft as a motive by reason of the circumstances and, in particular, the fact that the assailant could not have entered the room. 19 The plaintiff submitted that there was no evidence to support the defendant's assertion that the "assailant could not have entered the room". That assertion appears to be correct, for the gap, being, according to the plaintiff, only 10-15 centimetres across (about 4-6 inches), was too small to permit an adult to enter, unless

[49]

An intruder willing to break the glass would have done so at the risk of attracting attention from the plaintiff, who would be likely to have screamed as she did after being hit on the head, and at the risk of attracting attention from anyone else in earshot either inside the building (as happened in relation to the incident at 3am on 12 March 1995) or in the street. The natural reaction of an intruder who has broken glass noisily is to run away, as the perpetrator of the incident on 12 March 1995 did. An intruder seeking to be let in by the plaintiff would have been much more likely to have threatened her before hitting her rather than the other way round. Indeed there is no evidence that the person who attacked the plaintiff did seek to obtain entry by threatening her. The conduct of either type of intruder would have been radically different from the conduct of the actual assailant. The defendant contended that there was no basis on which the trial judge could infer, as he did, that the assailant "was minded to gain access to the premises by whatever means were necessary, including violence and to commit further offences once access had been gained." Certainly the basis for doing so was very slight. 20 There are other factors supporting the defendant's characterisation of the attack. 21 First, it took place in daylight, at 7am, very near and in full view of a public road down which cars and pedestrians passed. That is not the conduct of a burglar or robber behaving rationally. 22 Secondly, it took place next to a path leading to the reception area of the motel, and very near the reception area itself. The risk of noise caused by attempts to enter by breaking the glass door or by forcing the plaintiff to let the assailant in by blows or threats would be very likely to be heard and to attract attention. Motels at 7am are typically places populated by employees, either on duty at fixed locations like the reception area, or moving about the premises as they perform tasks like cleaning the rooms and public areas or bringing meals to guests. At that time motels are also typically places about which guests move as they arrange to check out or prepare to leave on the day's business. 23 Thirdly, though a hospital record apparently relying on the plaintiff's account suggested that there was more than one blow, on the plaintiff's sworn evidence there was only one blow. Whether there was one blow or more than one blow, the level of violence employed must have been very great in view of the extensive nature of the injuries caused to the plaintiff. She bled heavily and after being admitted to hospital vomited much blood. She spent some time in hospital. The trial judge said: "Dr Bentivoglio … describes the Plaintiff as having sustained a compound depressed fracture of the right frontal bone and right frontal sinus. This fracture was extensive and involved the frontal bone, the frontal sinus, and also the left maxilla. A CT Scan revealed extensive intracranial air and evidence of extensive fraction into the brain. The risk of a CSF leak was significant and accordingly Dr Bentivoglio carried out a bi-frontal craniotomy, exploring the fractures. He found extensive laceration of the dura."

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A blow or blows of this degree of violence would either render the victim dead or unconscious (in which case any enterprise of entering the room would be no further advanced), or would awaken the victim and so alarm the victim that the victim would behave as the plaintiff did by resisting and screaming (in which case the enterprise of entering the room would be impossible). 24 The defendant then submitted (paragraph 10(i)-(ii) and 13): "10. … His Honour erred in finding that the injury that in fact occurred was within the class of injury that the respondent ought to have foreseen: (i) His Honour noted that the premises were at Kings Cross and considered a list of criminal offences referred to in the Schedule of Police Reports Exhibit H (Blue Book p 67) (Red Book p 20M-O). - 11 February 1993 - break enter and steal without any reference of violence to persons; - 21 March 1993 - theft, without threat of, or actual, violence to any person; - 9 October 1994 (contained in the second entry for 10 October 1994) - theft, without actual or threatened violence to any person; - 10 October 1994 - theft, no violence; - 9 January 1995 - theft, no violence; - 12 March 1995 - attempted break and enter, no violence; - 12 October 1995 - assault - occurred off the appellant's premises but in the street in which the appellant's premises were situated. There is no suggestion that any persons within the appellant's premises were then at risk of injury in respect to that incident; - 30 November 1995 - report of damage to property, no violence; - and 25 March 1996 - report of theft of property without violence; (ii) None of the incidents contained in the Schedule Exhibit H disclosed actual or threatened injury to any person within the appellant's premises; no injury or risk of injury of the kind that occurred to the respondent; no incident or risk of incident of the kind that occurred; …" 13. His Honour considered that the appellant was 'inviting trouble' to have the glass sliding door arranged in the manner described (Red Book p 20C-K and Red Book p 21R). That the criminally disposed might want to break enter and steal cannot support a finding that it was reasonably foreseeable that the plaintiff might be viciously assaulted without the premises being entered for theft." 25 The plaintiff responded: "9. The central thrust of the appellant's argument on foreseeability is that the list of criminal offences pertaining to the premises were not of a kind suggestive of the injury that befell the respondent (para 10). Upon scrutiny of the police record (Blue 67-94) that argument is found wanting, even if one was to allow for only a modicum of imagination and intelligence on the appellant's part. In particular: (a) each of the nine instances involved illegal entry into premises; (b) eight out of the nine incidents involved theft or attempted theft; (c) at lest five of the instances involved the use of physical force; (d) the incident involving assault did occur, contrary to the assertion in sub-para 10(i), on the premises (see Blue 86V); and (e) the incident on 12 March 1995 (Blue 81) was almost identical to the one in question - a would-be burglar had smashed the glass in the sliding door of a room on the ground floor in an attempt to enter the room. 10. The injury that befell the respondent arose from an illegal entry onto the premises. The inference could readily be drawn that it was an attempt to steal. The injury suffered by the respondent fell within the class of injury the appellant ought to have foreseen. 11. The appellant's second line of argument is to the effect that its knowledge of the possibility that people may try and break, enter and steal did not make it reasonably foreseeable that the respondent would be assaulted (para 13). The incident falls well short of the exculpatory phrase far fetched or fanciful ( Wyong Shire Council v Shirt (1980) 146 CLR 40, 48). The police incident reports revealed a history of break and enters and attempted entries with the use of force. The incident on 12 March 1995 had been almost identical." 26 The plaintiff's submission that one of the nine incidents reported to the police involved assault on the premises is either correct or nearly correct; if it was not on the premises, it was very close to them. However, it was an assault of a very different type from that suffered by the plaintiff. It took place on 12 October 1995. The assailant in question had been asleep. The assailant had been asleep in a car which was not his car parked outside the motel. Mohammed woke him at 9.05am and asked him to leave. The assailant began throwing objects at Mohammed. Mohammed restrained him while the police were called. In the course of doing this, Mohammed was bitten. The assailant turned out to be mentally deranged. The incident had nothing to do with property crimes and nothing in common with the bashing of the plaintiff. 27 The defendant appears to be correct in denying, and the plaintiff incorrect in asserting, that the 12 March 1995 incident was "almost identical" to the incident affecting the plaintiff. There is no identity between a criminal reaching through a gap in a sliding door and hitting a victim on the head, and a criminal smashing glass in a sliding door with a view to theft. The first bears so little connection with the possibility of succeeding in theft that it is likeliest to be an irrational, purposeless and motiveless act of cruelty to a complete stranger; the second is foolish and wicked, but not purposeless or motiveless. 28 The dispute in the submissions about whether the relevant offences involved "violence" rests on an ambiguity between physical violence and violence directed against property. The defendant's submissions refer to physical violence; the plaintiff's submissions refer to violence directed against property. 29 The essential issue is whether the pattern of criminal conduct involving attempted or actual thefts and burglaries is of a kind which would make the risk of what happened more than far-fetched or fanciful. 30 Another area of dispute between the parties turned on some references by the trial judge to the fact that the scene of the crime was at "King's Cross". The defendant submitted: "13. His Honour considered that the appellant was 'inviting trouble' to have the glass sliding door arranged in the manner described (Red Book p 20C-K and Red Book p 21R). That the criminally disposed might want to break enter and steal cannot support a finding that it was reasonably foreseeable that the plaintiff might be viciously assaulted without the premises being entered for theft." 31 The plaintiff submitted: "8. Further, his Honour would have been entitled to take judicial notice of the area in which the appellant's premises was located. It is a notorious fact that the Kings Cross area is a major crime spot within the Sydney metropolitan area." 32 It is not clear whether the trial judge did take judicial notice of any particular characteristic of Kings Cross. The Evidence Act 1995 (NSW) s 144 provides: "(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally … . (2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

