Conti v Wollongong City Council

Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447 CASES CITED: English v Rogers [2005] NSWCA 327; (2005) Aust Torts Reports 81-800 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Spedding v Nobles; Spedding v McNally [2007] NSWCA 29

PARTIES: Milvia Maree Conti - Appellant Wollongong City Council - Respondent

COUNSEL: P W Bates - Appellant J B Turnbull - Respondent

SOLICITORS: Autore & Associates - Appellant McCabe Terrill - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40300/07 DC 5213/06

GILES JA TOBIAS JA McCOLL JA 8 November 2007

Milvia Maree Conti v Wollongong City Council Judgment

1 McCOLL JA: Milvia Maree Conti was injured on 15 June 2001, when she was punched in the face by a girl at the Beaton Park Leisure Centre, a complex which was owned and operated by Wollongong City Council. She brought proceedings against the Council alleging her injuries arose from its negligence and breach of contract. Her Honour Judge Truss dismissed the proceedings. 2 This is an application for leave to appeal and, if leave is granted, the hearing of the appeal itself. As I am of the view that leave to appeal should be granted, I shall refer to the parties as the appellant and respondent respectively.

Statement of the case 3 The primary judge found the appellant was injured in the following circumstances. 4 The appellant was a member of the Leisure Centre. On 15 June 2001, she participated in a spin class at the Centre. When the class finished, she went to the change room. When she entered, all four shower cubicles were being used by people who were screaming and using foul language. There was a two minute time limit on use of the showers. The appellant waited about five minutes, during which time the conduct continued. She then sought assistance from Centre staff. The first staff member who responded, Ms Parrish, asked the occupants of the showers to get out of the showers. Although their screaming stopped, it resumed shortly after and they did not leave the showers. The staff member left the change room. It is not clear whether she heard the screaming resume. The appellant then sought assistance from another staff member, Ms Jurmann, who accompanied the appellant back to the change room and asked the occupants of the showers to leave the showers, get dressed and leave the Centre. At that stage the occupants emerged. All were minors. The appellant described them as a 16 year-old girl, another girl about 11 years old and two boys about 5 years old. The 16 year old girl was verbally abusive towards the appellant and Ms Jurmann. Ms Jurmann waited about five minutes, during which time it appears the occupants made no attempt to leave. Then, having asked them again to leave, Ms Jurmann said she would call the police to have them removed.

5 Ms Jurmann left the room to call the police. She asked a Ms Lake to call the police and another staff member, Ms Stevens, to go to the change room.

