Broughton v Competitive Foods Australia Pty Ltd & Ors [2005] NSWCA 168 | Case summary

8 HODGSON JA: I agree with the order proposed by Brownie AJA. However I would express my reasons a little differently from him. 9 I am prepared to assume that if one undertakes the physical ejection of a person from one's land, one does thereby create a relationship with that person that would once have been called a relationship of proximity, such that there is a duty to exercise reasonable skill and care with a view to not causing harm to that person, and not merely a duty to use no more force than reasonably necessary to eject the person. There is no need in this case to decide finally whether this is so, or if the same would apply to physical denial of entry, verbal requirement to leave, or verbal denial of entry: I am inclined to think that it could not apply to the latter two categories, and could possibly apply to the first category only if direct physical steps were taken at the time to prevent entry. 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. 14 The further question is this: should a person undertaking the duties of a security guard in that location meet a higher standard of ability to assess such a situation rapidly, and to act appropriately, than an ordinary reasonable person? There is no evidence to suggest that, by acting as a security guard, a person is held out to have any particular skills of that kind, or that such skills are reasonably expected of such a person. I do not think there is any basis for imposing a higher standard on a security guard in that position than that of the ordinary reasonable person. 15 The appellant also contended for a breach of duty in failing to contact the police. I agree with Brownie AJA that any duty of care owed by the security guard did not extend to the taking of positive action. 16 The primary judge may have erred in his statement "I am not satisfied that there was any legal duty owed by the Defendants to the Plaintiff". But, whether or not this statement was in error, I am not satisfied that it vitiated the judgment of the primary judge; and in any event, for reasons I have given, I would reach the same conclusion. 17 BROWNIE AJA: This appeal is brought from a judgment of his Honour Judge Black QC, who made the following findings: "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. After the attack on the Plaintiff, an ambulance and the Police arrived. It is against that background that the Plaintiff alleges the First and Second and Third Defendants were guilty of negligence towards him." 18 The first and second defendants, together, were the occupiers of the premises called Hungry Jack's situated on the corner of George and Liverpool Streets Sydney. The third defendant, Mr Dennaoui had contracted with the first and second defendants to provide a static guard at those premises from about 10pm on Friday and Saturday nights until early the following morning (Blue 394). On the night in question Mr Pamata was that guard. The third defendant did not appear at the trial. Although he was named as the third respondent on the appeal, the notice of appeal was not served upon him, and the appellant does not seek to proceed with the appeal, as against him. For brevity and ease of reference, I will refer to the first and second defendants as "the respondents". 19 The learned trial Judge continued: "It is argued on behalf of the Plaintiff that the Defendants owed him a duty of care, in particular, that they owed a duty to respond favourably to the request for assistance and that they owed him a duty not to put him and his friends back outside, into the immediate presence of the hostile larger group, two of whom had knives which could be seen. In my judgment, the Plaintiff and his friends, were lawful visitors to the Defendant's premises. It should be stated that there is no dispute between the First and Second Defendants, that if there is a duty owed to the Plaintiff as occupiers, then they owed that duty between them. In my judgment, the Plaintiff and his friends were entitled to enter the Defendant's premises and seek assistance. That is what they did and that was the purpose of their entering the premises. The premises are substantially made of glass, where they look out onto George St. and Liverpool St. If Mr Pamata had looked, he could have seen the hostile group outside, and also the two knives. I accept the evidence of Mr Lenton that Mr Pamata refused assistance, and told the Plaintiff and his group to leave, pushing them out of the premises and closing the door. The Defendants argue that they did not owe any duty to the Plaintiff in the circumstances of the case. First of all they say, there was no duty to offer them any protection or assistance in law, nor was there any duty to allow them to remain inside the premises until the danger, visible outside, had passed. The Plaintiff argues that there was a duty to provide the assistance requested namely, to contact the Police, and to allow the Plaintiff and his friends to remain in the premises until the danger had passed. The Plaintiff further argues, that in any event there was a breach of the duty of care in forcibly removing the Plaintiff and his friends from the premises into the immediate presence of the armed and hostile larger group. … I am not satisfied that there was any legal duty owed by the Defendants to the Plaintiff, as argued for on behalf of the Plaintiff. I do not consider the Defendants were under any duty to provide assistance as requested, nor to permit the Plaintiff and his friends to remain in their premises once their request had been declined, as I have found it was. In my judgment, given the time scale, and the available information to the Security Guard, there was no way he could know whether the removal of the Plaintiff and his friends would definitely result in one of them being stabbed nor would he have known whether the hostile group would have stayed outside the premises had he permitted the Plaintiff and his group to remain inside. I am not satisfied on the evidence that even if the Police had been contacted it would have resulted in a speedy and effective response such as would have prevented what subsequently happened. Nor do I consider that causing or allowing the Plaintiff and his friends to leave by the door into Liverpool Street would have in any way affected the outcome, because the Plaintiff and his friends were at all times visible inside the Defendants' Premises to those outside." 