Lesandu Blacktown Pty Ltd v Gonzalez

J A Gracie (Applicant) D W Elliott (Respondent) Solicitors:

Gillis Delaney Lawyers (Applicant) Gerard Malouf & Partners (Respondent) File Number(s): CA 2012/56249 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-10-28 00:00:00 Before: Charteris DCJ File Number(s): DC 2010/382182

Judgment 1BASTEN JA: At about 11.35am on 17 September 2008 Manuel Gonzalez, the respondent in this Court, approached the automatic sliding doors at the entrance to the Harvey Norman store in Blacktown. As they opened, two young men rushed through, one of whom knocked the respondent over, causing him significant injuries. The men had attempted to obtain electrical goods with false identification papers, but when they realised that their fraud may have been discovered, they turned and fled. 2If those were the only facts, it would not be correct to hold the store owner (the applicant) liable in negligence for the injury to Mr Gonzalez. 3The respondent relied upon two additional circumstances to justify a claim for damages against the applicant in these unpromising circumstances. The first was that a member of staff in the electrical department, where the men had sought to buy expensive equipment, suspecting that they were attempting to perpetrate a fraud, activated a mechanism which locked the doors to the store. That occurred as the men were approaching the doors in order to leave, having been told to check the status of their account with their bank. The store manager apparently asked them to return to the counter, which they started to do. Shortly thereafter, Mr Gonzalez approached the movement-activated sliding door, which did not open to allow him to enter. 4The second circumstance was the action of a salesman in the furniture department who, seeing Mr Gonzalez standing outside the door, and not knowing why it had been locked, released the locking device so that he could enter. It was at that moment that the suspected fraudsters, seeing an opportunity to escape before the police arrived, decamped, knocking Mr Gonzalez to the ground. 5Even in those circumstances the claim for liability brought against the applicant was fraught at a number of levels. First, it was unclear whether the applicant owed Mr Gonzalez a duty of care in respect of the conduct of third parties, whether criminal or otherwise. Secondly, it was unclear what the applicant should have done, if anything, to avert the risk which materialised. Thirdly, it was unclear that any breach on its part caused the injury in a legally relevant sense. 6Despite these difficulties, the trial judge, Charteris DCJ, upheld Mr Gonzalez's claim and awarded him damages in an amount of $42,500. The applicant sought to appeal. Since there was no dispute as to the amount in issue, which is well below $100,000, the applicant required leave: Supreme Court Act 1970 (NSW), s 101(2)(r). Despite the relatively small amount in issue, there should be a grant of leave to appeal because the finding of liability is unsupportable and should be corrected to maintain the regularity of the administration of justice.

Duty - 'special relationship' 7The trial judge held that the applicant owed the respondent a duty of care, because the respondent stood in a "special relationship" to the applicant. This concept was not derived from the Civil Liability Act 2002 (NSW), which governed the claim, but from the general law. To appreciate the significance of the concept it is necessary to refer to the cases in which it has been articulated. 8Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, a case having common elements with the present facts, involved a criminal assault on Mr Anzil in the shopping centre car park. Mr Anzil was employed by a tenant in one of the stores and was going home after work; it was dark and the car park was unlit. Mr Anzil sued the occupier, Modbury Triangle, saying that it was obliged to take reasonable steps to protect him from criminal attack, which it breached by failing to keep the lights on. The Court held that no relevant duty arose in those circumstances. As explained by Gleeson CJ at [17]: "That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties." 9Gleeson CJ noted that it was "unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in 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": at [34]. He continued at [35]: "The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship ..., would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. ... Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable." 10The act of the third party in Modbury Triangle was deliberate and directed at the plaintiff. The occupier had no relationship with the assailant, but it had a relationship with the plaintiff who was on its land in pursuit of a common commercial interest, being the business of its tenant and the plaintiff's employer. Further, the occupier controlled the lighting in the car park. Unlit areas to which the public has access may be dangerous late at night. People avoid them if they can. However, those factors were held insufficient to give rise to a duty owed by the occupier to the plaintiff. 11The limits of a potential duty in respect of safety of persons on premises open to the public were not explored, but Gleeson CJ stated at [26]: "Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee." 12These were, it may be accepted, examples of the kind of "special relationship" referred to at [34] and noted above. 