50 Mr Jennings had earlier indicated that he had accepted the data supplied by the plaintiff's solicitor and that he had not interviewed any witnesses other than a brief telephone discussion with the plaintiff to clarify aspects of the matter. No witness gave evidence referable to the drums except for the plaintiff, who said that he observed quite a number of 44-gallon drums on the other side of the laneway away from the hotel fence. He did not know what was in them (Black 14). This evidence did not establish the proposition stated in the previous paragraph.
51 In July 2002 Mr Jennings took photographs of the rear laneway showing then empty 44-gallon drums standing on the footpath on the opposite side of the laneway to the gates (Blue 36). Each drum was 86mm in height (Black 253).
52 The employer's expert, Mr Gale, provided a report that contained photographs taken in about June 2004. They showed a couple of 44-gallon drums apparently resting on a stand opposite the gate to the yard on the far side of the laneway (Blue 157).
53 The evidence disclosed that these drums were used by the Hotel to store broken up bottles while awaiting removal. There is no evidence as to whether the drums were full or empty on the night in question. If they were full, then they would have been very heavy. But whether full or empty, there was no evidence that they were found adjacent to the wall on the night of the robbery. It follows that, if they were used by the offender, he must have had an associate who rolled the drums back to their usual position after entry was gained. This is unlikely. Such a hypothetical associate could as well as brought a ladder or driven a car on which the offender could have stood to climb onto the fence.
54 In my view, this particular method of entry was not established on the probabilities. For what it is worth, I strongly doubt that this method of rubbish removal betokened negligence in any event.
55 I next address the finding as to the adequacy of the rear fencing.
56 The trial judge conducted a view on 30 June 2004. He made a detailed record (Black 152-155). His observations about the yard were as follows:
Together we visited the yard out the back. It is enclosed with two wire meshed gates. There are four strands of barbed wire above the wire mesh gates and three strands of barbed wire above the corrugated fence that runs along the eastern side to separate this work area from the private lane. It seemed the corrugated fence was about 6 foot tall, maybe a few inches less, and above that then was three strands of barbed wire.
There was, it seemed to me, about 10 inches or a foot between the top of the fence and lower strand of the barbed wire. Most of the wire was very old and rusty, though part of it had been renewed.
There were 44 gallon drums, both in the work area at the back and in the lane, though the ones in the lane were very rusty. There were signs on the north brick wall that surrounded the work area. There was also a camera on the wall, and above that camera was flood lighting. The signs on that north wall and on the eastern wall running along the lane advised that the yard was surveyed by video camera.
There was a vacant area on the other side of the laneway which was in very bad repair, a very scrappy area from which an observer would be able to observe the door leading into the passageway that goes straight into the premises.
It seemed to me that in the south east corner somebody would be able to scale the fence where the corrugated iron fence met a colour bond fence, which was about 7 feet high.
Just inside the property on the other side of the fence there was a small window. Today it was opened and I have seen photographs with the window open also, but in any event, whether opened or closed, it seems to me that someone would be able to scale the colour bond fence, and step over the barbed wire on to the window ledge, or even on to the wooden beam that forms a framework for the fence. It would not be impossible to gain entrance in that area, it seemed to me.
I also noted that anyone who wished to gain entrance would be able to place his foot on top of the corrugated fence where the gates appear, straddle the fence, and either put his foot on the wooden beam which is about 4 inches from the tope of the corrugated iron fence, or down on to a skip bin inside the property where I saw today one large skip bin, and I understand there is room there for a second one, and I note in fact the plaintiff has drawn in two skip bins in exhibit C.
The working area was extremely cluttered. There were numerous kegs, there were 44 gallon drums - many of those. There was an old fridge, numerous milk crates, a television disc, building equipment, and stacked bricks, as well as access to the cellar. I noted strip lighting, there were two lots of strip lighting over against the wall on the western side, and fluorescent lighting below the awning. There was a number of large air-conditioning units, all working.
In the corner there was a washing room just to the left as one entered the doorway to go into the premises. The door was not locked today, the lock was rusty, and did not appear as if it had been used. There were no handles on the door. It seemed to me that it would be a place where someone would be able to secret himself.
