Hauser v Commissioner for Social Housing [2013] ACTSC 104

4. The plaintiff was born in July 1961, and was 51 when he died. He moved into the apartment in April 2004, when he signed a tenancy agreement.

5. Before he moved in, the plaintiff had for a period been homeless, sometimes spending a few nights "couch surfing" with acquaintances, and at other times spending nights in a sleeping bag in the open. He had at an earlier time been a public housing tenant, and more recently had lived at Ainslie Village, a group housing facility associated with the Catholic church. He had been evicted from his room at Ainslie Village.

6. The plaintiff had for many years been on a methadone program, obtaining his medication from the Ainslie Pharmacy. He had Hepatitis C which was not apparently causing significant impairment before his assault. He had been diagnosed with schizophrenia, from which he seems to have made a recovery, or at least to have been in remission, by the time of the assault. There is a suggestion in the evidence that at some time in the past he had been suspected of suffering from multiple sclerosis.

7. It appears that there were twelve apartments in the block where the plaintiff lived, four apartments on each of three floors. The plaintiff's apartment was on the ground floor, and had three entry doors, one from a hallway inside the building and two from a veranda.

8. Late in 2004 Gordon Ralph and Christine Utiger moved into another ground-floor apartment in the building. Mr Ralph had been in prison at some earlier time, and this was known to officers of the defendant, although there is no evidence of the offence for which he had been sentenced, or that that information was known to the defendant.

9. Mr Ralph and Ms Utiger, also her son Ben, seem to have been unpleasant, aggressive and confrontational neighbours. At least by 2007, they had developed negative relationships with a number of tenants in the building.

10. The plaintiff's evidence was that he seemed to bear the brunt of Mr Ralph's anger. As he drove past Mr Ralph would call him "all sorts of names . . . for no reason at all". There were occasions when police were called to deal with disturbances. The plaintiff said that in the second half of 2007 he was the butt of a constant stream of taunts and abuse from Mr Ralph, who would occasionally pull plants out of his vegetable garden.

11. A file note made by a housing manager employed by the defendant, and responsible for the building, records that in January 2007 he served a notice on Ms Utiger in relation to arrears of rent. She responded with a torrent of abuse and foul language. Mr Ralph was also present, yelling abuse and swearing at the manager. Ms Utiger attempted to block his way when he went to leave the building, and both of them continued to swear and abuse him as he went to his car. As he was about to drive away Ms Utiger slammed her hand twice against a window of the car with sufficient force to cause him to be concerned that she would break the glass.

12. There was an incident in November 2007 involving the plaintiff and Mr Ralph and Ms Utiger. It is not clear exactly what happened, but police were called and soon afterwards a housing manager for the defendant prepared and served a notice under the Residential Tenancies Act 1997 asserting that Mr Ralph and Ms Utiger had been threatening other tenants, attempting to enter the property of other tenants unlawfully, verbally abusing other tenants and attempting to intimidate them, and vandalising private property. The police report into the incident suggests that there was some physical violence but that the plaintiff did not want any police action taken.

13. Later in the same month, the plaintiff made an application to the Magistrates Court for a personal protection order, asserting that Mr Ralph had assaulted him, damaged plants in his garden, spat at him and threatened to kill him.

14. A number of other tenants made written complaints to the defendant about Mr Ralph and Ms Utiger and her son.

15. On Friday 1 February 2008 Mr Ralph went into the plaintiff's unit. There was an altercation and some damage was caused to fly screens. Police attended and extracted written undertakings from Mr Ralph and Ms Utiger not to contact, threaten or harass the plaintiff for a specified short period.

16. On Monday 4 February 2008 the events occurred which give rise to the present action. At about 7.30 am the plaintiff saw Mr Ralph and Ms Utiger walking to their car to drive out of the parking area. As they drew level with the plaintiff's flat Mr Ralph yelled abuse at him, and stopped his car and got out. Mr Ralph opened the screen door to the plaintiff's unit. The door was closed but not locked. He came into the unit, yelling "I'm going to kill you. You're dead." The plaintiff told Mr Ralph to get out. Mr Ralph continued to approach him. The plaintiff, fearing for his safety, picked up a spray can and sprayed its contents at Mr Ralph. Mr Ralph then grabbed the plaintiff and forced him to the floor in the doorway. He held the plaintiff's head and banged it on the concrete patio. The plaintiff saw Ms Utiger standing on the patio holding a tyre lever. The plaintiff bit Mr Ralph's forearm to try to make him release his grip. Ms Utiger handed the tyre lever to Mr Ralph, who struck him forcefully on the back of the head with it, causing him injury. Mr Ralph and Ms Utiger then got into their car and drove away. Someone else telephoned the police. Mr Ralph's baseball cap had come off and he had inadvertently left it in the plaintiff's flat.

