Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding [2006] NSWDC 113 | Case summary

Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding [2006] NSWDC 113 | Case summary | Zoe

[21]

11 The next question is: when did they leave the Leichhardt Hotel? Ms McNally estimated 9:30pm and Ms Nobles estimated anywhere between 9pm and 10:30pm. In my view those were only guesses. One needs to work backwards. The plaintiff's injuries were sustained in what became a brawl at the Bald Faced Stag Hotel. That brawl must have occurred shortly after 1am on Sunday 18 October 1998. The police were called at 1:10am on that day. The ambulance which took Ms McNally to hospital was booked at 1:17am and arrived at the Hotel at 1:24am. This was the first ambulance to arrive at the scene. The police arrived before the ambulance, i.e. before 1:24am. Clearly the brawl erupted shortly before 1:10am when the police were called. The events at the Bald Faced Stag Hotel described by Ms McNally could not have taken any more than half an hour: the earliest they arrived there would have been 12:30am. The proposed route or a usual route between the two hotels would have taken no more than half an hour to walk: the earliest they left the Leichhardt Hotel would have been midnight. It appears to me to be more probable than not that the three ladies left the Leichhardt Hotel about midnight. They would have had been drinking in that hotel for approximately 7 hours. If one accepted the plaintiffs' estimates of the time of their departure from the Leichhardt Hotel, their movements over a period of two and a half or three hours would be "unexplained". However, there is no suggestion that they visited another hotel en route, or a restaurant or café or a friend's house. The only plausible explanation is that they lingered on at the Leichhardt Hotel for longer than they thought. The reason offered for leaving earlier than midnight suggests to me rationalisation: the Leichhardt Hotel generally becoming quiet at 9:30pm when the patrons left to go to nightclubs. This may represent what usually happened, not what actually happened on this night. Accepting as I do that the three ladies stayed at the Leichhardt Hotel for approximately 7 hours, I have no hesitation in finding that they were moderately affected by alcohol prior to leaving that hotel. Ms McNally admitted as much in her statement to the police (Ex.H).

[45]

30 The evidence of Ms Nobles on this gives greater detail but, for reasons that I have already given, is likely to be unreliable. In particular she gave evidence about going to the door between the two halves of the hotel, through which Ms McNally identified her assailant. That raised an issue as to whether it was physically possible to identify someone in Ground Control through the glass door. On this, Ms Nobles was challenged before Finnane J and before me. Mr Drennan gave evidence on this issue before his Honour and before me. Before his Honour, Mr Drennan said that there was a glass brick wall around the poker machine area from the ground "almost to the ceiling". This would have made it almost impossible to identify anybody in Ground Control: the plan (Ex.2) and the evidence of Mr Drennan before Finnane J establishes that. Before me, Mr Drennan said that the wall " wasn't complete at the actual time". That raised a secondary issue as to whether Mr Drennan had visited the Hotel since 18 October 1998. He could not remember doing so before Finnane J but did remember doing so when he gave evidence to me. Those issues do not, in my opinion, need to be determined but if it were necessary to determine them, I would determine them against the defendant for the following reasons: (a) As I have already stated, I formed a favourable impression of Mr Drennan and accept that he did his best to tell me the truth; whilst there is inconsistency between that which he told Finnane J and that which he told me, I formed the view that he was deeply reflecting when he gave evidence to me: the significance of what he said earlier may not have dawned on him until later; (b) Mr Drennan's evidence before Finnane J indicates, in places, that he had to come out of the poker machine area to enter Ground Control to see what was happening (Ex.N, p.67) but also indicates that one could see into Ground Control from the poker machine area (Ex.N, p.70, ll 33-38); before me, Mr Drennan said that he could see what was happening from where he was playing a machine (T79, ll 26-38). (c) it would have been very easy for the defendant to have adduced evidence as to when the glass wall was completed, e.g. from the builder who had built it or was building it, the defendant himself, any member of staff, any regular patron, but no attempt was made to do so.

[73]