13The respondent sought to distinguish Modbury Triangle on its facts: however, a precise factual comparison is not necessarily decisive. It is the principle which is to be derived from the reasoning that is critical for present purposes. With respect to the facts of the present case, the respondent identified as a key consideration the act of the applicant (through the manager of the electrical store) in locking the external door at a time when the suspects were leaving in an orderly manner. That, it was submitted, was an active exercise of control which created a novel danger. Although the suspected fraudsters had, at that stage, revealed no propensity to violent action, there was no doubt a foreseeable risk that they would react, albeit unpredictably, on discovering that the front door was locked. However, the particulars of negligence all related in various ways, not to the locking of the door, but to the release of the locking device in circumstances which placed the respondent at risk. In broad terms, the two omissions relied upon were, first, any means of communicating the reason for locking the doors to the salesman in the furniture department who, without knowing how the doors came to be locked, released the mechanism. The second omission was said to be a failure to have security officers in the store to deal with suspected fraudsters. 14Where the harm feared is a consequence of the actions of third parties, the critical question may well be, as the respondent's submissions implied, the extent to which the defendant should reasonably be expected to control the activities of those third parties. The question of a special relationship is usually discussed in that context. Thus, in the seminal case of Smith v Leurs [1945] HCA 27; 70 CLR 256, to which reference was made in Modbury Triangle, the issue in dispute was the extent of the liability of parents for the harm caused by their young son using a shanghai to project a piece of gravel into the eye of the plaintiff. The argument, not accepted by the Court, that community expectations required parents to remove such toys from their children (especially boys), assumed a degree of control over the miscreant. 15In other cases, the relevant considerations are less well defined. It is arguable that the evaluative exercise miscarried in the present case for three reasons. First, by asking a question as to the existence of a duty owed to the plaintiff, the trial judge focused too precisely on the facts of the case as demonstrated by the events which occurred. That was the error exposed by Gleeson CJ in Modbury Triangle. If the duty to protect were owed to those seeking to enter the store, would the class not extend to members of the public already in the store and staff within the store? Might not the conduct against which protection was to be provided include the act of a suspected fraudster making a dash, causing risk to persons inside and outside the store, upon realising that "the game was up"? Would the duty extend to those trying to steal goods, rather than obtain them by fraud? As further noted in Modbury Triangle, the general proposition that an occupier does not owe a duty to protect persons on its land from criminal behaviour of strangers "cannot be ignored by pointing to the facts of the particular case and saying (or speculating) that the simple expedient of" taking whatever step the plaintiff can identify as sufficient to prevent the injury, would have prevented the attack: at [29]. It might be added that, the more narrowly the circumstances giving rise to the duty are confined, the less the risk of the actual circumstances materialising and hence the greater the likelihood that a reasonable person would conclude that the risk was too slight to warrant taking any action at all. There was no evidence in this case that the circumstances which gave rise to the injury had occurred before in this store, in any other store owned by the applicant, or as to its incidence in other stores around the country, nor as to what were considered in the industry to be reasonable steps to minimise the risk. 16Secondly, although it is true that the duty cannot be assessed adequately at the level of particularity revealed by the facts of one case, it is true that the inquiry as to the existence of a duty may be close to meaningless without determining its scope (or content or extent); and scope may only be usefully assessed bearing in mind the harm suffered and the alleged breach. This may be illustrated by three passages in the judgment of Hayne J in Modbury Triangle. "[104] In Sutherland Shire Council v Heyman [[1985] HCA 41; 157 CLR 424 at 487], Brennan J pointed out that 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member'. ... Even that, however, may not suffice in some cases. [105] In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend. ... [109] ... The duty which the respondents alleged that the appellant owed must be understood to have been a duty to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises." 17Thirdly, the language of "special relationship" does not give rise to an abstract exercise in characterisation. Rather, as recognised by all members of the majority in Modbury Triangle, it is a reflection of the legal principle expressed by Gleeson CJ in the passage set out above: at [42]-[43] (Gaudron J); [98] and [117] (Hayne J), and [147] (Callinan J, although focusing on the relationship between the plaintiff and the defendant). In the present case, no criteria were identified which would have warranted the conclusion that there was a special relationship between Mr Gonzalez and the applicant. All that the trial judge found in this respect was a conclusory statement that "there was a special relationship between the [applicant] and the members of the public, including customers inside and outside the store": Judgment, p 24. It would seem to follow that the occupiers of all retail premises in the country, even if they themselves did not conduct the retail businesses but had tenants or franchisees, had a duty to take reasonable steps to protect anyone in or near their stores from criminal attacks or, possibly, other forms of misbehaviour. Such a conclusion would contradict the underlying assumption of the common law referred to in Modbury Triangle.