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This particular issue, turning on the plaintiff having left the door "ajar", or open to the extent of 10-15 centimetres, largely bears on causation and contributory negligence. The defendant submitted that it also bore on whether the defendant ought reasonably to have foreseen what happened in the following way. The plaintiff had been wakened at 3am on 12 March 1995 while she was asleep in an upstairs room by the sound of breaking glass. She observed a male person who had been trying to enter a downstairs room by breaking the glass door running away. The defendant submitted that if the plaintiff, with her experience of what happened on 12 March 1995, did not foresee any risk in leaving her door partly open on 27 April 1997, there was no reason why the defendant should be expected to. 34 There are strong arguments that the attack was irrational and motiveless in nature, and that an irrational and motiveless attack is something which could not reasonably have been foreseen. It was an attack which was probably inconsistent with attempted robbery or burglary because, by itself, it could not have secured entry for the assailant. There is no evidence that the assailant in fact attempted entry. The plaintiff in effect submitted that the attack could well have been perpetrated by someone strongly under the influence of drugs or alcohol, or perhaps strongly motivated by a desire to steal in order to buy drugs; in either case their state explains why the crime was so inefficiently and so violently committed. The plaintiff relied on an observation of Callinan J in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411 at [136]: "The problem about criminal conduct is that at one and the same time, it may be both unpredictable in actual incidence, wanton and random, and, on that account, always on the cards. In that sense, that a criminal may be actuated to commit a criminal act against property or person, in situations of varying degrees of security, including a high degree of security is always foreseeable."

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If these submissions of the plaintiff were sound, and the injury to the plaintiff was reasonably foreseeable, it would follow that many other possible forms of injury would be reasonably foreseeable - injury caused by spearing, or shooting, or bombing, or acid throwing, or by pouring and igniting petrol, or by hypodermic syringes filled with infected blood. And it would be reasonably foreseeable that all these forms of injury could occur to people in rooms on floors other than the ground floor. These risks in turn might call for precautions imposing very onerous burdens on the defendant and other persons in the position of the defendant, depending on the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant might have. However, that is strictly speaking irrelevant to the present inquiry: was the risk of injury reasonably foreseeable? 35 In my opinion, if the test adopted by the trial judge is the correct test, and what must be reasonably foreseeable is a risk of injury occurring in the way it actually occurred to the plaintiff, the risk of injury was foreseeable (if only because it happened in fact), but there are strong arguments that it was not reasonably foreseeable. The violent and incomprehensible bashing which took place was not within boundaries of foreseeability marked out by criteria of reasonableness. If on the other hand the correct test is that what must be foreseeable is any risk of physical injury of the kind which occurred, there are strong arguments that that was not reasonably foreseeable either. The only earlier physical injury, even if it occurred on the defendant's land, was totally unrelated to theft or to attempts to enter the motel. Attempts at theft were reasonably foreseeable, but the process of breaking into the building did not carry a reasonably foreseeable risk of physical injury. While a burglar who had entered and been disturbed might well become violent, a burglar whose entry was being effected by breaking the glass or seeking to persuade the plaintiff to open the door would be likely to flee, not attack, if, as was likely, the breaking glass or the plaintiff made a loud noise. But reasonable foreseeability is not a crucial question, and it is not necessary to reach a concluded view about it. W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 was a case turning on whether one occupier of land was liable to a second occupier for losses caused by thefts to goods stored on the land occupied by the second occupier, the thieves having been assisted by the lack of security on the first occupier's land. Mason P, with whom Priestley JA and Beazley JA agreed, said at 359: "I confess to difficulty in seeing that the existence of duty turns upon the level of probability of harm [ensuing]. There may be a very high probability that criminal activity causing harm may take place in certain areas of Sydney, but non constat that the occupier or adjacent neighbour has a duty of care to those who suffer. The mechanism of foreseeability is ultimately an unsatisfactory touchstone of a duty of care in this area … ."

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Grounds 2 and 3: Duty To Prevent Attack By Third Parties 37 Ground 2 was: "His Honour erred in failing to consider or apply the principle that the law does not as a general rule impose a duty to prevent harm to another from the criminal conduct of a third party even if the risk of such harm is foreseeable." 38 Ground 3 was: "The facts found by His Honour do not give rise to a duty owed by the appellant to the respondent by protecting her from attack by a third party or parties." 39 The defendant submitted: "15. The law does not, except in exceptional circumstances, impose a duty to prevent harm to another from the criminal conduct of a third party even if the risk of such harm is foreseeable. 17. The respondent occupied the room at the invitation of members of her family who conducted the motor inn business. She was a family guest; not a customer; not an employee. The respondent was not on the premises in any special category ( Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 ALR 411 per Gleeson CJ 417.26 - ie contract, employment, school or bailment). 18. No special relationship existed between the appellant and the respondent. The number and the nature of the incidents that occurred over the period from 1993 to 1996 (see para 10 above) did not alter the general rule that the appellant was under no duty to control another person to prevent that person doing damage to the respondent ( Smith v Leurs (1945) 70 CLR 256 at 262 and Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 ALR 411 - in particular Gleeson CJ at 419). 19. The facts found do not give rise to a duty owed by the appellant to the respondent to protect her from attacks by a third party or parties. 20. The relevant facts found by His Honour were: (a) the window (sliding door) was on the ground level of the motel (Red Book p 20C); (b) there was unrestricted access from the street to the window (sliding door) (Red Book p 20D); (c) the plaintiff's bed was immediately adjacent to the window (sliding door) (Red Book p 20H); (d) the sliding window (door) could not be opened more than 15cm (Red Book p 20F); (e) there was an internal locking device on the sliding window (door) but apart from that there was no other external security (Red Book p 20J); (f) nine criminal incidents had been reported to the Police in relation to the premises between 11th February, 1993 and 25th March 1996 (Red book p 20M-O); (g) there were elementary security precautions that could have been taken namely: (i) preventing the opening of the window (door) altogether (Red Book p 21P); and