17. After about twenty minutes Mr Ralph and Ms Utiger returned, demanding the cap back. The plaintiff retreated into his unit and closed the front door, securing it with a chain. Mr Ralph walked to the door and pulled it so hard that the screws holding the chain in place were pulled out of the timber door jamb. The door opened and Mr Ralph entered, grabbed the plaintiff and struggled with him. The police arrived and Mr Ralph quickly left the flat. He was arrested by police and charged with offences of which he was ultimately convicted. Bail was refused and he served some months of a prison sentence. The plaintiff was taken to hospital by ambulance.

18. The plaintiff did not bring civil proceedings against Mr Ralph. It can be assumed that to do so would have been pointless, as he would not have been in a financial position to satisfy any judgment, and indeed might have been provoked by such a course to further violence.

19. The plaintiff brings this action against the defendant, the Commissioner for Social Housing, an entity established under the Housing Assistance Act and capable of being sued. The causes of action pleaded are negligence and breach of contract. The contract relied on is the tenancy agreement, pursuant to which the defendant agreed to provide the premises in a reasonably secure condition, and to repair any fault or damage causing the premise to be unsafe or insecure. The defendant also agreed in the tenancy agreement to repair any serious fault in any door which inhibited or unduly inconvenienced the plaintiff in the use of the premise. The defendant agreed to provide the plaintiff with quiet enjoyment of the property, not to permit any interference with the reasonable peace or comfort of the plaintiff's residence, and not to permit persons to threaten or cause injury to the plaintiff while occupying the residence. The statement of claim pleads that the plaintiff made numerous complaints about the level and quality of security of the residence to the defendant before he was injured.

20. Particulars of the defendant's alleged negligence were set out in the statement of claim as follows:

(a) Failing to provide safe and appropriate housing for the plaintiff

(b) Failing to provide adequate housing facilities for the plaintiff

(c) Failing to provide security doors to all entrances to the residence

(d) Placing the plaintiff into housing which it knew or ought to have known was unsuitable

(e) Failing to provide adequate and secure locks and/or means to secure the doorways at the premises that would have avoided the first attack

(f) Failing to provide adequate and secure locks and/or means to secure the doorways at the premises that would have avoided the second attack

(g) Failing to move the plaintiff to alternative accommodation after the attacks when the defendant knew or ought to have known that the plaintiff's psychological injury was being exacerbated as a result of remaining in the same premises

(h) Allowing or permitting the plaintiff to remain in the premises after the attacks when the defendant knew or ought to have known that the plaintiff's psychological injury was being exacerbated as a result of remaining in the same premises

(i) Failing to comply with its obligations under the standard residential tenancy terms under Schedule 1 of the Residential Tenancies Act 1997.

21. There is medical evidence in the form of two reports by the treating ear, nose and throat surgeon, Dr Pham, and a psychiatrist qualified as an expert witness, Dr Knox. Dr Pham found that the head injury caused hearing loss of 6.7% in the right ear and 3.8% in the left year, and persistent tinnitus.

22. Dr Knox's opinion, expressed in December 2010, was that the plaintiff suffered from moderately severe post-traumatic stress disorder for about two years after the assault, followed by low-grade realistic fear arising from the attack. His condition had been made worse, and perpetuated, by continuing to live in the same apartment, where his address was known to the assailants.

23. The plaintiff's solicitors qualified Dr LJ Cubitt, a professional mechanical engineer with part-time academic appointments, to provide an expert report. He inspected the premises in the plaintiff's presence in February 2011. His report was tendered, subject to objections in relation to which I imposed some limitations on its use. He did not give oral evidence.

24. Dr Cubitt noted that there were three doors providing access to the plaintiff's apartment. One of these was inside the building, providing access from a common hallway. The other two were on the same side of the building. Two of these doors had security screen doors fitted in addition, but one did not. The plaintiff identified this as the door through which the assailant had entered. This door was of glass in a wooden frame, with a wooden fly screen door with no lock. The outside door opened outwards. The flyscreen door opened inwards. The glass door had a conventional handle with a keyed lock. In addition it was fitted with a security chain. Dr Cubitt found that it took a significant amount of effort and time to lock the door with the key.