6 The appellant remained in the change room. She went into one of the shower cubicles, locked the door and started to remove her shoes. At that stage a towel was thrown over the wall of the cubicle followed by a half full bottle of mineral water which struck the appellant on the head. She gathered her belongings and went to leave the change room. As she passed the girls, the 16 year old punched her in the left eye. The appellant went to the reception area and complained. The minors were escorted from the centre and detained for about 15 minutes but left when the police had not arrived after 15 or so minutes. 7 The appellant's case at trial was that the respondent failed adequately to handle the "escalating state of affairs in the change room": primary judgment (at [18]). She argued that the respondent breached its duty of care in allowing both the minors and her to remain in the change room without any member of staff present when the situation was escalating. She argued the respondent ought either to have had someone remain in the change room, or directed her to leave the change room until the minors had been removed by the police or had left the premises. 8 The primary judge summarised the appellant's case on breach as follows: "(a) she was a contractual entrant. (b) the minors had already been asked by the defendant's staff to leave the centre earlier that day due to non-payment for the spa but this had not been followed up and they had not left the premises. (c) the minors were disobeying rules as to [the] length of showers and were verbally abusive not only to the plaintiff but also to Ms Parrish and Ms Jurmann. (d) the minors ignored and refused specific requests by Ms Parrish and later Ms Jurmann to cease showering and to leave the change room and the centre. (e) the plaintiff says that by this point, by virtue of their disobedience and anti-social behaviour the defendant was on notice that they were troublemakers . (f) one of the minors (apparently the oldest girl, who appears to have been about 16 years old), was making physically aggressive gestures to the plaintiff and to Ms Jurmann prior to Ms Jurmann leaving the change room as well as screaming and insisting that she was not stupid and could read the signs. (g) whilst the defendant's staff, on their evidence, had been trained to defuse such situations, the plaintiff says that in fact they allowed the situation to escalate with Ms Jurmann informing the minors that she was going to call the police, then departing to do so. It was submitted that it was reasonably foreseeable that the situation would escalate and in that regard the plaintiff relies upon the evidence of Mr Jennings, the expert. (h) when Ms Jurmann returned to the office she asked one of the other staff members to proceed to the change room to keep an eye on the situation but before Ms Stevens got there the assault had occurred." (emphasis in original) 9 The appellant also relied upon a report from Mr Richard Jennings, a risk management expert. The respondent objected to that report in part, at least, because his opinion was based on unproven factual premises, in particular that a staff member had been present in the change room when one of the girls pushed the respondent in the chest but had not intervened. The primary judge does not appear to have given Mr Jenning's opinion any great weight, not least, no doubt because of the disparity between the facts proved and his factual assumptions. However, to the extent that Mr Jennings expressed the view that the respondent ought to have called the police earlier, her Honour held (at [30]) that the time the police was called was not causative. The appellant did not seek to urge Mr Jennings' opinion upon this Court and it can be set to one side. 10 The primary judge noted (at [32]) that it was after she collided with one of the minors that the appellant opened the door to the change room and told them to get out. It was after this that she was punched. The primary judge concluded that the appellant had ample opportunity before the assault to leave the change room and chose not to do so. Her Honour inferred that the appellant did not consider that the situation was escalating to the point where she was in imminent danger. 11 The primary judge accepted Ms Jurmann's evidence that she did not feel threatened in the change room and that she called the police because the minors were not moving on, not because she feared violence. 12 Her Honour also concluded (at [39]), on the basis of what the appellant told the respondent's employees about the situation in the change room, the fact that the appellant said she did not feel under threat when Ms Jurmann left and the fact that she then started to have a shower, that the issues so far as the appellant was concerned were the "loud screaming and that she was being kept waiting for a shower". 13 Ms Jurmann and Mr Bond, the Centre manager, gave evidence, which the primary judge accepted (at [42]), that before June 2001 they were unaware of any violent incidents occurring at the Centre. 14 Ms Jurmann had been trained in relation to dealing with difficult customers and how to defuse situations of conflict. She gave evidence that while she was asking the minors to leave the appellant was standing behind her making comments to the effect of "look you've already been told about this", that "her tone wasn't that friendly" and that she seemed annoyed. Before the primary judge counsel for the appellant argued (see [44]) that Ms Jurmann should have observed the appellant becoming involved in a "powder keg situation". 15 The primary judge summarised the appellant's case in this respect as follows: "45. The plaintiff says that at this point Ms Jurmann departed from her training but (sic) not only failing to defuse the situation but by inflaming it by stating that she would call the police. The plaintiff relied upon her evidence: Q. I want to suggest to you that it was becoming obvious to you at that stage that the situation was escalating towards some form of physical violence. A. No, I don't believe that, no. Q. You say you don't remember, I want you to assume, let's assume the situation is as I've said to you, that in fact the girl was saying words to the effect 'I'm not stupid, I'm not fucking stupid' and that she was moving in an aggressive way towards you and Milvia Conti pointing her finger, would you agree that that is a situation that has the potential to go to violence? A. I can't predict what - what they were going to do. It was annoying and a nuisance but I couldn't predict that that was going to be the case. 46. The plaintiff places much reliance upon Ms Jurmann's concession that she could not predict that there was going to be violence. In cross examination she was pressed on a number of occasions about whether she perceived violence and on each occasion she was adamant that she did not." 16 The appellant relied on Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, which concerned a patron of a hotel injured by another patron in a fight, and English v Rogers [2005] NSWCA 327; (2005) Aust Torts Reports ¶81-800, which concerned a cleaner injured at hotel premises by a masked gunman. The primary judge distinguished those cases (at [47] - [48]) on the basis that in each there had been prior similar incidents. She concluded there was no evidence of prior violent incidents at the Centre.

17 Her Honour also distinguished Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447 on which the appellant relied as turning on the particular facts of a plaintiff injured in a widespread brawl at a club by an aggressive patron who should have been evicted earlier in the evening. 18 Her Honour concluded that the respondent had not breached its duty of care to the appellant. She held the circumstances of the case were not such as to take it outside Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 as applied in subsequent authority. She also held there was no foreseeable harm from the criminal conduct of a third party. 19 The primary judge also dismissed the appellant's case to the extent it was based in contract. The appellant does not challenge that aspect of the decision and it is unnecessary to consider it further. 20 After judgment was delivered the respondent sought to recover costs on a solicitor client basis relying on a letter its solicitors wrote to the appellant's solicitors on 19 July 2004. That letter said the matter would be fully defended, but that if the appellant discontinued the proceedings the respondent would be prepared to meet its costs to date. The offer remained open for 28 days. The primary judge concluded that the respondent was entitled to its costs on the ordinary basis up to 16 September 2005 when it filed its defence and thereafter on a solicitor client basis. The appellant challenges this costs ruling.