55 His Honour pointed out that a "duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such a duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises." His Honour went on to say this: "The exceptional nature of the relevant duty of care means that a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons (Chordas at 98-99. See also Allen v Babrab , Inc 43 ALR 4th 278 and following annotations for the American case law). The case based upon absence of security personnel in the carpark was rejected in the following terms: There was nothing that occurred inside the hotel ... which would have alerted any reasonable person in the position of the [respondents] that there was likely to be anything adverse occur to Miss Oxlade when she reached the carpark. This suggests that a hotelier will only be liable to a patron when (in the light of events occurring within the hotel premises) he or she ought reasonably to have suspected that the particular patron was at risk. However, the relevant duty of care is not so circumscribed. In Chapman v Hearse (1961) 106 CLR 122, the High Court emphasised (at 120-121) that: ...one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. See also Assaf v Kostrevski , Court of Appeal, unreported, 30 September 1998. Earlier in his judgment, the learned judge had found that the lighting in the carpark was not bright. And he had held that "it is a common experience that things like this occur to both males and females on licensed premises" (referring to the harassment of the appellant). The pub was crowded on the night in question. The possibility that unaccompanied female patrons might be harassed as they left the hotel was not just a matter of judicial notice ("common experience" in the trial judge's words). This was an inference properly to be drawn from the events that occurred on the evening in question, which do not appear to have been atypical. It was natural that intoxicated patrons would arrive in numbers at the carpark at or about closing time. After all, this was a hotel with a public bar and a fairly large carpark."

[75]

57 Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226 was a decision of Gray J. The plaintiff was assaulted and injured not in the clubhouse of the defendant but on the land outside of it, which was part of the defendant's land. The defendant was aware of the offender's mental condition, of his agitation, and had refused to serve him alcohol because of his annoying and disruptive behaviour. The president of the defendant, who was working behind the bar, asked the offender to leave and the offender did so. There was no incident in the clubhouse as the offender left. Outside the clubhouse, the offender assaulted the plaintiff, without any provocation by the plaintiff. A magistrate had dismissed the plaintiff's claim but he was successful on appeal. Commencing at [29] Gray J said: "These circumstances gave rise to a foreseeable risk that Mr Ravesi may continue to behave in a disorderly and offensive manner. There was a risk that was not far fetched and fanciful that Mr Ravesi's conduct may expose patrons to a risk of injury. In these circumstances the club failed in its duty of care to Mr Bragg by not having Mr Ravesi escorted from the club premises. It would have been simple and straightforward to have one or more appropriate club personnel escort Mr Ravesi from the premises and make arrangements for his safe journey home or as otherwise directed. This was not done. The duty to remove Mr Ravesi included the need to escort him from all areas frequented by patrons. This included the outdoor area where Mr Bragg was with friends. Further steps could have been taken to protect patrons. All patrons could have been warned so that they might be on notice that Mr Ravesi was leaving and may behave in a disorderly or offensive manner. This did not happen. [30] These steps represent the minimum action necessary to maintain control of the premises. It was not enough to simply request that Mr Ravesi leave. Patrons remained exposed to a risk of offensive and disorderly behaviour. The request to leave was inadequate and did not discharge of the club's duty of care towards its patrons including Mr Bragg."

[76]

58 These authorities establish that the hotelier has a duty that includes a duty to those in the car park of the hotel and to those in "areas frequented by patrons". Nevertheless the defendant has submitted that the first assault occurred outside his premises (even though I have held it to occur on his land) and, theoretically, the major assault might have occurred off the defendant's premises. With great respect, this cannot be right. I am here dealing with the common law, not some statutory distinction: see Williams v Ducon Condenser Ltd [1949] WCR 122, where a girl riding a bicycle home from work, lost control of it when it passed over an uneven surface outside a gate of her home and she was thrown from the bicycle, receiving injuries by falling on the driveway inside the gates of her own home's land but failed to receive compensation because she had "arrived home". If a brawl erupted in the Hotel, for which the defendant were liable, and a person was thrown through an entrance, landing on his head on the footpath which caused, say, a closed head injury, the defendant could hardly deny liability. Equally, if the brawl spilled out into the public street, that patron would in my view, be able to recover damages. I am here dealing with an inner city hotel whose entrances lead directly onto the footpath, a public place, not with a suburban hotel or club, set back from the street, surrounded by garden or lawn, with large car parks or the like. All I need to say is that I accept that the defendant's duty to control patrons upon is premises includes a duty to other patrons in the immediate vicinity, of his premises. I do not suggest, for example, that the duty extends to protect patrons who leave the premises and are set upon by other former patrons laying in wait in some laneway close by unless, of course, this be well known to the hotelier. It appears to me to be a question of degree. Here the defendant had had drawn to his attention what one of the patrons did immediately outside of Ground Control. It was reasonably foreseeable that it could happen again.