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(ii) providing external security grilles (Red Book p 21Q). 21. If a relevant duty of care did exist, it was discharged. The relevant risk was so slight that, when taken with the steps that the appellant had taken, the appellant had discharged any duty it owed to the respondent. There was a conventional lock which was available to the respondent. The door could have been closed and locked. The plaintiff, an adult at the time, had no perception of any danger from leaving the door locked open 10-15cm (Black Book p 79Q)." 40 The plaintiff submitted: "13. The appellant's case at trial was not put on the 'third party control' point. If it had been, the respondent's case would probably have been conducted differently, and the appellant should not be permitted to put such a case on appeal: Coulton v Holcombe (1986) 162 CLR 1; and Lifronic Pty Ltd v Unver [2001] HCA 24 para 44. 14. Although not transcribed, the notes and recollection of both counsel appearing for the respondent at the trial indicate that only very brief submissions on liability were made by counsel for the appellant. Submissions were put about foreseeability and the reasonable response to a risk of injury. References were only given to Janke v Hilton (1995) ATR 62,805, Dalley v Spot On Investments (1995) ATR 62,705 and Wyong Shire . These matters may need to be the subject of affidavit evidence if necessary. No point was taken by the appellant about control over third parties. 15. Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 176 ALR 411 did not, it is submitted, establish any new principle that the appellant should now be permitted to rely upon. It simply confirmed a point made as long ago as 1945 in Smith v Leurs (70 CLR 256, 262), and the decision was based on established principle (para 117 per Hayne J). Further, as Gaudron J observed in McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 at para 55: If a person breaches a legal duty to protect or warn another against a foreseeable risk of harm at the hands of a third party or, even, from a random occurrence, and, if that risk eventuates, it is contrary to common sense to treat that eventuality as having been 'brought about' by that third party or, even, by happenstance. That is because, when questions of causation arise in a legal context, they are answered 'in the legal framework in which they arise' and not by reference to philosophical or scientific notions of causation. To put the matter another way, it would be absurd for the law to impose a duty to protect or warn against a risk from a third party or an external force and, at the same time, allow that, in the event of breach, no liability attaches because the event in question was brought about by external force or by the third party. 16. The appellant's submissions on grounds 2 and 3 of the appeal involve an analysis of duty of care predicated on the incorrect assumption that this was a third party control case (paras 15-21). The respondent did not allege that the appellant owed her a duty to take reasonable care to prevent harm from the criminal behaviour of a third party. Rather the allegation made, and accepted by the learned trial judge, was that the appellant owed the respondent a duty of care to provide her with safe accommodation including an adequately secured room in which to stay. This was and remains an ordinary occupier's liability case concerning injury suffered by an invitee due to a want of reasonable care by the occupier with respect to the dangers inherent in its premises. 17. The fact that this is not a third party control case, and therefore not subject to the principles espoused by the High Court in Modbury , is borne about by at least the following considerations. a) The attack occurred within the premises in which the respondent was staying as a guest: i. the appellant had control over the respondent's safety within its premises; and ii. the respondent relied upon the appellant to provide her with safe premises in which to sleep. b) No intermediary, such as an employer, stood between the respondent and the appellant to take measures for her safety and security. In this instance the appellant had both the capacity and the obligation to care for the safety and security of its guests and that included protecting them from intruders. The fact that the respondent was not a paying guest did not lessen the steps that the appellant should have taken to secure the premises for its guests. c) The intruder's wrongdoing was in furtherance of his or her actions in entering the appellant's premises to steal. d) There was no real issue of causation. There was no issue about the effect of perimeter security, lighting or some such other matter. e) The harm the respondent suffered was the result of a defect or danger in the physical state or condition of the premises. The appellant had control over the state of the premises. The appellant had, by dint of the physical state or condition of the premises, control over the intruder's actions and the effect those actions may have on its guests. f) The appellant did have knowledge and/or forewarning of robberies accompanied by physical force. g) There was a high degree of foreseeability and predictability of the criminal conduct that injured the respondent. h) The assailant was not permitted on the premises. 18. Ordinarily the real issue concerning foreseeability is the extent to which an occupier must act in response to a foreseeable risk, and it is to that point that the appellant arrives (para 21) with the submission that the duty of care was discharged because the risk was slight and steps had been taken by the provision of a door lock. The following matters put paid to that proposition: a) The history of robberies at the premises contradicts any suggestion of the risk being slight. b) The appellant took two steps, not one - the provision of a lock and a pole to secure the door ajar - and the respondent availed herself of the latter. 19. This was not a case like Phillis where the risk was so slight as to require no precaution. Even if the risk had been small, the expense of proper precaution would have been negligible: see Western Suburbs Hospital v Currie (1987) 9 NSWLR 511." 41 These submissions raise several issues, which should be considered discretely. Was the case put at trial and can it be put on appeal? If it can be put on appeal, is the Modbury doctrine relevant? If so, is any exception to the Modbury doctrine available? Finally, if there was a duty of care, was it complied with?