Grounds of appeal 21 The appellant relies on the following grounds of appeal: "1. The primary judge erred in holding that the circumstances of the instant case did not fall within one of the qualifications or exceptions to the general principle in Modbury Triangle Shopping Centre P/L v Anzil.

The primary judge erred in holding that the circumstances of the instant case did not enliven the principle in Club Italia (Geelong) Inc v Ritchie.

The primary judge erred in placing too much emphasis on the absence of prior violent incidents in reaching her finding of absence of foreseeable risk of harm, and failed to give proper weight to concessions made in evidence by one of the opponent's witnesses, Ms Jurmann.

The primary judge erred in applying a subjective test rather than an objective test of reasonable foreseeability of harm and breach of duty in the judgment. The primary judge erred in (a) giving too much weight both to Ms Jurmann's subjective denial that she did not perceive the appellant was at risk of physical injury, … and (b) not enough weight to the objective fact that Ms Jurmann did not follow her own training, designed to ensure that heated verbal altercation does not escalate to physical injury to the appellant.

The primary judge in her fact finding on the issues of no foreseeability and no breach of duty gave too much emphasis to the fact that no actual physical violence had been threatened and had not occurred before Kristine Jurmann left the change room. The primary judge did not give sufficient emphasis to the duty on the Council to control the aggressive minors. The opponent breached its duty by not asking the appellant to leave the change room rather than leave her alone with the aggressive minors. The primary judge found, correctly, that the appellant lacked insight into the fact that the appellant's own demeanour, tone and language was inflaming the situation and contributing to the escalation, as summarised in the judgment at [21], [23(f)], [43]-[44]. In light of that finding the primary judge erred in giving insufficient emphasis on the issues of foreseeability and breach of duty to Ms Jurmann's training which Ms Jurmann) did not follow, namely, that situations of the kind in which the appellant found herself should have been defused by the defendant (by Ms Jurmann), to prevent escalation, by calm talking and separating the appellant and the aggressive minors.

The primary judge erred in the proper exercise of her discretion (in oral reasons following costs argument after delivery of main judgement on 18.4.07) in ordering the appellant to pay the opponent's costs on a solicitor client basis from 16.9.05 onwards."

22 The gist of the argument advanced by Mr Bates, who appeared for the appellant on appeal and at trial, was that having regard to her training in defusing conflict situations, Ms Jurmann ought to have recognised that the situation between the appellant and the minors was escalating and had the potential to escalate into violence. In those circumstances he submitted, Ms Jurmann ought to have asked the appellant to leave the change room with her when she departed to get the police. 23 He drew attention, in particular, to the appellant's evidence that when the minors left the showers in Ms Jurmann's presence, the elder girl was pointing her finger at the appellant saying "I'm not stupid" and "went off like this crazy girl". He also relied on the evidence that the appellant herself was annoyed to Ms Jurmann's knowledge and had been making remarks to the minors. He contended that based on her training, Ms Jurmann was in a superior position to the appellant and ought to have recognised the potential for the situation to escalate into violence if not defused by separating the participants. He argued that Ms Jurmann exacerbated the situation by departing with the announcement that she was going to call the police. He argued that the primary judge failed to take these matters into account. 24 Mr Bates relied in part on Ms Jurmann's evidence : (WB 252-253) "Q. You say you don't remember, I want you to assume, let's assume the situation is as I've said to you, that in fact the girl was saying words to the effect 'I'm not stupid, I'm not fucking stupid' and that she was moving in an aggressive way towards you and Milvia Conti pointing her finger, would you agree that that is a situation that has the potential to go to violence? A. I can't predict what - what they were going to do. It was annoying and a nuisance but I couldn't predict that that was going to be the case. Q. Based on your training and defusing, based on what you said about customer relations and so forth, what do you think you should have done in that situation if what I've said to you was the case to try and manage that situation so it didn't develop? A. I don't know."