Other difficulties 18Part 1A, Div 2 of the Civil Liability Act is headed "Duty of care". It includes two sections, 5B and 5C. Despite the heading, s 5B commences with the proposition that a person "is not negligent in failing to take precautions against a risk of harm unless ...", suggesting that it engages questions of breach. However, the requirement that the risk of harm be foreseeable is an element of duty. More importantly, the statement of "general principles" in s 5B is focused on "risk of harm", which must be foreseeable, not insignificant and such as would lead a reasonable person to take relevant precautions. If the requirements are satisfied, then the person is negligent. One then turns to the second set of general principles set out in s 5D, dealing with causation. Section 5D assumes that liability will follow upon a determination that "negligence caused particular harm". Bearing in mind that "negligence" is the conceptual link between ss 5B and 5D, the plaintiff must establish on the balance of probabilities that the failure to take specified precautions against a risk of harm caused the materialisation of that risk in respect of the harm he or she suffered. 19Difficulties in determining whether a relevant duty exists on the margins of the law of tort may flow from the way in which the exercise was approached. To an extent, that involves an evaluative judgment, albeit an evaluative judgment of a particular kind. Such judgments may depend upon the weighing of various factors which pull in conflicting directions. Transparency of decision-making requires that, so far as practicable, reasons identify and explain the effect of the material factors. Beyond that, attempts at rational explanation may be of limited value. 20A different approach is desirable where the decision relies on satisfaction of a number of independent elements. In such cases, transparency requires an orderly assessment of the separate elements. The tort of negligence is sometimes seen to require such a methodical approach. For example, in Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 at [115], Kirby J recommended that a trial court should address a negligence claim by reference to standard questions as to (1) duty, (2) scope of duty, (3) breach and (4) causation. However, an inflexible methodology has proved unhelpful in marginal cases. As the terms of ss 5B and 5D and the passages from the judgment of Hayne J in Modbury Triangle set out above demonstrate, it is not possible to separate entirely the separate elements of a putative tort. 21Although it is sufficient to conclude that there was no duty in the present case, it may be worthwhile to consider whether the respondent's claim should also have failed on other grounds.