[61]

The notes of the solicitor for the defendant say: "Style of incident is not". All sets of notes contain references to foreseeability, to the magnitude of risks, and to the reasonable man's response. It seems clear - indeed the defendant conceded - that the Modbury doctrine was not put in terms and that no case embodying it, such as Smith v Leurs (1945) 70 CLR 256, was cited. But it is also clear that reasonable foreseeability, duty and breach of duty were put in issue. 43 The plaintiff's argument in this Court assumes that she would have no complaint if the Modbury doctrine had been referred to in final address. The notes of the lawyers reveal that some submissions were put about foreseeability and breach of duty. The plaintiff on appeal does not oppose the defendant raising arguments on those subjects. The peculiarity of this approach is that when final addresses took place the evidence had closed, and it would have been difficult for the case of either party to be reopened in the light of anything said in final address. More evidence could have been called by the plaintiff at the trial than she did call about foreseeability and breach: she could have called the members of her family who were or had earlier been officers or directors of the defendant. Yet it is usual, in examining the issues at a trial, to concentrate not on what was said in final address, but on what was said in the pleadings, in particulars, in opening addresses, and in the course of the reception of evidence. There were no opening addresses and there are no particulars in relation to liability save those in the Statement of Claim. Nothing specific in the conduct of the trial as defining the issues, outside the evidence itself, has been pointed to. Accordingly the issues must be found in the pleadings. 44 In particular, the proposition that the defendant did not argue that no duty of care was owed to protect the plaintiff from harm caused by the criminal act of a third party must be evaluated against the fact that it was for the plaintiff to plead her case. That is, the Statement of Claim should have contained, and contained only, a statement in summary form of the material facts on which the plaintiff relied: District Court Rules Part 9 rule 3(1). A material fact is that on which a cause of action depends. A cause of action in negligence depends on facts which, taken together, reveal that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that that breach caused damage. On the other hand, it would have been wrong for the plaintiff to plead the evidence by which she hoped to establish the material facts or the conclusions of law which would flow from their establishment (unless failure to do the latter could have caused surprise). 45 The material allegations in the Statement of Claim were: "2. It is further alleged that the Defendant was the occupier of certain motel accommodation premises situated at Elizabeth Bay where it held itself out as offering and providing motel accommodation for the use of its guests, including the provision of a Reception Area for such guests. 3. The Plaintiff was occupying accommodation at the Defendant's motel on the ground floor on 27th April, 1996. 4. The said accommodation room on the ground floor occupied by the Plaintiff had a balcony and a glass sliding door in the vicinity of where the bed was situated in the said motel room and the said sliding door was able to be open for a distance of approximately 20 centimetres. 5. Whilst the Plaintiff was lying on the bed in the said motel room at approximately 7.00am on 27th April 1996 an unknown person struck her on the head with an iron bar through the said 20 centimetre opening in the sliding door and thereby occasioned injury to the Plaintiff. 6. Injury to the Plaintiff was caused by negligence on the part of the Defendant's servants and agents. PARTICULARS OF NEGLIGENCE 7. It is alleged that the Defendant by its servants and agents were negligent in that it: (a) Failed to take any or any adequate precautions for the safety of the Plaintiff; (b) Exposed the Plaintiff to a risk of injury which could have been avoided by reasonable care on its part; (c) Failed to warn the Plaintiff of the dangers of sleeping in the bed with the glass sliding door in its opened position; (d) Failed to observe that the Plaintiff was in a position of peril in the circumstances; (e) Failed to provide an adequately secured room for use by the Plaintiff; (f) Failed to provide warning signs that persons using ground floor rooms were in danger of injury from intruders; (g) Failed to adequately fence the subject premises in that the ground floor of the premises could be approached from the street by persons intent on breaking in and/or injuring the occupants of the premises; (h) Failing to provide an adequate security screen on the areas of the windows and sliding doors of the ground floor of the motel premises in circumstances where the Defendant knew or ought to have known of prior attempts to rob and/or enter the premises; (i) Failure to provide adequate security for the premises in circumstances where the Defendant knew or ought to have known that there had been efforts to rob the premises; (j) Failure to instruct the Plaintiff that [at] all times the sliding doors on the ground floor premises were to be secured; (k) Res ipsa loquitur. 8. By reason of the negligence abovementioned, the Plaintiff was injured and suffered and will continue to suffer loss and damage." This pleading did not in terms allege any duty to take reasonable care. However, whether a duty to take reasonable care exists is a question of law ( Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 757). There is no duty to plead matters of law unless failure to do so could cause surprise, though a party is able to raise a point of law in a pleading (District Court Rules Part 9 rule 13). The proposition that the plaintiff was seeking to allege a duty of care against the defendant would not have caused it surprise. From the matters of fact alleged and from the particulars of negligence given could be gleaned an intention on the part of the pleader to contend that the defendant was obliged to preserve persons occupying ground floor rooms from injury caused by intruders (i.e. criminals), whether by warnings, instructions, security screens or fencing. Had the defendant attempted to strike out the Statement of Claim, it would either have failed on the ground that the deficiencies in the Statement of Claim were only formal, not substantive, or it would have been unable to oppose a grant of leave to re-plead so as to advance a case to the same general effect as is now pleaded, though perhaps in more orthodox form. 46 Though reasonable foreseeability was a live issue in final address and is a live issue on appeal, the Statement of Claim says nothing about it. That suggests that the parties were content in final address to treat various key aspects of the tort of negligence alleged as in issue below despite a lack of explicit articulation in the pleadings or otherwise. 47 The plaintiff stressed in submissions to this Court that the principles discussed in the Modbury case, though it was decided on 23 November 2000, six days after the trial judge gave judgment in this case, were not new. If that is correct, it follows that it was for the plaintiff to allege, and to seek to prove, matters of fact which would take the present proceedings outside the obstacles recognised in the Modbury case. It was the duty of the plaintiff to plead a cause of action known to the law, or capable of succeeding at a trial. It was not sufficient for the plaintiff merely to mouth general phrases current in analysing the tort of negligence and leave it to the defendant to establish why those general formulae would be insufficient to bring the plaintiff success. 48 The defendant put in issue the contents of paragraphs 3-8 of the Statement of Claim. But it did not specifically identify the absence of a duty of care to prevent the harm caused as a bar to relief. The plaintiff contended that the defendant ought to have pleaded the point in its Defence. Part 9 rule 9(2) of the District Court Rules provides: "In a notice of grounds of defence … the party pleading shall plead specifically any matter - for example, performance, release, any statute of limitation, extinction under Division 1 of Part IV of the Limitation Act, 1969, of a right or title, voluntary assumption of risk, causation of accident by mechanical defect not known to, or discoverable by, the defendant, fraud or any fact showing illegality - (a) which he alleges makes any claim, defence or other case of the opposite party not maintainable; (b) which, if not pleaded specifically, may take the opposite party by surprise; or (c) which raises matters of fact not arising out of the preceding pleading."