25. Dr Cubitt expressed the opinion that the door which was forced open by Mr Ralph had failed to provide safe and secure premises to the plaintiff, and that adequate locks should have been provided on all doors leading to his flat. If he had been provided with additional locks and a security door to that entrance to the flat, the probability of a person gaining access would have been significantly reduced.

26. Further, the door chain had been incorrectly fitted. The piece with the slot and groove to secure the chain had been screwed to the door in a vertical position, rather than horizontally as recommended by the manufacturer. If it had been correctly installed, Dr Cubitt's view was that the likelihood of the chain coming away from the door would have been reduced. The cost of an additional screen door with security lock would have been less than $300. The cost of a Yale deadlock would also have been less than $300. To replace the security chain and install it correctly would have cost less than $20.

27. I am not sure that much of the contents of Dr Cubitt's report required an experienced mechanical engineer. His conclusions are largely common sense and could have been arrived at by any adult of ordinary experience of the world. It should also be noted that Dr Cubitt does not express the opinion that the screws securing the chain would not have been pulled out by the assailant if the security chain had been correctly installed.

28. Evidence was given by Ms Bernadette Maher, senior manager, tenancy operations, with the defendant, with whom she had been employed for twenty-two years. She had general responsibility for the defendant's tenancy operations throughout the Australian Capital Territory, with a staff of sixty-five. She had reporting to her a number of housing managers for geographical areas, each responsible for about 250 properties. After an initial inspection soon after a tenant moved in, their housing managers would conduct at least one visit to each property per year. This would provide an opportunity to note and deal appropriately with any complaints by tenants, as well as to check on the condition of the property.

29. Ms Maher's evidence was that there was a chronic shortage of public housing, with a lengthy waiting list at any given time. Applicants were placed in one of four categories. The highest priority was given to applicants in urgent need of housing, including existing ACT Housing tenants who needed to be re-housed urgently. The second priority included ACT Housing tenants whose current housing was seriously overcrowded or was no longer suitable because of serious medical or other reasons. ACT Housing tenants who wished to transfer for reasons of personal preference were in the lowest category.

30. By way of example, there were some 1,800 applicants on the waiting list in July 2012. The average waiting time for the highest priority was 142 days, and for other categories about 500 days. Ms Maher explained the process for terminating a tenancy for unpaid rent, noise, nuisance or other disruptive behaviour, and the condition of the property. A housing manager would first contact the tenant to discuss the issue. A notice to remedy would then be served, and housing staff would attempt to provide assistance and referrals to relevant support services. Where the tenant did not engage with housing staff or repeated breaches occurred, a notice to vacate would be served. This would if necessary be followed by an application to the ACT Civil and Administrative Tribunal seeking orders for compliance with the tenancy agreement, or in serious cases a termination and possession order. There would then be a delay awaiting a hearing date in the Tribunal. At the hearing housing staff would attend and prove their case by evidence if necessary.

31. Ms Maher also explained that it was the longstanding policy of ACT Housing to provide rental premises with two security screen doors, regardless of the number of external doors and regardless of whether the property was a flat or a house.

32. There are a number of provisions of the Civil Law (Wrongs) Act 2002 which are applicable to the determination of the plaintiff's claim against the defendant. Section 42 provides that for deciding whether a defendant was negligent, the standard of care required is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident. Section 43 provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, a risk of which the person knew or ought to have known); the risk was not insignificant; and in the circumstances a reasonable person in the position of the defendant would have taken the precautions. In deciding whether a reasonable person would have taken precautions, the court must consider, among other relevant matters, the probability that the harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity creating the risk of harm.

33. Section 44 provides that in relation to liability for negligence, the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done. The subsequent taking of action that would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not to be taken as an admission of liability.

34. Section 45 of the Act deals with causation. The general principle laid down is that a plaintiff must establish factual causation (that the negligence of the defendant was a necessary condition of the happening of the harm) and that is it is appropriate for the scope of the defendant's liability to extend to the harm so caused (the scope of liability). In deciding the scope of liability, the court must consider whether or not, and why, responsibility for the harm should be imposed on the defendant. The plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

35. Also relevant to the plaintiff's claim are the provisions in Chapter 8 dealing with the liability of public authorities. Section 110 sets out principles to be applied in deciding whether a public authority has a duty of care or has breached a duty of care. The first is that the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions. Next, the general allocation of the resources by the authority is not open to challenge. Thirdly, the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities, and not only by reference to the matter to which the proceedings relates. Fourthly, the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions in the matter to which the proceeding relates.