20 The stabbing occurred shortly after midnight on the morning of 8 March 1998. There were two public entrances to the premises, one in George Street and the other in Liverpool Street. The premises were open for business at the time. There were present several staff members, described as young, and also a number of patrons. One group of four patrons left through the George Street door, as the appellant and his companions were negotiating with Mr Pamata (Blue 154-155). The premises were so arranged that it was easy to see into and out of them, the surrounding area was well lit, and there were several members of the public in the vicinity, as well as the members of the larger group mentioned. At least one member of the public was waiting at a nearby bus stop. 21 The respondents did not dispute that, as the occupiers of the premises, they owed some duty of care to the appellant: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [17], [102] and [138], but submitted that the appellant had been injured outside their premises, in circumstances having nothing to do with the condition of the premises, or with their control of conduct on the premises. They also accepted that they may have owed a duty to take reasonable care in the manner in which they (through Mr Pamata) removed the appellant and his friends from the premises. 22 I assume that this is correct: if A is present on B's property, otherwise than by proprietary right, B is entitled to remove A (using reasonable force): Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29, 78 ALJR 933 at [30]. However, that does not mean that B might not be liable to A in negligence, for example if during the process of being removed A was pushed over a cliff on the boundary of the property, or into the path of a vehicle using a road bordering the property, or into a swiftly flowing river bordering the property. That is, B is obliged, not only to use no more than reasonable force, but also to act reasonably. 23 There is no immediately obvious answer to the difficulty involved in identifying the precise content of the duty of care that the respondents owed to the appellant. If the appellant's group had encountered Mr Parmata outside rather than inside the premises, and he had refused them entry, it seems that no duty of care would have arisen, so that it is the fact of entry onto the premises occupied by the respondents that somehow gave rise to the duty of care. 24 Ordinarily, the occupier of premises is said to owe a duty of care towards entrants on the premises because the fact of occupation carries with it the right to control and knowledge of the state or condition of the premises, and of the activities carried on there: Modbury at [29] and [112] and Cole. 25 Ordinarily, also, one person owes no duty to a second person to take positive steps to prevent harm to the second person, whether from the conduct of a third person, or otherwise, even if there is an obvious danger threatening the second person: Modbury at [20], [111] and [140] and Pyrenees Shire Council v Day (1998) 192 CLR 330 at [101]; and there is an element of irrationality involved in imposing liability on a defendant for not preventing the criminal conduct of others, when society generally has been unable to control that conduct, and the defendant has failed to control that conduct: Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 at [72]. 26 Further, it is difficult to see how it can be said that there was some duty of care that arose from the appellant being in a position of vulnerability, or in the respondents having assumed responsibility for his safety, or from there being some special relationship between the parties, recognised in some earlier case. 27 The appellant, having to overcome these generalities, seeks to do so by submitting that the respondents were guilty of two acts of misfeasance, as distinct from nonfeasance: ejecting the appellant from the premises, and preventing him and his companions from contacting the police for assistance. 28 As to the first of these matters, the proposition comes down to the fact that, Mr Lenton having made the request to Mr Parmata mentioned above, in circumstances where Mr Parmata might have seen the larger group outside, and seen that two members of that group had knives, he ought not to have ejected them there and then, but allowed them to stay until the police arrived and, if necessary, locked the doors so as to keep the larger group outside. 29 Assuming that the respondents owed the appellant a duty to take reasonable care for his safety, and not to eject him there and then, I do not accept that they breached that duty. The duty was to act reasonably, and a reasonable consideration of the position required the respondents to weigh up not only the duty they owed to the appellant, but also the duties that they owed to their employees working in the premises, and to the patrons who were then present, or coming into or out of the premises; and these duties might have suggested competing answers, for example if the larger group had sought to follow the smaller group inside. 