[62]

Paragraphs (a) and (c) did not oblige the defendant to point out a defect in the plaintiff's case (i.e. a failure to plead facts which would take the case outside the Modbury doctrine). Nor did paragraph (b): there is no obligation on a defendant to point out that there is a gap in the plaintiff's case, even though there is an obligation on a defendant to point out some additional matter of fact or law which could defeat the plaintiff's case and which if not pointed out might surprise the plaintiff. 49 What the defendant seeks to do in relying on the Modbury doctrine is to point out that the narrow sphere within which occupiers can be liable for the criminal activity of a third party does not exist on the facts pleaded and proved in this case. It was for the plaintiff to plead and prove the facts and demonstrate that they were within that narrow sphere. 50 In short, though the Modbury doctrine was not argued by the defendant at trial, it was for the plaintiff to deal with it. It was not a "point" to be raised by the defendant in defeasance of an otherwise sound case advanced by the plaintiff, but a matter which the plaintiff's case had to grapple with whatever the attitude of the defendant. 51 Where a point is conceded or abandoned at trial, it is difficult to agitate it on appeal, though not impossible: see the cases discussed by McHugh JA in Holcombe v Coulton (1988) 17 NSWLR 71 at 75-76. Where, though not conceded or abandoned, a point is simply not taken at trial, it can also be difficult to agitate it on appeal: an example is the defence of sharp practice by a plaintiff causing hardship to a defendant as an answer to an action in specific performance in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 437-8. The difficulty in agitating new "points" lies in the rule that: "a point should not be allowed to be taken for the first time on appeal in circumstances where, if the point had been taken below, evidence could possibly have been called which would have prevented the point from succeeding or would otherwise have been relevant to the issue which arose once the point was entertained. They do not lay down a principle that before a party can successfully resist an application to raise a new point on appeal it must establish the possibility that evidence could have been given which would have defeated the point. Of course, if the resisting party can show that there is a possibility that evidence could have been called which would have defeated the new point then, according to those authorities, the application for leave to rely on the new point should, in all but exceptional cases, be refused. It seems to me, however, that the reasons underlying that conclusion would apply equally to a case in which there was a possibility that the resisting party could have led evidence below which, although not decisive, would have had a material impact upon the decision." ( Tipper v Williams (NSWCA, unreported, 12 May 1993), Butterworths unreported judgments, pages 8-9 per Clarke JA).

[63]

However, these principles do not apply, because the defendant has not raised a new "point". Rather it is contending that the case pleaded and proved by the plaintiff at trial does not establish a relevant duty of care. Instead of the defendant raising a "point", it is contending that there is an inadequacy in the plaintiff's handling of a point raised in the first instance by the plaintiff herself. 52 The defendant might have endeavoured to strike out the Statement of Claim before filing a Defence on the ground that it did not plead the facts necessary to establish a cause of action. It might have endeavoured to have a separate question of law determined under Part 26 rule 5AA of the District Court Rules on the ground that as a matter of law, even if all the facts alleged in the Statement of Claim were assumed to be correct, no cause of action was stated. It might have submitted, at the close of the plaintiff's case, that there was no case to answer under Part 26 rule 7 by reason of an absence of any evidence satisfying the Modbury principle. It might have relied on the absence of any evidence satisfying the Modbury principle in final address. At either of the last two stages (which in this case were the same, since the defendant called no evidence) the plaintiff would have had considerable difficulty in reopening her case to meet any evidentiary deficit. Since at those stages the defendant's argument was an argument that there was no or insufficient evidence, it remained open on appeal. In a similar though not identical context, Dixon CJ said in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 372: "The second matter which I desire to mention is the power of the Full Court to enter a verdict for the defendant despite the fact that the defendant did not request the judge at the trial to direct the jury to find a verdict in the defendant's favour. At common law the Court in banc could not enter a verdict unless power to do so was reserved at the trial. Such a reservation was based upon a convention, although a traditional convention: see Edmond Weil Inc v Russell [(1936) 56 CLR 34 at 46] and the authorities there cited. The statutory power conferred upon the Supreme Court by s 7 of the Supreme Court Procedure Act 1900 takes the place of this practice. It is an independent power residing in the Full Court and is intended to avoid the necessity of a new trial existing at common law if no reservation had been made. To my mind O XXII, r 15 of the Rules of the Supreme Court does not assume to control the exercise of the power. Of course if the Full Court is of opinion that the plaintiff might have mended his hand at the trial, had the insufficiency of his evidence been pointed out on an application either for a verdict by direction or for a non-suit, doubtless that would affect the exercise of the power. But in a clear case where, on the state of evidence as the plaintiff necessarily left it, the defendant is entitled to a verdict, I do not see why a verdict in favour of a plaintiff who has not made out a cause of action should stand simply because at the trial the defendant went to the jury without asking for a direction. At worst it is a matter of costs." 53 In any event, on the pleadings it was open to the plaintiff to call all the evidence she wished to which was relevant to the Modbury principle. 54 It does not seem possible for her to have called any evidence, apart from what she did call, which either could have defeated the appeal to the Modbury principle or would have had a material impact on the application of the Modbury principle. The history of the premises, the nature of the attack, and the lack of any motivation for it save theft were as fully investigated as they could have been on the materials available. However, the plaintiff submitted that she could have called two new categories of evidence had the defendant made it plain that it was relying on the Modbury doctrine. The first category was evidence of her brothers and of Parry Ashrafi, a person recorded in the police records of the 12 March 1995 incident as a witness of it, about the particular incidents recorded in Exhibit H (the police reports). It is highly unlikely that the evidence of these people in 2000 about events more than four years earlier would have been more valuable than the contemporary evidence recorded in business records by the various police officers, who were, after all, professionally skilled at taking accurate notes, and who took them from persons who had every interest in giving the police officers a full and accurate account of events which were extremely fresh in their memories. In any event the extra evidence was not different in kind from Exhibit H. The second category of evidence which the plaintiff said she would have called related to the precautions which the defendant should have taken - the cost and effectiveness of security doors, security screens, sensor lights and the like. But this evidence went to issues which were at the heart of the case as run; and it went to breach of duty issues, whereas the Modbury doctrine goes to the existence of a duty in the first place. 55 The plaintiff relied on Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-647. That was a very different case. There both parties consented to a dispute being referred to a referee. One side lost before the referee, and a judge of the Supreme Court adopted the referee's report. The Court of Appeal declined to permit that side to take the point on appeal that there was a constitutional bar to the employment of the reference procedure in litigation involving the exercise of Federal jurisdiction. The losing party was precluded from raising the point, even assuming no evidence could have affected the possibility of the point succeeding, by reason of the waste of judicial resources and costs and by reason of the fact that the losing party was repudiating on appeal a stance it had adopted at all earlier stages. That is not the case here. In my opinion the Modbury arguments which the defendant wishes to advance on appeal may be advanced.