36. It may also be relevant for me to consider the applicability of Part 12.1 of the Act, which deals with occupiers' liability. Section 168 defines "occupiers'" to include a lessor under an obligation to the tenant to maintain or repair the premises, or who could exercise a right to enter the premises to carry out maintenance or repairs. The section imposes a duty on an occupier to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury because of the state of the premises, or things done or omitted to be done about the state of the premises. In deciding whether the duty of care has been discharged, the court must consider a number of factors, including the gravity and likelihood of the probable injury, the nature of the premises, the knowledge the occupier has or should have about the likelihood of people or property being on the premises, and the burden on the occupier of removing the danger as compared to the risk of the danger.

37. Counsel for the plaintiff took me to a passage from Lyons v Commissioner for Housing [2004] ACTSC 126, a claim by a tenant against the present defendant (under an earlier title). I there said at [51]:

The High Court has also in recent years refined the principles governing the liability of a public authority to a member of the public: see, for example, Romeo v Conservation Commission of the Northern Territory; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council; Graham Barclay Oysters Pty Ltd v Ryan [citations omitted]. Those were all cases involving claims by an ordinary member of the public against a government or local government instrumentality. It seems to me that the duty of care owed by the defendant to the plaintiff in this case is of a different and more onerous nature than the duty owed, for example, by a state government department or a municipal council to a citizen. In this case the defendant was both the occupier of the land on which the tort is alleged to have been committed, and in addition the plaintiff's landlord and the body responsible for the provision of public housing in Canberra. Taking account of the eligibility criteria for public housing, it can reasonably be said that its tenants are, as a section of the community, inherently more vulnerable than the public at large, so that its duty of care to its tenants can reasonably be seen of a higher degree than the duty which might be owed by a landlord to a residential tenant in the commercial market.

I might add that I also said in the same decision at [50]

At least since the decision of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna, it has been accepted that the general principles of negligence apply to a claim against an occupier, so that the different levels of standard of care which previously applied at common law to different categories of entrant are no longer relevant. Since the later decisions of the High Court in Northern Sandblasting v Harris and Jones v Bartlett, it can be said that in the absence of any relevant contractual provision in the tenancy agreement, a landlord's duty of care to a tenant is to be considered by reference to ordinary principles of the law of negligence [citations omitted].

The decision in Lyons arose from an incident in 1996. The reference to the ordinary principles of the law of negligence must now be read as subject to the provisions of the Civil Law (Wrongs) Act.

38. The present plaintiff was not injured by any direct act of the defendant, or anyone for whom the defendant is or was vicariously liable. He was injured in a savage criminal assault by another housing tenant. Dixon J said in Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at 261:

But, apart from vicarious liability, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. 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.

His Honour went on to refer to certain special relations which could be the source of such a duty, including that of parent and child.

39. Gleeson CJ expounded the principles at greater length in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13] and following. The plaintiff had been injured when criminally assaulted while leaving work following the closure of the shop where he worked at night. The shopping centre lights had been turned off at about the time he left to cross the car park where a number of unidentified men attacked him. His action was against the operator of the shopping centre, the alleged negligence being the turning off of the lights immediately on the closing time for the shops in the centre. The court unanimously accepted that the defendant as occupier of the land owed a duty of care to the plaintiff, but by majority found that there had been no breach of the duty. The duty as occupier related to the physical state or condition of the premises. The defendant had had no control over the behaviour of the assailants, and no knowledge or forewarning of what they planned to do. They had not been enticed to the car park by the defendant and were strangers to both parties. The fact that, as occupier of the car park, the defendant had the capacity to decide when it would be lit at night did not mean that it assumed a responsibility to protect anyone who might lawfully be in the car park against attack by criminals (at [25]).

40. Gleeson CJ mentioned at [26] relationships which might give rise to a duty to take reasonable care to protect from the criminal behaviour of a third party. The relationships might include employer and employee, school and pupil, and bailor or bailee.