Mr Bates submitted that this evidence demonstrated that Ms Jurmann was uncertain as to whether there was a risk and therefore recognised the possibility of same. However, reading Ms Jurmann's evidence as a whole, it is in my view plain that Ms Jurmann was of the view there was no risk when she left the change room. 25 Mr Bates further submitted that Ms Jurmann's evidence that she did not perceive any risk or danger in leaving the appellant in the change room in the circumstances was not determinative of the issue of foreseeability which had to be assessed objectively. On the latter basis, and having regard to her training concerning defusing conflict situations, he contended that it was foreseeable that the situation would escalate into the violence which in fact occurred and that with that foresight, the reasonable response was to ensure the appellant was removed from the position of danger in the change room. 26 Mr Turnbull, who appeared for the respondent on appeal and at trial, submitted that the appellant told the respondent, and Ms Jurmann observed, that the minors were in the showers for too long and were being noisy and that this did not put the respondent on notice that an assault may occur.

Consideration 27 In Modbury, the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ, Kirby J dissenting) held that a landowner's duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to an injured employee resulting from the criminal behaviour of third parties on that land. However, as Basten JA pointed out in Spedding (at [49] - [50]), there is authority, both in this Court and in the Full Court of the Federal Court, which supports the existence of a duty of care owed by licensees of hotels to patrons in relation to the risks of violent behaviour of other patrons. Those decisions include Club Italia (Geelong) Inc v Ritchie on which the appellant relies. Those cases which have upheld the existence of a duty of care owed by a licensee to patrons, as Basten JA also observed, turn on the element of control. 28 The appellant relied upon the respondent having that element of control over its premises. It might be noted, however, that while her Honour held (at [21]) that the respondent as occupier was in a position to regulate the behaviour of patrons, she also held (at [33]) that its ability to control entry to the premises did not extend to physically removing patrons. I would infer that that finding related to removing patrons from the premises. The respondent did not challenge the proposition that Ms Jurmann might have asked the appellant to leave the change room and that she would have complied with that request. To that extent, therefore, the respondent was in a position to remove appellant from a situation of danger had it perceived such a situation to exist. 29 While the question of foreseeability was a matter for objective assessment, the subjective views of the situation held by both the appellant and Ms Jurmann were not irrelevant. As Basten JA said in Spedding: "36 The question of foreseeability was a matter for objective assessment by the trial judge; it did not depend on whether the defendant or his agent in fact foresaw the risk. The conclusion did, however, depend on his Honour's finding as to what [the defendant's employee] had been told and the challenge was thus in part derivative. Further, the assessments of risk which appear to have been made by people present at relevant times may well provide some evidence as to the proper inference." 30 In my view, the conduct of the appellant and Ms Jurmann was powerful evidence, which could be taken into account in an objective assessment, to conclude that there was no risk posed by the situation in the change room at the time Ms Jurmann departed to call the police. 31 The situation was that the four minors were behaving in a juvenile and irresponsible manner. They had not engaged in any violent behaviour at the Centre prior to the incident in which the appellant was involved. Apart from pointing her finger towards the appellant and Ms Jurmann, and asserting she was not "stupid", the principal protagonist (for want of a better word) had not exhibited untoward physical behaviour. There was no suggestion she was physically superior to the appellant. There was no suggestion that she would behave violently towards the appellant. The suggestion that the 11 or 5 year olds posed any risk only has to be stated to be dismissed as absurd. 32 In my view, the primary judge did not err in concluding that there was no foreseeable risk of harm calling for the separation of the participants. 33 I would dismiss that aspect of the appeal. 34 The primary judge's conclusion on costs cannot, however, stand. It is vitiated by a fundamental error. At the time her Honour appears to have concluded the appellant acted unreasonably in not acceding to the respondent's July 2004 walk-away offer, that offer was no longer open for acceptance. Accordingly, the appeal should succeed to the extent of setting aside that aspect of her Honour's costs order. 35 As the appellant has had partial success on the appeal, she should bear only 90 per cent of the costs of appeal. 36 I propose the following orders:

1. Grant leave to appeal. 2. Notice of Appeal to be filed within seven days. 3. Appeal allowed in part. 4. Set aside the order of her Honour Judge Truss made on 18 April 2007 that the appellant pay the respondent's costs of the trial from 16 September 2005 on a solicitor client basis. 5. In lieu, order the appellant to pay the respondent's costs of the trial on the ordinary basis. 6. Appellant to pay 90 per cent of the costs of appeal. 37 GILES JA: I agree with Justice McColl's reasons and with the orders her Honour proposes. 38 TOBIAS JA: I also agree. 39 GILES JA: They will therefore be the orders of the Court.

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