[64]

Is the Modbury doctrine relevant? 56 The facts in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411 were that the defendant was owner of a shopping centre. The first plaintiff was employed at a video store in the shopping centre. The shopping centre had an outdoor area for car parking. At night the car park was dark unless the car park lights were turned on. One evening the first plaintiff, after closing the video store, was attacked by three assailants in the car park as he walked to his car. The car park lights were not on at the time. The South Australian courts found for the first plaintiff. In the High Court Gleeson CJ, Gaudron, Hayne and Callinan JJ (Kirby J dissenting) held that the duty of the shopping centre owner as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first plaintiff resulting from the criminal behaviour of third parties on the land. 57 Gleeson CJ at [17] said that an occupier of land owes a duty to entrants in relation to its physical state and condition. The duty is not to make the premises "as safe … as reasonable care and skill on the part of anyone can make them": Jones v Bartlett (2000) 176 ALR 137 at [92] per Gaudron J; cf Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 339 per Brennan CJ. The duty is only to take what care is reasonable in the circumstances. But Gleeson CJ denied that an occupier of land ordinarily owes a duty to take reasonable care to protect lawful entrants from the criminal conduct of third parties. That is because "the common law does not ordinarily impose liability for omissions": at [26]. Occupiers lack the control and knowledge of the behaviour of unpredictable but potentially criminal third parties which they possess or ought to possess of the physical state of their land: at [29]; see also Hayne J at [108]. Liability depends on some "special" relationship, such as the relationship of employer and employee, school and pupil, bailor and bailee. (To these Hayne J added parent and person whom the parent's child may injure, and gaoler and prisoner whom other prisoners may injure: at [111]. Others may easily be imagined, e.g. the duty of a hospital to prevent deranged patients from injuring other patients.) 58 Gaudron J agreed with Gleeson CJ and also with Hayne J. Hayne J agreed with Gleeson CJ and in additional reasons for judgment generally to the same effect as those of Gleeson CJ, stressed the point that it was not enough to concentrate on the particular way in which the plaintiff was injured. At [109] he said: "The duty which the respondents alleged the appellant owed was not a duty about the lighting of the car park. The failure to light the car park was no more than the particular step which the respondents alleged that reasonable care required the appellant to take. It does not define the scope of the relevant duty any more than asking whether providing a fence at the particular point on the cliff where Ms Romeo fell defined the ambit of the duty which it was alleged that the Conservation Commission of the Northern Territory owed her [ Romeo (1998) 192 CLR 431; 151 ALR 263]. The duty which the respondents alleged that the appellant owed must be understood to have been a duty to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises. The particular step to which the respondents pointed as being reasonable was leaving on the car park lights. The particular criminal conduct of which complaint was made was assault occasioning bodily harm to the first respondent. The duty alleged cannot, however, be confined by those two features. If the appellant owed the first respondent a relevant duty of care, it was to take whatever steps were reasonable in all the circumstances to hinder or prevent any criminal conduct of third persons which injured the first respondent or any person lawfully on the premises. But the acts of those third parties resulted from the choices which they made. Moreover, they were choices which were, as I have said, not necessarily dictated by reason or prudential considerations. It was, therefore, a duty to take reasonable steps to attempt to affect the conduct of persons whom it had no power to control. No such duty has been or should be recognised."

[65]

He also said (at [113]): "The conduct which caused the first respondent's injuries was deliberate criminal wrongdoing. By its very nature that conduct is unpredictable and irrational. It occurs despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That is, such conduct occurs despite the efforts of society as a whole to prevent it. Yet the respondents' contention is that a particular member of that society should be held liable for not preventing it." 59 He said further (at [115]-[116]): "Framing the relevant question in this way draws attention to a fundamental consideration. The injuries which the first respondent suffered were caused by the wrongful acts of others. If those others could be identified and had sufficient assets to meet a judgment, the first respondent would have full compensation for his injuries. The present action is brought against a party who, if sued with the assailants, would be found liable to contribute little, if anything, to the damages awarded to the first respondent. Yet because the appellant was sued alone, it is said that it is liable for all the damage. To hold that the appellant owed a duty to take reasonable steps to prevent or hinder the attack on the first respondent is not only to hold the appellant responsible for conduct it could not control, it is to impose liability on it when its contribution to the occurrence, compared with that of the assailants, is negligible. … To accept the respondents' submissions would be to impose a duty which does nothing to deter wrongdoing by the appellant or other occupiers. Further, it would shift financial responsibility for the consequences of crime from the wrongdoer to individual members of society who have little or no capacity to influence the behaviour which caused injury." 60 Callinan J decided that for a duty to take care to prevent or reduce the chances of criminally inflicted injury or loss by third parties to be imposed on occupiers, "there must be something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant." He did not find anything of that kind in the case before him (at [147]). 61 Though the Modbury case offers the fullest analysis in the reports of the limits on the capacity of plaintiffs to recover by reason of the failure of defendants to prevent crimes by third parties, it is not inconsistent with traditional principle. There can of course be contractual liability for the crimes of a third party. Thus a decorator who contracted to carry out work on a plaintiff's house and left it unlocked for two hours, in which time a thief stole chattels from it, was held liable for their value: Stansbie v Troman [1948] 2 KB 48. But the general immunity in tort, as distinct from contract, can be illustrated in various ways. An employer owes no duty to an employee to prevent a third party stealing the employee's property (Deyong v Shenburn [1946] KB 227; Edwards v West Herts Group Hospital Management Committee [1957] 1 WLR 415 at 420 and 422). An employer owes a duty not to leave a drum filled with highly inflammable vapour in a place where it can easily be accidentally ignited, but no duty to take precautions against an arsonist workman igniting it deliberately (Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 at 31-32). While the occupier's duty is to protect not only the visitor's body but also the visitor's goods from damage due to defects in the premises, the occupier is under no duty to protect goods from the risk of theft by third parties (Tinsley v Dudley [1951] 2 KB 18). The duty of occupiers to prevent a property occupied from being used to commit crimes injuring others has been narrowly described in recent cases (P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342; Smith v Littlewoods Organisation Ltd [1987] AC 241; WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338). In short, "duties to safeguard from harm deliberately caused by others are unusual" (Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368 per Lord Hoffmann). 62 Further, neither the stress by Gleeson CJ, Gaudron J and Hayne J on the limited scope of positive duties to act, nor the stress by Gaudron and Hayne J on the relevance of control, can be regarded as idiosyncratic over-reactions to the extreme nature of the plaintiff's claim in Modbury's case. In Pyrenees Shire Council v Day (1998) 192 CLR 330 at [101]-[102], for example, McHugh J said: "As I pointed out in [ Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 326], from the time of the Year Books, the common law has drawn a distinction between causing damage by a positive act and 'causing' damage by a failure to act. The early forms of action gave no remedy for failure to prevent harm. The writ of trespass, historically the most important of the early writs for remedying wrongs, was available only for direct or forcible injury. Not until the action on the case was developed did the common law provide a remedy for omissions. Initially, both contractual and tortious wrongs were remedied by the action on the case because the distinction between 'rights ex contractu and ex delicto was by no means clear' [Sutton, Personal Actions at Common Law (1929), p 26]. When tort and contract separated, contractual wrongs came to be identified with actions in assumpsit while tortious wrongs came to be identified with the action on the case. Speaking generally, remedies for omissions were henceforth seen as remediable by the action in assumpsit, not case. Absent consideration or its equivalent, the common law generally imposed no obligation on a person to protect or help another. As Windeyer J pointed out in Hargrave v Goldman [(1963) 110 CLR 40 at 66], 'the common law does not require a man to act as the Samaritan did'. For that reason in most cases, the occupier of property owes no duty to a neighbour to secure the property so as to prevent thieves gaining access to the property for the purpose of robbing the neighbour's premises [ P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342]. The 'general rule' said Dixon J in Smith v Leurs [(1945) 70 CLR 256 at 262], 'is that one man is under no duty of controlling another man to prevent his doing damage to a third'. Nor does the common law generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another. … The careless or malevolent person, who stands mute and still while another heads for disaster, generally incurs no liability for the damage that the latter suffers. Harsh though the common law may seem to be, there are nevertheless strong political, moral and economic arguments that justify its approach, as Lord Hoffmann pointed out in Stovin v Wise [[1996] AC 923 at 943-944]. In the absence of a contract, fiduciary relationship or statutory obligation, the common law makes a person liable in damages for the failure to act only when some special relationship exists between the person harmed and the person who fails to act. By a person's failure to act, I mean that person's failure to act divorced from positive conduct by that person that causes damage such as the failure to brake while driving a car. A special relationship may arise from the ownership, occupation or control of land or chattels, from the receipt of a benefit or from an undertaking, assumption of responsibility or invitation which might induce the person harmed to act or to refrain from acting." 63 The passage in Stovin v Wise [1996] AC 923 to which McHugh J referred is: "There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the 'why pick on me?' argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call 'externalities,') the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. Except in special cases (such as marine salvage) English law does not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket. In Hargrave v Goldman , 110 CLR 40, 66, Windeyer J said: 'The trend of judicial development in the law of negligence has been … to found a duty to take care either in some task undertaken, or in the ownership, occupation, or use of land or chattels.' There may be a duty to act if one has undertaken to do so or induced a person to rely upon one doing so. Or the ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours. In Hargrave v Goldman the High Court of Australia held that the owner and occupier of a 600-acre grazing property in Western Australia had a duty to take reasonable steps to extinguish a fire, which had been started by lightning striking a tree on his land, so as to prevent it from spreading to his neighbour's land. This is a case in which the limited class of persons who owe the duty (neighbours) is easily identified and the political, moral and economic arguments which I have mentioned are countered by the fact that the duties are mutual. One cannot tell where the lightning may strike and it is therefore both fair and efficient to impose upon each landowner a duty to have regard to the interests of his neighbour. In giving the advice of the Privy Council affirming the decision ( Goldman v Hargrave [1967] 1 AC 645) Lord Wilberforce underlined the exceptional nature of the liability when he pointed out that the question of whether the landowner had acted reasonably should be judged by reference to the resources he actually had at his disposal and not by some general or objective standard. This is quite different from the duty owed by a person who undertakes a positive activity which carries the risk of causing damage to others. If he does not have the resources to take such steps as are objectively reasonable to prevent such damage, he should not undertake that activity at all." 64 There is ample authority illustrating the "relationships" to which the High Court referred in which a party has a duty to protect another from the criminal conduct of a third.