[81]

63 What could the defendant, through Mr Spears, have done? He could have turned out the male gang member identified to him by Ms McNally. If he perceived that because of the gang's solidarity that may have been impossible or impracticable or have led to violence, he could have requested the police to do so. In the present matter that would have served a second purpose: the police could have apprehended the offender and recovered Ms McNally's wristwatch. There would have been a delay before the police arrived of say, 15 to 20 minutes. However, the three ladies had bought drinks. Mr Spears could have invited the ladies to consume them whilst waiting for the police to arrive. They would have been deterred from seeking self-help. If this had occurred, the major assault would not have occurred. Senior Constable Gooley gave this evidence: "Barry: Q: If before this affray had erupted at this hotel the manager telephoned had telephoned and said that there were patrons in the hotel who he wished to leave, that they had refused to leave when asked, and he needed police assistance, what would have been the practice in 1998 in relation to such a call had you received it on your radio when you were on duty at 1:10am? A: We would've attended the hotel and spoken with the person, spoken with the manager, and spoken with the persons who were refusing to leave, and dealt with them accordingly, be it through the Liquor Act or if they left the premises then, there's always Q: If when you had arrived it had come to your notice that a person had earlier been assaulted on the premises and their watch had been stolen by one of the persons that the manager of the hotel wished to leave the premises, if that person was still on the premises, when you arrived what would your practice have been? A: We would have detained that person to investigate the offence and if there was evidence to support the allegation then would've taken the necessary action, required from that. Q: What is the kind of evidence to support the allegation that you've been looking for? A: Well, it's the evidence that we gather is not in terms of to prove the offence rather than to establish what has happened. HH: Q: For example, if you were called to the hotel and one of the patrons of the hotel told you that an identified male person over there had kicked her, had punched her, knocked her to the ground, kicked her in the stomach and then stolen her watch, what would you have done? A: We would have taken the details from the victim, taken a statement and detained the person who has been identified as the suspect, interviewed them in relation to it and spoken to witnesses at the scene who may have seen what has happened, and from whatever evidence we gathered we'd either charge the offender or release the suspect depending on which way the evidence indicated. What I'm saying is, if there's evidence there that supports that claim then we'd charge him, if there's not then we wouldn't. Q: But if you went into the hotel and a lady said to you, look, that man over there just kicked me, punched me and stole my watch, I would have thought, constable, the first thing you would have done is go and arrest him lest he decamp? A: Obviously if he tried to leave then we'd stop him, if he's standing up the back of the hotel unaware of what we're doing were not going to create a fracas while we can still take some details."

[89]

70 The judgments delivered in this case must be considered in the light of the facts in consideration. The facts of the present matter are very different. Modbury states the general proposition that the duty of the occupier of land does not extend to taking reasonable care to prevent physical injury to another resulting from the criminal behaviour of third parties on that land. That there are exceptions to this general principle is acknowledged, but the present defendant says that he is not within the category of an acknowledged exception. With great respect, I am unable to accede to that proposition. On the question of exceptions, or "special relationships", Gleeson CJ said at [18]: "The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises (32). [19] The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debateable. The men were not enticed to the car park by the appellant. They were strangers to the parties. [20] In Smith v Leurs (33), Dixon J said: 'It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.' [21] Control was the basis of liability in Dorset Yacht Co Ltd v Home Office (34) , where Lord Morris of Borth-y-Gest (35), after citing the above passage, said that the case was one of a special relationship involving a duty to control another's actions. [22] Reliance is sometimes the basis of a duty of care. Here there was no relevant reliance. Why the video shop could not have been closed in sufficient time to enable employees of the shop to walk to their cars before the lights went off (assuming they went off at 10 pm) was not investigated at the trial. There was nothing to prevent the first respondent's employer from making such arrangements for the security of its employees as it saw fit. The lease did not give the appellant the exclusive right to take measures for the safety and security of employees and customers of tenants. [23] The present is not relevantly a case of assumption of responsibility. The respondents submitted that the appellant assumed responsibility for the illumination of the car park. That submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car park, controlled the lights in it, and decided when they would be on and when they would be off. But the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties. [24] In Kondis v State Transport Authority (36) Mason J said: ' The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton (37) the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety , in circumstances where the person affected might reasonably expect that due care will be exercised.' (Emphasis added.) [25] The fact that, as occupier of the car park, the appellant had the capacity to decide when, and to what extent, it would be lit at night, does not mean that the appellant assumed a particular responsibility to protect anyone who might lawfully be in the car park against attack by criminals. The policy adopted by the appellant as to the hour at which the lights went off suggests that the purpose of the lights was to attract customers, rather than deter criminals. Whether or not that is so, there is nothing in the evidence to suggest that the appellant assumed a responsibility which, at least in the case of employees of tenants of the Centre, might ordinarily be expected to be a responsibility of their employers. It was the first respondent's employer which decided the hour at which the video shop would close, and what, if any, arrangements would be made for the after-hours security of employees. The argument provides an example of what Gummow J, in Hill v Van Erp (38), described as '[t]he use of the imprecise and beguiling but deceptively simple terms known reliance' and assumption of responsibility'.' [26] Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee (39), school and pupil(40), or bailor and bailee (41)."