We entered together. The corridor that runs from the back work area is into the main bar which is to the left of the room marked 2 on exhibit C. There was now a camera focused into the manager's office area. There is no access to that corridor except from behind the bar, if one entered the premises through the main doors, so that access to that corridor is restricted, it would seem, to employees and managers rather than to clients, and it would be very obvious if somebody came in behind the bar and walked down into that area.
57 As indicated, the judge ultimately concluded on the basis of the view that the fences "were not impenetrable, but could be overcome only with difficulty". Earlier in his reasons for judgment his Honour referred to his observations of the fence, stating (Red 37-8):
I observe also that, at one corner of the yard as it joined the building, there was an area which would allow someone, with some difficulty, to climb up against the fence, step over the barbed wire onto a window sill, and jump down into the interior of the rearyard.
58 The employer was critical of these findings, at least in so far as they suggested negligence in not having a more impenetrable fence. It was pointed out that the height of the top of the corrugated iron fence was 1.4m above the ground and that the top strand of barbed wire was 2.44m above the ground (Black 253).
59 I am unpersuaded that the judge erred in his assessment of the fence and his conclusion that a determined intruder could get over it (especially at one corner), with or without the assistance of an associate. His Honour was in a markedly superior position to this Court, not that we should shrink from our duty of appellate review if persuaded of error.
60 Whether there was negligence in not having a more impenetrable fence is more debatable. This was, after all, a working part of a hotel, not a prison complex or a national art gallery.
61 At the end of the day, it is not feasible to isolate the fence issue. Rather, it should be seen as the backdrop to the critical question that I identify in the next paragraph. This is because an even higher fence would have proved no barrier to a determined and resourceful criminal, especially one who had a particular grudge against the Hotel, as the plaintiff's assailant apparently did (Black 22, 96). I shall therefore proceed on the basis that the fence was capable of being scaled, albeit "with difficulty", but that the height and structure of the fence were not sufficient in themselves to ground a finding of negligence.
62 Assuming absence of negligence in not making the yard more impenetrable, the fact remained that a determined assailant could get into it and hide. To my mind, the critical issue relates to the reasonableness of the lack of measures to protect the plaintiff in these circumstances, when he moved into this poorly lit yard as one of his appointed tasks, without any instruction from his employer or the Hotel about the need for special precautions.
63 The hotel was in an isolated part of the suburb. The takings were an attraction to robbers, as the Hotel acknowledged through its security measures. The plaintiff's vulnerability was recognised by each of the security experts (Blue 26, Black 315).
64 The yard was poorly lit (Black 19-20) and relatively cluttered. It offered easy refuge for a hiding intruder who had somehow or other scaled the perimeter fence. Such an intruder would have been able to observe the cleaning processes through the gate (which was not solid) and learnt that the cleaner came into the yard once or twice every night.
65 Neither the employer nor the Hotel pressed the submission that there was no foreseeable risk of robbery, even with the upgraded security measures installed after 1998. To have maintained this position would have been hopeless, in my opinion.
66 The employer's primary submission was that security was the Hotel's responsibility. It was argued that the employer was entitled to assume that the Hotel had a reasonably safe system in operation. The Hotel alone was aware of the earlier incidents involving the hold-up in the bottle shop in 1997 and a further episode involving an intruder who fell through the roofing tiles.
67 Unlike the situation in Chomentowski, the employer would not have foreseen any likelihood of a cleaner being held up on the basis of having access to cash at the premises. The possibility that the cleaner would be held hostage in the manner that occurred was fairly remote, a proposition that drew support from Mr Gale's evidence. He acknowledged the known risk that criminals intent on entering a business might secrete themselves overnight, adding that the taking of a hostage for a long period of time was not something he had come across or something that he would have "considered probable in terms of advising security" (Black 315). This evidence raised in my mind some questioning of the trial judge's conclusion as to negligence, but at the end of the day I am not persuaded to overturn it.
68 The Zurich Loss Control Bulletin pointed to the risk to staff required to go outside the building at night. As regards "resident managers after hours", it asked:
Is it necessary for manager to go outside building after closing up at night, eg to get to residence?
If so, is area well lit (is there anywhere robbers can conceal themselves)?