[69]

(e) In some circumstances gaolers owe a duty to take care to prevent prisoners being injured in gaol, for example, by fire (Howard v Jarvis (1958) 98 CLR 177), and to prevent persons being injured by the crimes of prisoners, whether they be prisoners who have departed from custody (Greenwill v Prison Commissioners (1951) 101 LJ 486 (theft and malicious damage to property); Thorne v State of Western Australia [1964] WAR 147 at 151 (duty to prisoner's wife assumed if gaoler knew that prisoner was likely to attack his wife); Dorset Yacht Co Ltd v Home Office [1970] AC 1004 (malicious damage to property)) or prisoners who injure other prisoners in gaol (Ellis v Home Office [1953] 2 All ER 149 (if the gaoler knew or ought to have known of the risk of plaintiff being physically attacked); L v Commonwealth of Australia (1976) 10 ALR 269). 65 These exceptions can be tied back to the control criterion which in significant measure underlies the main principle. The relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee's interests inter alia because of the control which the employer has over the incidents of the relationship. The relationship of school and pupil is one in which the pupil can be exceptionally vulnerable by reason of youth and inexperience and in which the school has a measure of control. It is inherent in the relationship of bailor and bailee that the bailee has a duty to take reasonable care to keep the goods bailed safe against third parties, including criminal third parties, because the bailee, by reason of its control of the goods, is in the best position to fulfil it. Strangers cannot control the children of others, though parents are supposed to be able to. A gaoler has control over prisoners and "control imports responsibility": Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1055 per Lord Pearson. 66 The High Court made it plain that the "special relationships" do not constitute a closed list of categories; nor are the boundaries of each particular category fixed, because ultimately each category rests on particular circumstances which make it just to impose liability. A famous instance of particular circumstances of that kind is Haynes v Harwood [1935] 1 KB 146 where the defendant's carter created a source of danger by leaving a horse-drawn van unattended in a crowded street. The horses bolted when a boy threw a stone at them. A police officer who suffered injuries in stopping the horses before they injured others was held entitled to recover damages from the defendant. To be rendered liable for having created a source of danger, of course, is to be rendered liable for more than mere inaction. Indeed the category of "special circumstances" or "a special relationship" can obviously overlap with cases where liability is found because of "a high degree of certainty that harm will follow from lack of action". Frequently recurring crimes might establish a high degree of certainty that harm will follow, and also evidence special circumstances, for example the case presented but not proved in Eggins v Canberra Enterprises Pty Ltd (1974) 2 ACTR 66 (user of toilet at drive-in theatre injured by fireworks being thrown at him against a background of earlier instances of the abuse of fireworks). In Smith v Littlewoods Organisation Ltd [1987] AC 241 Lord Goff gave various other instances of possible liability. One was the liability of a person left alone in a house who has entered as licensee of the occupier and thereby assumed responsibility to secure it against intruders (at 272). Another arises where one occupier of land permits or causes persons to gather on the land, thereby impairing the enjoyment of a neighbour's land (at 272). Neither he nor the High Court suggested that there was anything rigid about the exceptions to the general principle that an occupier is not liable for injury to others caused by the criminal acts of third parties on the occupier's land. 67 The plaintiff submitted that the Modbury case did not apply. Alternatively, she submitted that the avenues of success for plaintiffs permitted by the Modbury case applied. 68 The submission that the Modbury case had no application to the present circumstances must be rejected. That case, like this, involved the liability of an occupier of land for injuries inflicted on an entrant on the land by the criminal conduct of third parties. 69 The defendant in the present case had no more control over the plaintiff's safety than the occupier had in relation to the first plaintiff in the Modbury case. Both the present plaintiff and the first plaintiff in the Modbury case, had they turned their minds to the question, no doubt would have assumed the premises to be safe. Though the first plaintiff in the Modbury case was employed by an employer who leased the video shop from the defendant, there is no suggestion in the Modbury case that a plaintiff not so employed would have been in any better position, for example, a customer leaving the video shop just before it was closed while the car park was dark. The ascription by the plaintiff of the harm she suffered to a defect or danger in the physical state or condition of the premises is similar to the characterisation by Hayne J of the allegation in the Modbury case as being an allegation of "breach (and, by necessary implication, the scope of the duty alleged) concerning the state of the premises".