Breach 22The nature and content of the duty upheld below appeared from the findings as to breach. Thus the trial judge was satisfied that "there was no adequate system for the apprehension or detention of suspected offenders": Judgment, p 24. That would have involved having available "security staff who could protect the defendant's staff and customers in the store" where it was thought necessary to restrict the liberty of individuals in the store. Further, if doors were to be locked, a system was required whereby "all members of the staff" would be made "aware of it": Judgment, p 25. 23Once the fraudsters realised the "game was up" they could, predictably, have made a dash for the doors, whatever the staff did. Anyone in the store or in the doorway who obstructed their flight would have been at risk. The idea that the applicant could reasonably have been expected to take significant steps to prevent such conduct appears to be a product of hindsight based on an understanding of precisely what in fact occurred. Absent hindsight, it was not possible to say what steps could have been taken which would have been effective to prevent the injury suffered by the respondent. 24The first question raised by s 5B is whether the risk was foreseeable, a test which, as noted by Hayne J in Modbury Triangle in discussing duty, almost inevitably gives rise to an affirmative answer: at [100]. 25The question whether the risk was "not insignificant" was not assessed in those terms. There was no evidence as to how frequently customers attempted to acquire goods by fraudulent means, nor as to the likelihood that such attempts would be uncovered whilst the customer was in the store. As discussed above, the possibility that a fraudster might seek to escape hurriedly, when aware that the fraud had been uncovered or at least suspected, might involve risk, regardless of whether an attempt was made to lock the doors, as in this case. Various degrees of unpredictability involved in this assessment make it difficult to conclude that the risk was "not insignificant". Finally, the section required the assessment of what precautions a reasonable person would have taken in all the circumstances, again without the benefit of hindsight and without requiring a sophisticated prediction about the unpredictable. Each of these factors might also be relevant to the existence of a relevant duty. 26The requirement in s 5B(2)(a), to assess "the probability that harm would occur if care were not taken" tends to trench upon issues of causation, again demonstrating the difficulty of dividing the elements of negligence into watertight compartments. 27Given the conclusion that there was no duty of care, it is an artificial exercise to pursue the question of breach further.

Causation 28There was no discussion of causation. Unlike duty, which must be assessed prospectively, causation works by hindsight: it asks whether 'but for' the breach the injury would have occurred: Civil Liability Act, s 5D(1)(a). That involves an hypothetical assessment. In many cases all that can really be said is that reasonable precautions would have reduced the risk of injury. How much reduction is sufficient? Is it necessary that the likelihood of injury should fall below 50%? But if the risk was always low (a 5% risk may well be foreseeable), it is not clear how that element is to be assessed. 29In the present case, the issue of causation was to be determined in accordance with the principles set out in s 5D of the Civil Liability Act. Section 5D imposes a structure on the assessment of causation and may thereby qualify the approach permitted by the common law: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [43]-[44]. 30The structure of s 5D rests upon a fulcrum requiring that the negligence be a necessary condition of the harm, commonly identified as the 'but for' test: s 5D(1)(a). The section further reflects the general law understanding that this test is both over-inclusive and under-inclusive. To the extent that it is over-inclusive, its consequences may be limited by the second limb of sub-s (1), incorporating an 'appropriateness' test for the scope of liability. The possibility that a 'but for' test will, in the "exceptional" case, exclude liability where it should be imposed, is provided for in sub-s (2). 31For the negligent act to be a necessary condition of the occurrence of the harm requires, in substance, that a plaintiff prove on the balance of probabilities that without the negligence the harm would not have occurred. In a straightforward case, it may be possible to say that the plaintiff would simply not have been in harm's way, absent the negligence of the defendant. For example, a doctor injured while attending a motor vehicle accident victim would not have been on the roadway absent the negligent conduct of the driver of the vehicle which caused the accident: Chapman v Hearse [1961] HCA 46; 106 CLR 112. Cases of sequential negligence may give rise to a question as to where the line should be drawn limiting the consequences of the initial negligent act, but that is not the issue in the present case. 32The issue in the present case derives from the coincidence which put the respondent in the path of the fraudsters at the moment they made their escape. An event which had a low probability of occurrence would probably not have occurred if any of the contributing circumstances were changed. Thus, a patient who suffers an unlikely mishap in the course of surgery would probably not have suffered the mishap if the surgery had taken place at any other time, as it would have done if she had been warned of the relevant risks: Chappel v Hart [1998] HCA 55; 195 CLR 232. In Chappel, the majority, upholding liability, looked