[91]

72 Paragraphs [110], [111] and [117], in the judgement of Hayne J also need to be considered (at p.292, pp.293-294): "[110] Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm's way (147). The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken (148). [111] In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners (148). Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child (150). [117] Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises (155). I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action.

[95]

76 Guildford Rugby League Football and Recreational Club Ltd v Coad [2001] NSWCA 139 was an appeal from Delaney DCJ who had found for the plaintiff. The plaintiff had been injured after falling on broken glass whilst attempting to avoid a fight between two others, which occurred as a result of the aggression of one those persons. The appeal was allowed. It was held that the defendant had taken all reasonable steps to prevent further disturbances between the two. The evidence showed that after an initial altercation the protagonist showed no further signs of aggression and as such no reasonable person in the defendant's position would have taken steps to evict him. Whilst there was sufficient evidence to support a finding that the defendant should have employed security guards on the Sunday when the fight occurred, in the circumstances it was held to be unlikely that security guards would have prevented the fight and consequential injury to the plaintiff. Davies AJA (dissenting) referred to Chordas and cited the passage from it, which I have already cited. His Honour continued, commencing at [7]: "In this appeal, counsel did not dispute that that passage describes the content of the duty of care in a practical way, although, of course, Australian authorities, such as Wyong Shire Council v Shirt (1980) 146 CLR 40 dealing with issues of proximity and foreseeability, must be applied. [8] A manager of licensed premises has a more onerous responsibility than has a manager of non-licensed premises, because of the well-known effect of alcohol upon those who consume it. Alcohol tends to reduce inhibitions and to relax control. This is a factor of which proprietors and managers of licensed premises are well aware. It was the factor, which, in Oxlade v Gosbridge Pty Ltd (unreported, Mason P, Sheppard and Fitzgerald AJJA, 18 December 1998), led the Court to conclude that the harassment of a single female patron leaving a hotel at closing time was a sufficiently likely event as to have been reasonably foreseeable."

[97]

78 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 did not involve the licensed part of premises. The plaintiff had slept overnight at a motel managed by her brothers in a ground floor room occupied by one of her brothers. About 7am the plaintiff was hit on the head by an iron bar wielded by a person unknown outside the building through a gap between the sliding door and the wall of the room. The door had been left 15cm open, but could not be opened further by the offender. Black DCJ found for the plaintiff but the appeal was allowed. The principal judgment was given by Heydon JA (as he then was). Mason P and Handley JA concurred. Heydon JA considered whether the "Modbury doctrine" was applicable to this matter. Commencing at [64], his Honour said: "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.(a) Employers must take reasonable care to protect their employees from the criminal acts of third parties whether on premises occupied by the employer ( Public Transport Corporation v Sartori [1997] 1 VR 168) or in other places where the employee is carrying out duties for the employer ( Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 (manager attacked while delivering restaurant takings to bank); Fraser v State Transport Authority (1985) 39 SASR 57 (bus driver attacked while waiting in dangerous area); McLean v Tedman (1984) 155 CLR 306 (garbage collector struck by negligently driven car while carrying garbage humper across road); Pacific Access Pty Ltd v Davies [2001] NSWCA 218 (sales consultant attacked while visiting premises of client in Port Morseby)). This duty of employers flows from their duty to take reasonable care in establishing, maintaining and enforcing a safe system of work in the sense of safeguarding employees from unreasonable risks in the methods by which work is undertaken.(b) Schools can owe duties to pupils to prevent crimes being committed against them at school or in the course of journeys to or from school ( Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 81-399 (pupil of one school hit by stick thrown by pupil of another school while waiting for a bus 400 metres from school)).(c) Bailees of chattels normally owe a duty to bailors to take reasonable care to keep the chattels safe from the crimes of third parties ( Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644 (wool broker obliged to take reasonable care to prevent wool being destroyed by arsonist)).(d) Parents owe a duty to take care to prevent their children injuring third parties by their conduct, including their criminal conduct ( Smith v Leurs (1945) 70 CLR 256; Curmi v McLennan [1994] 1 VR 513).(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."

[98]

79 Under heading "Is any exception to the Modbury doctrine available?" his Honour said this at [70]: "The next issue, then, is whether the plaintiff can utilise one of the avenues for success left open by the High Court in the Modbury case. There appear to be three possible avenues for success. (i) The first avenue is the existence of special circumstances or a special relationship. Gleeson CJ at [35] spoke of 'some special relationship of the kind earlier mentioned', ie relationship exemplified by those between employer and employee, school and pupil, or bailor and bailee. Callinan J spoke of 'something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant' (at [147]). (ii) The second avenue for success is where the occupier has 'a high degree of certainty that harm will follow from lack of action': see Hayne J at [117] and Gleeson CJ at [30] and [34]. (iii) The third avenue is left open as a possibility by Hayne J in the following passage:"there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises.[155] I would wish to reserve for consideration in a case in which they are raised the questions that are presented of a complaint of that last kind." The cases referred to in footnote [155] 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."