69 Neither the Hotel nor the employer seems to have realised that a cleaner could also be at risk at the hands of a robber intent on gaining entry. I acknowledge that a cleaner is a less likely target than a manager. After all, an intruder would not reasonably anticipate that a cleaner would have access to a safe. This said, I am unpersuaded that the trial judge erred in concluding on the facts that there was negligence in permitting the cleaner to go unaccompanied into a cluttered, poorly lit yard that offered encouragement to an intruder intent upon gaining entry to the hotel premises.
70 In Czatyrko, the High Court recently observed, at [12] (citations omitted):
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.
See also Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at 439[34]; Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222.
71 In Kondis v State Transport Authority (1984) 154 CLR 672 Mason J said (at 687-8):
The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.
72 Naturally, there are clear points of distinction between the plaintiff's situation and that of the manager in Chomentowski. But the plaintiff was clearly vulnerable to a degree that distinguished him from employees of the Hotel who worked there by day.
73 The employer's duty was not absolute. Since, however there was in my view a real risk of injury to the plaintiff in the performance of his workplace task, the employer was required to "take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by provision of adequate safeguards" (Czatyrko at [12]). This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue.
74 Simple measures were available that would have lessened the risk that came home. They would not have unduly impeded the accomplishment of the plaintiff's cleaning tasks. The rubbish could have been left just inside the locked portion of the premises and only moved outside during daylight hours (using Hotel staff). Alternatively, the plaintiff could have been instructed to take the rubbish out in the company of the manager or perhaps even in the company of his wife. If such instruction had been coupled with better lighting and a warning to be aware of the possibility of a hidden intruder, then the duty of reasonable care may very well have been discharged.
75 It is no answer for the employer to say that he was unaware of the 1997 robbery at the hotel. He must have been aware that there was some security risk, at least to Hotel property. The employer certainly knew that the plaintiff would be in the rear yard during the night in the course of his duties.
76 The employer relied on Kozjak v Fairfax Community Newspapers Pty Ltd [2001] NSWCA 37, a case where a female employed to canvass advertising in a western suburb of Sydney was raped in an isolated area. The attack occurred during daylight hours and the employee had not previously complained to her employer that she felt at risk of actual personal attack. The case turned on its own facts.
77 The employer submitted that it was not open to the trial judge to find breach in respect of absence of direction about going into the rear yard because the particulars in the originating process made such an allegation against the Hotel but not against the employer. I cannot accept this submission. The issue was clearly opened up at trial in the evidence of the two experts which was treated as evidence going to the liability of each defendant. The initial focus of Mr Gale's evidence had been upon the allegation against the Hotel. Nevertheless, the case was fought on the basis that the employer left security up to the Hotel, and the Hotel and the employer made common cause at trial on the issue of breach. The plaintiff's solicitor provided a letter of particulars relying on the Jennings report as the basis of the claim against the employer as well as the Hotel. Written submissions at trial show that this point was taken against the employer (see par 43 thereof).
78 Apart from addressing the causation issues touching the two motor accidents, the judge did not deal with causation in his reasons. The employer submitted that the trial judge erred in failing to address causation, because before liability could be found, it had to be established that the measures that were unreasonably not in place would probably have prevented the robbery (see generally Duyvelshaff v Cathcart & Ritchie Pty Ltd (1973) 1 ALR 125). This complaint was not pressed as a want of reasons ground of appeal. This Court was invited to form its own view on causation, taking guidance from Kozjak and Modbury at 266[29], 269[40], 290[107] and 302[150].
79 In Chomentowski Mason JA said (at 1086):
The injury which the plaintiff sustained, although occasioned by deliberate human intervention, was the outcome of the very risk against which it was the duty of the defendants to safeguard the plaintiff as their employee. If, as was the case, it was the existence of that risk of injury which called for the exercise of care and the taking of precautions by the defendants, then the defendants' failure to take care may properly be regarded as the cause of the injury which occurred when the risk became an actuality.
80 I agree with the conclusion of the primary judge that there was causative negligence on the employer's part. There is no reason to think that the plaintiff would not have obeyed any directive about not going into the yard or at least not doing so unless particular precautions were taken.