[74]

The cases referred to in footnote 124 are Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1997] 1 VR 168. Chordas' case concerned the duty of a hotel keeper towards patrons and in particular the duty of a hotel keeper to eject intoxicated patrons who might cause harm to others. (See also Wormald v Robertson (1992) Aust Torts Reports 81-180; Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998.) Sartori's case concerned the duty of an employer to an employee to prevent the employee being injured on premises which were supposed to be closed so as to exclude members of the public. 71 The plaintiff did not submit that she fell within the category referred to by Hayne J. This is understandable, since the present circumstances are quite remote from the authorities referred to by Hayne J. It is indeed questionable whether the assailant can be said to have had "access" to the premises by the mere act of inserting his arm through the gap. 72 The plaintiff did submit that the second avenue of success was available, on the basis that there was a high degree of foreseeability in the criminal conduct that injured her. However, whether or not there was a reasonably foreseeable risk of injury, or even a reasonably foreseeable risk of the injury which in fact happened, the risk was not such as to answer the description employed by Hayne J ("a high degree of certainty that harm will follow from lack of action") or Gleeson CJ ("a high degree of foreseeability, and predictability"). 73 The plaintiff also submitted that the first avenue of success was available on the basis that she fell within a special relationship of the type discussed in the Modbury case, or was in a position analogous to one of those relationships. 74 First, the plaintiff pointed out that she was sleeping in the room normally occupied by her brother Mohammed, and that he was an employee of the defendant. The defendant owed him a duty to prevent harm from the criminal acts of third parties, and she submitted that she could rely on that breach of duty to him. Even if one assumes in favour of the plaintiff that the defendant did owe a relevant duty to Mohammed, there are two difficulties with this submission. 75 One difficulty is that it is highly questionable whether the relationship between Mohammed and the defendant, even assuming what the skimpy evidence does not permit one to infer, namely that it was an employer-employee relationship, is the type of employee-employer relationship which the High Court justices had in mind in the Modbury case for the purposes of their discussion of "special" relationships. The evidence was simply that the motel was owned by the plaintiff's parents and managed by the plaintiff's brothers. The cases which Gleeson CJ cited to illustrate the employer-employee relationship as a special one included Public Transport Corporation v Sartori [1997] 1 VR 168, in which the appellant had hundreds of relevant employees wholly independent of it. In another of the cases cited by Gleeson CJ, Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070, though the employers in that case did not have a large number of employees, they were quite independent of them. In the third case he cited, Fraser v State Transport Authority (1985) 39 SASR 57, the employer had numerous employees and they too were independent of the employer. The commercial activities of the Ashrafinia family were conducted through a corporate vehicle but they need not have been. Whatever type of employer-employee relationship existed between the corporate vehicle and the brothers, it is doubtful whether it is the type of employer-employee relationship spoken of in the Modbury case as illustrating a "special relationship". If it were, it would mean, to take one contention advanced in the particulars of negligence appearing in the Statement of Claim, that Mohammed as manager would have to "warn" himself as employee of the dangers of sleeping with the door open, would have to provide "warning signs" to himself about the danger of injury from intruders, and would have to instruct himself at all times to secure the sliding door. The plaintiff pointed out that a family member employed by a family company can sue it as employee for providing an unsafe system of work even though he himself helped put the system in operation (Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611). But it does not follow that a family member employed by a family company is in an employment relationship for the purpose of rendering the family company liable for the criminal acts of a third party. In any event, if the breach of duty had been the fault of Mohammed alone, he could not have complained about it (Nicol's case at 618 and 622). However, it is not necessary to rest a rejection of the plaintiff's submission on this reasoning, in view of the second difficulty which exists. 76 The second difficulty with the submission is that it is fundamentally fallacious. Duties of care are owed to particular plaintiffs or classes of plaintiff. Fleming, The Law of Torts (9th ed, 1998), pp 158-159 says: "To be liable for an injury he has caused, the defendant's carelessness must not only have been in breach of a duty to exercise care, but the duty must have been owed to the plaintiff. In other words, the latter cannot take advantage of the fact that the defendant happened to be committing a wrong to someone else; he must bottom his claim on violation of a right of his own."

[79]

The submission assumed, but did not demonstrate, that the duty owed to protect a paying guest from violent crimes committed by persons standing outside the building is both clear and favourable to recovery in this case. 80 The plaintiff cited no authority to support the proposition that the relationship between paying guest and motel-keeper was a special relationship within the meaning of the Modbury case. Gleeson CJ at [35] did contemplate that an occupier could by contract assume a duty to take reasonable care to prevent harm to lawful guests from the criminal behaviour of third parties. But the plaintiff in her Statement of Claim did not plead either that she had a contract with the defendant or that there was any relevant term in it. Nor did she plead any relevant term in any standard contracts which the defendant entered with its paying guests at the motel. She submitted to this Court that the defendant had agreed with her "to provide safe sleeping quarters". There is no evidence that safety was discussed. No doubt it would have been assumed had the minds of the family members turned to it just as any guest staying in the private home of a relative would assume it. But that is very different from an agreement to provide it, or an actionable assumption of responsibility to provide it. 81 In view of the very limited attention given to the question in submissions, it is undesirable to rule out the existence of a relevant duty owed by the defendant to its paying guests in tort. For the sake of argument, let it be assumed that there is such a duty. Even if there is such a duty, the attempt by the plaintiff to take advantage of it suffers from the same fallacy as her attempt to take advantage of a duty owed by the defendant to her employee brother Mohammed. Whatever duty would be owed by the defendant to a paying customer housed by the defendant is not the same as the duty to her. She was neither paying, nor a customer, nor housed by the defendant. She was a gratuitous guest of her mother and brother.

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Cases Cited (35)