[101]

82 The Court (Brooking, Charles and Chernov JJA) delivered a joint judgment. Commencing at [33] their Honours said: The duty of care and criminal acts "The club says it owed the plaintiff no duty of care relevant to the harm which befell him - injuries inflicted by a vicious ruffian. It relies on what Dixon J said in Smith v Leurs : 'It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are a source of a duty of this nature.' And the club relies especially on what was laid down by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil3 about the limited circumstances in which there will or may be a duty to take reasonable care to protect a person from the criminal behaviour of another. Those circumstances do not exist in the present case, says the club. It goes on to raise a point which could not have been put forward in Modbury , saying that it would not be politic to recognise a duty of care owed to the plaintiff in relation to injuries sustained as these were. The Modbury case distinguished [34] We think that these submissions are unsound. The facts in this case bear no resemblance to those in Modbury , where the occupier of a shopping centre was held to owe no duty of care to the employee of a video rental store there who was attacked and injured at night by assailants in an unlit car park. The criminals in Modbury were in no sense under the control of the defendant. Its supposed negligence lay in its failure to light the car park, the lights having evidently being turned off at 10 pm, half an hour before the attack. [35] Here the ruffian Holton could not properly be described as not under the control of the club. It did in fact fail lamentably to control him, and this is the only sense in which he was not under its control. He was allowed to misbehave, out of control, when he should have been kept under control by the club, which had invited him onto its premises and allowed him to remain there for the purposes of its business (for present purposes) of conducting social functions on its licensed premises at which it sold liquor to the patrons. The particular function was to begin, with early arrivals, at about 7pm and to end at about 1am. More than 400 patrons were to attend. No doubt exists about the legal right of the club to eject drunken or disorderly persons: by statute it had the duty to do so. 4 Crowd controllers have for many years been a fact of life in this State. We have already mentioned the legislation which has since 1990 required them to be licensed and required the keeping of a register containing details of incidents calling for the removal of a person. The club regularly employed crowd controllers and did so on this night. We have already mentioned the expert evidence about the appropriate ratio of controllers to patrons in a venue of this kind. A business which generates disorder [36] Quite apart from what the expert and other evidence disclosed in this case, it is a matter of common sense and experience that, where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time, there is a danger of drunkenness and violent and other offensive behaviour. There is a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate. What the club was really doing here was, in the course of its business, creating a potentially dangerous situation on its own premises, as it recognised, even before the night began, by its engagement of five crowd controllers. Crowd controllers are there to control crowds; 5 they are there because of the danger that things will get out of control, notably, one might add, in relation to physical violence. As the regulations already referred to show, one of the functions of the crowd controller - again this is only a matter of common sense and common experience - is to assist in maintaining order by removing disorderly persons from premises. Persons in the position of the club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty - we are not here concerned with rights of action for breach of a statutory duty - to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises. [37] It is difficult to imagine a greater contrast between the facts of the present case and those of Modbury . The club concedes that it owed a duty of care to patrons to protect them against attacks by other patrons on the premises and that if the plaintiff in the car park here had been, not a member of the police force, but a patron, then no question would have arisen about the existence of a duty of care in relation to the kind of harm done. In our opinion a duty of care was owed to the plaintiff."

[107]

88 The principal judgment was given by Heydon JA, with whom Mason P and Hodgson JA concurred. His Honour dealt with the "Modbury doctrine" as he had in Ashrafi and then considered whether a "special relationship" existed. Commencing at [89] his Honour said: "If new categories of 'special' relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law - indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court. That conclusion is fortified by the fact that Gleeson CJ was not prepared, because it was not necessary to do so, '… to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour': (at 268 [34]). It is also fortified by the fact that Hayne J specifically left the matter open: (at 293 [117]). And it is fortified by Hayne J's decision to reserve consideration of a different question, namely whether an occupier owes a duty of care to control the criminal conduct of third parties by failing to control their access to or continued presence on the premises: (at 293 [117]). When judges of the High Court decide to leave matters open for consideration in future cases, they do so because of a consciousness that to create an exception to the principle precluding recovery for the criminal acts of third parties is to take an important step not to be embarked on without careful consideration in a particular case requiring the step. The making of significant changes in the law by taking steps of that kind is, if not beyond the competence of intermediate appellate courts, something not to be done lightly. It is better for these matters to be left open for the consideration of the High Court."