30 Mr Parmata acted spontaneously, in difficult circumstances. He had no opportunity to consider the position carefully, or take instructions or advice from his superior, or from the respondents, or from some lawyer, as to how these different duties might be reconciled, and, indeed, many if not most lawyers, asked to give advice on the question, would feel a need to give careful consideration to the problem. If he had considered how he should weigh up the various competing duties, a decision to give priority to the duties owed to the respondents' employees, or their patrons, is not one that could immediately be labelled as negligent. 31 Further, the respondents had no lawful authority to keep locked up, or imprisoned, any employee or patron, without that person's consent, so that a decision to lock the doors, and keep them locked, was not one to be lightly made; and if the doors had been locked, and a patron asked to be allowed to leave, difficulties might have arisen in balancing that request against the contemplated duty owed to the appellant to keep the doors locked, and the two groups separated. 32 In addition, there was no finding by the learned trial judge as to whether, how quickly, or how readily Mr Parmata might have locked the doors, and the evidence about this is so sparse as to scarcely exist. It is not known why it was that the respondents saw fit to employ a static security guard, or whether there had been any prior incident of a similar nature, or whether Mr Parmata or any other guard had ever had cause to lock, or to consider locking the doors (the business conducted on the premises apparently operated all night), nor how quickly and readily he might have locked both the George Street door and the Liverpool Street door. These questions were not ventilated at trial. 33 The suggested breach of duty in "preventing" the appellant from obtaining police assistance are supported by reference to two American cases: Soldano v O'Daniels (1983) 190 Cal Rptr 310 and Griffith v The Southland Corporation (1992) A.2d 598. 34 In Soldano there was a fracas in a saloon. A patron left the saloon and went into a nearby eating establishment where he asked a bartender employee to either call the police, or to allow the patron to do so; and the bartender refused. One of those involved in the fracas was killed, and his son sued the proprietor of the eating establishment in negligence. The reported decision relates to an appeal from a judgment, giving summary judgment for the defendant. 35 Andreen J, delivering the reason for judgment of the court, referred to the common law distinction between nonfeasance and malfeasance, saying that the defendant had no obligation at common law to act, in the absence of some special relationship between the defendant and, in that case, the deceased, notwithstanding that there was moral obligation to act. He referred to the Californian Penal Code, which in certain circumstances created an affirmative duty to act, that is to clear a telephone line to enable someone to call a police department, and then to the Warren-911-Emergency Assistance Act, in which the legislature provided that any call to the emergency number 911 was to be made free of charge. 36 His Honour then cited an earlier decision identifying factors to be considered in determining whether a duty of care is owed to others, including: "…the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with the resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." 37 His Honour continued by emphasising that all that the bartender had been asked to do was not to impede the saloon patron who had chosen to summon aid, and ultimately held that the action should be sent to trial, rather than disposed of summarily. In the course of doing that his Honour noted that Californian courts, and courts in the USA generally had an obligation to continually develop the common law and to change it to meet changing conditions, describing the exercise of this power as an imperative function of the courts, and the strength of the common law. 38 Griffith also involved a successful appeal from a decision giving summary judgment in favour of a defendant. The plaintiff in this case was a police officer who was a patron of the defendant's store. A fight developed between patrons, the plaintiff attempted to arrest one of those involved in the fight, the fight became more general, and the plaintiff's son asked a clerk employed by the defendant to telephone a police emergency number, but the clerk refused. Once again, the question was whether there was a duty of care owed to the plaintiff to make the telephone call, or permit it to be made, and nothing more. 39 Alpert J, delivering the judgment of a majority of the court, followed the decision in Soldano. He referred to Maryland legislation concerning the 911 emergency number, said that the court should not neglect an important opportunity to cultivate and improve Maryland law, and emphasised that all that the clerk had been asked to do was to make the telephone call requested. 40 The factors identified in these two cases in determining whether there was a breach of a duty of care are not those described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48; the common law of Australia does not permit courts to act in the robust way mentioned in these two cases, without regard to binding precedent; and there is no Australian or New South Wales legislation equivalent to the Californian and Maryland legislation mentioned in Soldano and in Griffith. 41 I do not accept that what the respondents did, through Mr Parmata, so far as concerns not making the telephone call to the police, or, contacting them by "walky-talky" (there is no finding that this form of contact was feasible, and the Court was not taken to any evidence suggesting that it was feasible), amounted to "preventing" the appellant from contacting the police, or in more formal language, misfeasance as distinct from nonfeasance. All that happened was that Mr Parmata ejected the appellant and his companions, and some unidentified person telephoned the police. It is not known when this happened, and it might not have happened until after the appellant had been stabbed. 