41. His Honour noted at [29] the general rule that, in the absence of some special relationship, the law did not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of harm was foreseeable. His Honour said at [34] that it was unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist to 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. Such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another.

42. His Honour also found (at [40]) that on an accurate legal appreciation of the defendant's duties as an occupier, its omission to leave the lights of the car park on might have facilitated the crime (as did its decision to provide a car park, and the plaintiff's decision to park there). But it was not a cause of the plaintiff's injuries.

43. Hayne J said at [111] that in cases where a duty to control the conduct of a third party had been held to exist, the party who owed the duty had had power to assert control over the third party. His Honour gave examples of gaoler and prisoner, and parent and child. He went on at [113] to say that whilst the defendant might have had power to act in a way that might have made the assault less likely (by leaving the lights on) the conduct which had caused the injuries had been deliberate criminal wrongdoing, by its very nature unpredictable and irrational. Such conduct occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who were caught. Such conduct occurred despite the efforts of society as a whole to prevent it. This was hardly consistent with the contention that a particular member of society should be held liable for not preventing it.

44. His Honour also noted the undesirability of establishing a principle whereby a defendant in the position of the supermarket operator might be held liable for all the damage, because it had been sued alone, whereas if sued jointly with the assailant it would have been found to contribute little if anything to the damages awarded to the plaintiff. If the assailants had been able to be identified and had sufficient assets to meet a judgment, the plaintiff would have had full compensation for his injuries from them. Any contribution by the shopping centre operator had been negligible. To establish such a principle would shift financial responsibility from the consequences of crime from the wrongdoer to individual members of society who have little or no capacity to influence the behaviour which caused injury (at [116]).

45. Counsel for the defendant placed some reliance on a decision of the New South Wales Court of Appeal, Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381; (2002) 55 NSWLR 659. The plaintiff owned a residential unit, and was assaulted and injured by a robber inside the building on common property on returning home from work. She sued the body corporate and the building manager in negligence. There had been an entry door to the building with a lock but often residents left the door unlocked at night. Some months before the incident the building manager disarmed the lock, and the plaintiff was aware that it could not be locked any longer. There had been no break-ins through the front door of the building previously, although there had been break-ins through balconies. Heydon JA said at [61] that the risk of the assault was real and not far-fetched, so that it was hard to avoid the conclusion that it was reasonably foreseeable. But while reasonable foreseeability was a necessary condition for liability in negligence, it was not sufficient, and this was particularly so where the cause of injury was the criminal act of a third party. His Honour referred at [73] to the fact that in the case under appeal, and in many other similar cases involving criminal acts of third parties, one found unpredictable, wanton and random criminal behaviour; a lack of knowledge by the defendant about the incidence of that behaviour; a lack of control by the defendant over those responsible for the behaviour; irrationality in holding the defendant civilly liable for what the state had not been able to prevent despite intense efforts and severe criminal sanctions; no more than a relatively minor contribution by the defendant to the loss suffered by the plaintiff, in comparison to the role of the criminal; and a lack of analogy with the standard relationships and circumstances which operated as exceptions to the general rule of non-liability. The plaintiff's claim failed.

46. Counsel for the defendant also relied on a decision of McClellan J in Eliezer v Residential Tribunal (2001) 53 NSWR 657. The Residential Tenancies Act 1987 (NSW) provided in s 22(1)(b) that the landlord must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises. This provision was similar to, though not verbatim with, a provision in the tenancy agreement in the present action. His Honour held that the section did not extend an obligation to the landlord to control the activities of the occupants of other units within a strata complex. The landlord's obligation was confined to matters over which the landlord had physical or legal control, and did not require the landlord to take proceedings or other steps to control the activities of strangers. The decision is distinguishable from the facts in the present action by reason of the fact that the landlord owned only one unit in the development, and that the conduct the tenant was complaining of was that of tenants of other units.

47. Another decision of relevance to principle in a case of this kind is the unanimous decision of the High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420. The defendant operated a restaurant and opened on New Year's Eve 2002 with a band, singers and dancing. An incident on the dance floor led to fighting. A patron left and returned with a gun. He shot and injured the plaintiffs. They sued the restaurant in negligence, for not providing adequate security. They were ultimately unsuccessful. The Court applied the principles set out in the Civil Liability Act 2002 (NSW), the equivalent of the Civil Law (Wrongs) Act. These were generally in similar and largely in identical terms. The Court found that the restaurant owed a duty of care to the plaintiffs to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other persons, by reason of provisions in the Liquor Act 1982 (NSW). However, the duty was not absolute. It was a duty only to take reasonable care. The Court concluded that the plaintiffs had not established a breach of the duty. The restaurant knew or should have known that there was a risk that there would be violent, quarrelsome, or disorderly conduct on the night. The probability of harm was to be assessed prospectively, before the function began, not with the wisdom of hindsight and by reference to what occurred on the night.