[112]

93 TAB Ltd v Atlis [2004] NSWCA 322 dealt, inter alia, with the question of the extent of the duty of care of the occupier of a betting shop, not the occupier of licensed premises. Mason P (dissenting) and Ipp JA (with whom Beazley JA agreed) accepted that the duty of care extended to the taking of reasonable measures to control rowdy and dangerous patrons whose activities had the potential to threaten the safety of other patrons. Commencing at [33] Ipp JA said: "As regards the duty of care question, the claimants relied on Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. They submitted that the circumstances did not impose on the claimants a duty of care to take reasonable steps to prevent patrons of the TAB from suffering harm by reason of the criminal behaviour of third parties. [34] In Oxlade v Gosbridge Pty Ltd (unreported, NSWCA, 18 December 1998) Mason P said: 'It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises.' See also Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 and Gordon v Tamworth Jockey Club [2003] Aust Torts Reports 81-698. [35] Such a duty is capable of being extended in scope. In my reasons in South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113(with which Heydon JA and Santow JA agreed) I said (at 137, [152]): '[The general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant] ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.' Nothing in the reasons of the High Court in this case ( Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 78 ALJR 933) is inconsistent with these remarks. [36] The opponent complains that the claimants negligently failed to control the continued presence of the two young men on the premises. The facts in the present case, therefore, differ fundamentally from Modbury . In fact they fall squarely within the possible exception to the rule in Modbury explained by Hayne J (at 293-294 [117]). [37] In Modbury Hayne J (at 292 [112]) observed that '[t]he occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land'. Hayne J remarked that that power of control established a relationship between occupier and entrant that could suffice to create a duty of care. [38] Accordingly, while it is true that no liquor was sold at the TAB, that is by no means conclusive of the question. [39] Foreseeability of harm is an important factor in this context. It is very much to the point that, by the time Mr Youngman spoke to the two men, he realised that their activities on the claimants' premises constituted a risk of injury to the other patrons. [40] In my view, the circumstances were such as to give rise to the imposition of a duty on the claimants to take reasonable steps to prevent injury to the TAB patrons from the activities of the two men. This conclusion is simply the product of the concept of reasonableness: see Tame v State of New South Wales (2002) 211 CLR 317 per Gleeson CJ at 330, [8]."

[113]

94 I was also referred to Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168, an unsuccessful appeal from a decision of Black DCJ. The facts are set out in the trial judge's reasons that are quoted by Brownie AJA at [17]: "On the 7th March 1998 the Plaintiff, and three of his friends, namely Kyle Lenton, Luke Haiser and Travis Smith attended a BBQ at Cronulla in the afternoon, they then left Cronulla during the evening to go into the city and took a taxi to Oxford Street. They visited various bars where they drank alcohol on their way down to George Street, where they were planning to meet some friends who had been taking part in a concert. They arrived in George Street too early to meet their friends, and accordingly spent a little time in some premises known as Galaxy World. While they were in there, an incident occurred between the Plaintiff's three friends and a group of other young men. While the situation was defused at those premises, by the intervention of a Security Guard with a dog, that did not prevent a larger group of young men from later confronting the Plaintiff and his three friends outside the George Street entrance to the premises known as Hungry Jack's. The Plaintiff himself had left his group at Galaxy World, because, as he put it, he was uneasy. When the trouble developed, he returned to join his friends. While he himself did nothing to cause trouble between the two groups, it is clear that the larger group resented either some physical contact which occurred between the two groups and/or some things which were said. The Plaintiff was not in any way responsible for this situation developing. As I have said, the Plaintiff and his friends proceeded along George Street but were confronted outside Hungry Jack's by a larger group, which may well have included others in addition to those who had been at Galaxy World. The larger group was clearly hostile to the Plaintiff and his friends and I accept that in the larger group two persons produced knives.…I do find that the Plaintiff and his three friends, went into Hungry Jack's where one of them spoke to a Security Guard, a Mr Pamata. The member of Plaintiff's Group who did the speaking, was Mr Lenton and his evidence was that he told the Security Guard: 'There's guys outside with knives, we're in a bit of trouble at the moment, I'm just wondering if you've got, basically I just asked him, can you please ring the police and get some help here, because we're in strife?' Mr Lenton, said that as soon as he told the Security Guard that they were in strife and there were knives the Security Guard was trying to get him out. He just said, 'Get out, you know don't be here. Get out.' The Security Guard than pushed Mr Lenton, and his three companions including the Plaintiff, back outside the premises and closed the door. Outside on the street, the larger group was waiting for the Plaintiff and his friends, a fight between the two groups broke out very quickly, instigated in my judgment by the larger group, in the course of which the Plaintiff was stabbed, with a knife several times and suffered life-threatening injuries."

