DEPARTMENT OF HOUSING AND WORKS -v- SMITH [No 2] [2010] WASCA 25 (19 February 2010)

DEPARTMENT OF HOUSING AND WORKS -v- SMITH [No 2] [2010] WASCA 25 (19 February 2010) - WASCA 2010 case summary — Zoe

[145]

In considering whether a common law duty of care should be held to exist in these cases, it is important to recognise that the provisions of the Liquor Act that have been mentioned have close analogies in other states and territories. Though variously expressed, all states and territories make provision for a licensee of licensed premises to remove from, or prevent the entry to, licensed premises of violent or quarrelsome persons (section 114(2) of the Liquor Control Reform Act 1998 (Vic), and see also s 108(4)(b) of that Act; s 124(1) of the Liquor Licensing Act 1997 (SA); ss 165 and 165A of the Liquor Act 1992 (Qld); s 115 of the Liquor Control Act 1988 (WA); ss 62 and 79A of the Liquor Licensing Act 1990 (Tas); ss 105 and 121 of the Liquor Act (NT); s 143 of the Liquor Act 1975 (ACT)). All state and territory liquor legislation forbids the sale of liquor without a licence. All state and territory liquor legislation provides for the licensing of premises on which liquor may be sold and consumed, and not only regulates the sale and service of liquor in such places, but also (as already noted) directly or indirectly regulates the conduct of persons who are on the premises.

It is against this statutory background that the question of duty of care must be considered, not for the purpose of developing the common law by analogy with statute law (compare Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123; [1999] HCA 67 at [18]-[28]) but to ensure that the imposition of a common law duty of reasonable care of the kind now in question would not run counter to the statutory requirements imposed on licensees in all Australian jurisdictions.

...

Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises (compare Modbury at [117]). Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, 'harm [arise] from violence and other anti-social behaviour' (section 2A of the Liquor Act). And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring - violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol) [21], [22], [25]. (emphasis added)

[184]

Section 5D(2) makes provision for what it describes as 'an exceptional case'. But the Act does not expressly give content to the phrase 'an exceptional case'. All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the 'but for' test of causation is not met. In such a case the court is commanded 'to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party'. But beyond the statement that this is to be done 'in accordance with established principles', the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent 'established principles' countenance departure from the 'but for' test of causation.

At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation (March at CLR 509; ALR 425; Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412-13, 418-19 and 428; [1992] HCA 27; 107 ALR 617 at 618-20, 623-4 and 631; [1992] HCA 27 (Bennett); Chappel at [6] and [62]) It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised (Bennett at CLR 413; ALR 620; Chappel at [66]-[67]) that the 'but for' test was not always a sufficient test of causation. But as s 5D(1) shows, the 'but for' test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).

Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an 'exceptional case' where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles [54] - [56].

[221]

The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ((1982) 56 ALJR 912; 43 ALR 465), or the surrounding area (as in Buckle, where the hole was concealed by grass (Buckle [1936] HCA 65; (1936) 57 CLR 259 at 266). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning' (Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117). In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger (Romeo (1998) 192 CLR 431 at 455 [52]). Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety' (Romeo (1998) 192 CLR 431 at 478 [123]). Each case will, of course, turn on its own facts (Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 253 [198]; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 at 8; Stapleton, 'Duty of Care Factors: a Selection from the Judicial Menus', in Cane and Stapleton (eds), The Law of Obligations (1998) 59, at pp 60-63) [163].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (243 paragraphs)

DEPARTMENT OF HOUSING AND WORKS -v- SMITH [No 2] [2010] WASCA 25 (19 February 2010)

Legislation Cited (11)

Cases Cited (25)