42 I consider that it has not been shown that the respondents breached their duty of care to the appellant, so that it is not necessary to consider the questions debated about causation. 43 The respondent submitted that, if the appeal was to be allowed, the Court should itself assess the appellant's damages, so as to completely and finally determine all matters in controversy between the parties: s 63 Supreme Court Act 1970. The trial judge did not assess damages, but the Court has power to do so: s 75A (6)(c). In reply, the appellant submitted that, if the appeal was to be allowed, there should be a new trial, so that the judge hearing the new trial could see and hear the appellant in order to make a judgment as to the effects of the injury upon his happiness, life, working career and employment prospects. As against this, the respondent pointed out that there was virtually nothing in contest at the earlier trial, concerning the assessment of damages. 44 The appellant gave short evidence-in-chief, on the question of damages, and the cross-examination of him on this subject matter was ever shorter. Messrs Lenton and Haiser gave some evidence about their perception of the effect of the stabbing upon the appellant, and they were not cross-examined on this topic. There were tendered in the appellant's case various hospital records, and the reports of two doctors, neither of whom was required for cross-examination. Counsel for the appellant submitted at trial that there was no medical issue (Black 153K), and the claim made was for out-of-pocket expenses, the amount of which was agreed upon, together with a sum to be assessed for damages for pain and suffering and loss of amenities of life. 45 In the circumstances and having regard to the possibility of an appeal to the High Court I consider that the Court can and should proceed to assess damages, and that it is possible to do this in a relatively very short form. The respondents did not submit that the evidence of the appellant, or any of the evidence given on his behalf should be discounted, and, as already mentioned, there was only very limited cross-examination of the appellant. 46 The appellant received ten separate stab wounds, to the back, flank, shoulder and right arm, together with a small laceration to his lip, that laceration perhaps being the result of a punch. A lung was pierced, and a kidney was significantly lacerated; there was extravasation of urine; a stent was inserted; and for some time there was significant pain and general discomfort. The appellant was lucky to have survived. 47 However, he was discharged from hospital after about sixteen days, was absent from a college at which he was studying for a Diploma of Graphic Art and Multi-Media, for about two months, and seems to have recovered gradually over a period of perhaps a year after the incident. It seems that he made a good physical recovery. There are ten residual scars, depicted in coloured photographs in evidence, which are to some extent itchy and sensitive. He is a little sensitive about them. He spoke of playing touch football, Oz football or Oz tag, but not resuming playing rugby league. There was no medical evidence saying that he could not or should not do so, but his evidence on the subject was unchallenged. 48 He passed his examinations at the end of the year 1998, found employment, and has since been promoted. He is employed as an art director by an advertising agent. He spoke of difficulties he had in the period soon after the stabbing, but did not give evidence of continuing physical disabilities after a period of, perhaps, a year. There is no medical evidence of any continuing physical disabilities. He lost a lot of weight initially, but regained it. 49 He spoke of continuing psychological difficulties: he feels uncomfortable at going back to the area of Sydney near the scene of the stabbing, and he avoids that area; he feels uneasy going out at night, but does so in the suburban area near his home. He has difficulty sleeping, as he thinks about the stabbing, and occasionally this leaves him tired and inefficient at work the next day. He avoids watching certain movies and television programs. He had some counselling, but did not persist with it. 50 Mr Lenton described the appellant as being a lot more emotional than he was before the incident, as not going out socially as often as he did before, and generally (but rather vaguely) of the appellant being a different person. Mr Haiser's evidence was generally similar, although he also spoke of the appellant no longer going near the scene of the stabbing. 51 Dr Brenner described the appellant's wounds and treatment in detail. Dr Roberts, a psychiatrist retained for medico legal purposes, said that the appellant did not have any post traumatic stress disorder, but had a mild to moderate level of anxiety producing feelings of discomfort in certain circumstances, but no significant ill effects. He described the appellant as having a reactive neurosis, and an adjustment disorder with anxiety and depression. 52 I would assess the appellant's general damages at $40,000, adding interest of $5,736.00 ($40,000 x 2% per annum x 7 years and 2 months, from the injury until judgment), as well as the agreed out-of-pocket expenses, $8,789.00, a total of $54,525.00. 53 I propose that the appeal be dismissed with costs. ***********************

Broughton v Competitive Foods Australia Pty Ltd & Ors

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