[114]

95 Handley JA would not accept that any relevant duty of care was owed to plaintiff. He said at [2]: "In general the law does not impose legally enforceable duties on one citizen to help another. It does this in special and limited circumstances where one person has the care of another such as husbands and wives, parents and persons in loco parentis who have the care and custody of infant children, hospitals and patients, prison authorities and prisoners and so on. [3] Outside these special relationships a stranger is not obliged to feed the hungry, give water to the thirsty, look after the sick, visit the prisoners, or rescue those in peril. The moral commandment to love one's neighbour is not enforceable by law. As Lord Atkin said in Donoghue v Stevenson [1932] AC 562 , 580: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question Who is my neighbour? receives a restricted reply.' [4] This case involves the law of real property, the rights of a person in lawful possession of land, and the law relating to trespass to the person. The familiar saying that an Englishman's home is his castle is also true of the home of an Australian and true of land and buildings owned and occupied by corporations. No one has a right of entry on the land of another except with the invitation or permission of the owner or occupier or authority expressly conferred by law. Subject to these exceptions the owner or occupier is legally entitled to refuse entry as he sees fit and to use reasonable force to prevent unauthorised entry. [5] An owner or occupier is also entitled to ask anyone who has been invited or permitted to enter to leave. An entrant who is asked to leave is bound to do so forthwith but must be given the necessary time to do this. An entrant who has been asked to leave cannot be treated as a trespasser unless he ignores the order or fails to comply within a reasonable time. However in those events the owner is entitled to use necessary but reasonable force to eject the trespasser. [6] It seems to me that the existing common law rules regulating the rights and duties of occupiers and lawful entrants cover the field and leave no room for irrevocable licenses in situations of emergency or duties of care enforceable in the tort of negligence."

[115]

96 Hodgson JA was prepared to accept that some duty of care might have arisen but, if it did, it had not been breached: " [10] One is entitled to protect one's land and to eject trespassers, so that to do so, using no more force than reasonably necessary, could be a breach of such a duty only in unusual circumstances, such as high probability of harm to a trespasser if ejected (as, for example, if one found a trespasser inside one's house and forceably put him or her outside, knowing that he or she would be killed or severely injured by poisonous gas then surrounding the house, which would in time disperse). Even then, if there were countervailing considerations, such as harm to property or persons on one's land if one did not eject the trespasser, such a duty would not necessarily be breached merely because, on calm reflection and with the wisdom of hindsight, it can be seen that it would have been better not to eject the person. [11] In my opinion, assuming there is such a duty, this case would be near the borderline. The security guard, acting reasonably, would have taken notice of the statement that the plaintiff and his friends were threatened by a gang with knives, and if he was in any doubt would have confirmed this by simply looking outside. There is no suggestion that the plaintiff and his friends were themselves acting objectionably at the time, so the possibility of harm or real inconvenience to staff and/or customers depended upon the possibility that the group outside would attempt to enter. [12] The security guard's account of the incident given to the police tends to suggest that he did not reasonably address the issues, and this account does not assist the Court in determining what would have been reasonable or unreasonable in the circumstances. The security guard did not give evidence at the hearing. The Court would have to decide for itself whether it is satisfied that a person, acting reasonably, would on the balance of probabilities have permitted the plaintiff and his friends to remain on the premises. [13] In my opinion, such a person would have appreciated that there was a group outside with knives threatening the plaintiff and his friends, and that there was a substantial probability of severe harm to the plaintiff and/or his friends if they were ejected. However, in my opinion such a person would properly have regarded his or her primary responsibility as being owed to staff and customers. In the heat of the moment, it would have been difficult for such a person to make an accurate assessment of the probability of the group outside attempting to enter the premises, of whether and/or how this could be prevented, of what might happen in that event, and of how all the opposing considerations properly balanced out. On calm reflection and with the wisdom of hindsight, I am inclined to think the right response would have been not to eject the plaintiff and his friends; but I am not satisfied that the ordinary reasonable person would have appreciated this in the heat of the moment. Accordingly, subject to one further question, the plaintiff has not established a breach of any duty of care by reason of his being ejected from the respondent's premises."