48. It was necessary to consider the issues of factual causation and scope of liability, as governed by the Civil Liability Act. Factual causation was to be determined by the "but for" test: would the harm have occurred but for the negligent act or omission? On the facts, the "but for" test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel the shootings would not have taken place. As in Modbury, the event which caused the injury to the plaintiffs was deliberate wrongdoing, and the wrongdoing occurred despite society devoting resources to deterring and preventing it through the work of police forces and the punishment of those offenders who were caught (at [57]). The submission that the injuries to the plaintiffs were caused by the failure of the restaurant to take steps that might have made their occurrence less likely was to be rejected.

49. In the present action, there is ample evidence that Mr Ralph and Ms Utiger were unpleasant and aggressive people. There is evidence that Mr Ralph had threatened to assault and even to kill the plaintiff, and that much of this was known to the defendant through its employees. The evidence falls short of satisfying me that the defendant knew or should have known that there was a real likelihood that Mr Ralph would commit a serious assault on the plaintiff, of the kind which happened. I am not satisfied that there was any basis for the defendant being aware of more than the likelihood that Mr Ralph would continue to harass and verbally abuse the plaintiff.

50. Additionally, I am not satisfied that the actions which counsel for the plaintiff submits should have been taken by the defendant would have afforded sufficient protection to the plaintiff from the assault which occurred. It should be remembered that when Mr Ralph first invaded the plaintiff's apartment, the door through which he entered was not locked. It was in the course of this invasion that he struck the plaintiff with a tyre lever and, I am satisfied, caused the serious injuries of which the plaintiff complains.

51. The second entry, when Mr Ralph came back for his cap and grappled with the plaintiff, was the one where he broke in, forcing the door open and the screws securing the safety chain from the timber. I am not satisfied that on this second invasion he caused the plaintiff any further physical injury.

52. On those findings of fact, it is strictly unnecessary for me to deal in any detail with the issues of scope of duty of care, breach of duty, and factual causation. On those issues, if it had been relevant to determining the case, I would have come to the view that whilst the defendant was never under any obligation to install a third security screen door, it should have taken steps to ensure that the door to the apartment which was not equipped with a screen door had an adequate lock, either as part of the conventional lock or as an additional Yale-style lock. However, I would not have been satisfied that such a lock would necessarily have been enough to keep Mr Ralph out of the apartment if he was determined to invade it as he did. He was determined on an aggressive criminal course of conduct and could probably have forced the door open, perhaps simply by kicking it open, or perhaps by breaking the internal glass. The door was not of sufficient robustness to keep out a determined criminal invader, but there was no obligation on the defendant to provide a door of such robustness.

53. It follows that I am not satisfied that such reasonable measures as should have been taken by the defendant would have prevented the assault.

54. The cause of action in contract is based on the same facts. I am not satisfied that the defendant committed any breach of the tenancy agreement, or that any breach relevantly caused the invasion or the injuries to the plaintiff.

55. The claim on behalf of the plaintiff therefore fails.

56. I have found that effectively all of the plaintiff's injuries were occasioned during the first assault, when Mr Ralph entered his flat through an open or at least unlocked door, so that nothing the defendant did or failed to do could have affected that invasion.

57. If I had been satisfied that all of the injuries sustained by the plaintiff in the assault were caused by the negligence of the defendant, I would have awarded the plaintiff general damages of $50,000.00, plus interest and past treatment expenses of about $1,000.00 and a further $1,000.00 for domestic assistance. The effect of the plaintiff's death is that there would be no award for general damages or any other component after the date of death.

58. There will be judgment for the defendant with costs.

59. I have no information as to whether the plaintiff left a will or whether there has been any grant of probate or administration. Having regard to his financial position I suspect that his cause of action against the defendant was his only asset of potential value. If any party proposes to take this matter any further it will be necessary for the record to be appropriately amended to take account of the death of the plaintiff.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Solicitor for the defendant: ACT Government Solicitor