[126]

107 The Liquor Ordinance 1975 (ACT), section 79 provided that the holder of a liquor license should not sell or supply liquor to a person in respect of whom there are reasonable grounds for believing that the person is intoxicated. This is similar to Liquor Act 1982 section 125(3). A statutory cause of action was alleged in Chordas but was rejected. Their Honours said at 102: "s 79 of the Liquor Ordinance does not confer a private right of action for damages for breach thereof. In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405, Kitto J said that the question whether a statute conferred a private right of action for its breach depended upon 'the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation...' Section 79 appears in an Ordinance which is intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over-indulgence or because of youth or mental ill health are at risk from its abuse: see Commissioners of Police v Cartman [1896] 1 QB 655 at 657; Cundy v Le Cocq (1884) 13 QBD 207 at 209 and Luff v Oakley (1986) 82 FLR 91 at 101. Certainly, a breach of the statute may be used as evidence of a breach of the common law duty of care owed by the hotelkeeper to his patrons: see, for example, Menow v Honsberger (1969) 7 DLR (3d) 494, affirmed on appeal in Jordan House Ltd v Menow (1973) 38 DLR (3d) 105. However, in Abela v Giew (1965) 65 SR (NSW) 485, it was held that a breach of like regulations, those made under the Motor Traffic Act 1909 (NSW) , did not confer any private right of action upon persons injured by reason of a breach thereof. For similar reasons, s 79 does not confer a private right of action for damages resulting from its breach. Section 79 was enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons."

[128]

109 The matter was referred to by Master Harrison (as she then was) in Preston v Star City Pty Ltd [1999] NSWSC 459. Her Honour was dealing with a motion to strike out a statement of claim or parts of it. The plaintiff alleged certain breaches of statutory duty arising under the Casino Control Act 1982. Her Honour said: "[24] The defendant asserted that an analogous provision to s.163 is s.125(3) of the Liquor Act 1982 (NSW) which states 'a person (whether or not he or she is a licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time, in a state of intoxication.' S.125(3) is similar to s.46 of the Liquor Act 1912 (NSW) which provided 'If any licensee permits drunkenness ... to take place in his licensed premises he should be liable ... to a penalty.' [25] The defendant referred to the authorities of Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 at 102 and Soutter v P & O Resorts Pty Ltd & Anor (unreported, Court of Appeal, Queensland 13 March 1998). In Chordas the full Federal Court considered whether s.79 of the Liquor Ordinance conferred a private right of action for damages. The Federal Court of Appeal referred to Sovar and then said that s.79 appeared in an ordinance which was intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by over indulgence or because of youth or mental ill-health are at risk from its abuse. The court referred to Abela v Giew (1965) 65 SR (NSW) 185 where it was held that a breach of like regulations, those made under the Motor Traffic Act 1909 (NSW) , did not confer any private right of action upon persons injured by reason of a breach thereof. The court concluded that for similar reasons s.79 did not confer a private right of action for damages resulting from its breach. S.79 was enacted in the general public interest not for the protection for persons who may be injured by the conduct of intoxicated persons. [26] In Soutter the court interpreted s.78 of the Liquor Act 1912 (Queensland) . The appellant was struck while standing on a dance floor by an energetic dancer. It held that in the present case it may well have been reasonable to treat the statute as intended to protect a particular class of persons, namely the respectable patrons of the licensed premises, from harm or annoyance as may be caused by the presence of disreputable characters, thieves drunkards and so forth. But the court held that it appeared a difficult step to go further to say that one should impute to the legislature an intention to grant a civil cause of action. One of the reasons for the reluctance to do so was that the categories of people who are to be kept off the premises are rather broadly indicated and that it was hardly to be expected a licensee would be able to discern without considerable investigation whether any of the customers on the premises from time to time might fall within one of the categories and it held that the provision in question did not rise to a civil action for its breach. [27] The plaintiff alleges that he became intoxicated to such an extent that he was physically sick in the toilets and fell over in the VIP room. It is my view that it is arguable that the liquor cases can be distinguished in that the liquor legislation is concerned with the consumption of alcohol not problems that can be caused when the consumption of alcohol is combined with gambling in a casino. It can also be argued that s.163 is directed to a particular class of persons namely those gamblers who are intoxicated and not the public at large. The difficulties experienced by an intoxicated gambler have been referred to in policy documents and the second reading speech relating to the Act. [28] As to whether a breach of s.163 gives rise to a private right, it is necessary to consider s.163 in the light of the other provisions of the Act including s.143(d) which specifically refers to one of the objects of the Authority as being to contain and control the potential of the casino to cause harm to the public interest and to individuals and families. S.163 (and s.70) of the Act may be considered in the light of the policy considerations such as the second reading speech and the report that gave rise to those provisions (see s.34 of the Interpretation Act 1987 (NSW )). Also, an intention to create a private right may arise on a balance of considerations and a whole range of circumstances. Without those facts and circumstances and the conduct of the parties being known, I cannot conclude that the plaintiff's argument in relation to s.163 action is untenable. Further, the obligation and responsibilities that casino operators and the Authority to have towards patrons particularly in circumstances where the patrons become intoxicated and continue to gamble have not been the subject of judicial determination. For these reasons, the argument that a breach of s.163 may give rise to a private right should be permitted to go to trial."

Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding

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