to additional factors. Thus, Gaudron J at [8], quoting Dixon J in Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 at 649 held that "breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach". Gummow J at [66]-[67], and Kirby J at [93] paragraph 3, also looked for additional features which warranted imposition of liability in that case. 33In Adeels Palace, the defendant was the operator of a restaurant. During the course of New Year's Eve celebrations, a fight erupted and one of the participants who was injured left the restaurant and returned soon after with a gun. The plaintiffs were each shot and wounded. The putative negligence was in failing to have adequate personnel at the door. That course would, the plaintiffs contended, have had one of two effects: either it would have deterred the gunman from seeking to re-enter the premises, or the security staff could have prevented him re-entering. The Court held at [50]: "Recognising that changing any of the circumstances in which the shootings occurred might have made a difference does not prove factual causation. Providing security at the entrance of the restaurant might have delayed the gunman's entry; it might have meant that, if Mr Bou Najem was a random victim, as seemed to be the case, someone else might have been shot and not him. But neither plaintiff proved factual causation by pointing to possibilities that might have eventuated if circumstances had been different." 34The Court also considered whether, accepting that the putative negligence was not a necessary condition of the occurrence of the harm, it should nevertheless be treated as an exceptional case in which liability should be imposed on the defendant, pursuant to s 5D(2). The Court held that it would be "contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs": at [57]. The reasoning continued: "As in Modbury, the event which caused the plaintiffs' injuries was deliberate criminal wrongdoing, and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person's criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs' injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected." 35The respondent cannot rely on s 5D(2) to establish causation absent proof that the negligence was a necessary condition of his injury. However, it was open to the respondent to prove causation by establishing that, if specified steps had been taken, which the applicant was obliged to take, it was more likely than not that he (the respondent) would not have suffered the harm which he did. 36Not all cases lend themselves to a finding as to prevention of harm; in many cases, the evidence will only allow a finding as to reduction in risk. Because the standard of proof involves the balance of probabilities, a finding that the harm would probably not have happened is sufficient. On a probabilistic analysis, it is not necessary to prevent the risk arising (and thus guarantee safety): often reasonable precautions will merely reduce the risk. In Adeels Palace the fact that the shooting occurred led to an assessment of conduct which would have deterred or prevented entry of the gunman to the premises. The present case is analogous, although the question revolves around the exit of the person who was the direct cause of the harm from the premises. The analogy arises because in neither case was the presence of the victim in any way affected by the conduct of the person who caused the harm or the putative negligence of the defendant. Further, in each case the risk of injury was caused by the unpredictable (and criminal) conduct of the third party. The circumstances thus differ from those in which the risk of harm is directly created by the alleged negligence of the defendant, with no third party intervention: cf Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267. 37In Adeels Palace, the High Court distinguished Chappel v Hart: at [52]-[53]. One important point of distinction was the need in Adeels Palace (as in the present case) to consider the unpredictable conduct of the third parties. If there had been security staff in the store, it is quite possible that they would have questioned the fraudsters and thus delayed their departure. Whether they would have attempted to stop the fraudsters leaving if they had chosen to "make a break for it", and whether their attempts would have been successful, are matters of speculation. A real possibility remains that by the time the fraudsters ran the respondent would have been in their way. Similarly, if the doors were locked and not reopened, further events must be posited, including the possibility that the respondent waited outside the doors, that they were eventually opened and that the fraudsters then sought to make good their escape. In short, it is quite unclear whether the proposed precautions would have lessened the risk of harm to the respondent. It was, therefore, not demonstrated that the failure to take the proposed precautions caused the harm suffered by the respondent.

Conclusion 38The possibility of fraud in a retail store may readily be foreseen. The unpredictability of response of the suspected fraudster suggests that prescribing a duty to take specific steps may be unrealistic, at least in the absence of evidence suggesting an industry practice and testing of the proposed solutions. Further, the hypothetical assessment of the consequences of such steps, even in a known situation, may amount to no more than speculation. 39That analysis applies in the present case. No relevant duty of care was established. It is not helpful then to locate error in an inadequate assessment of breach, but it is apparent that the assessment of causation was deficient. Even assuming a relevant duty, the respondent failed to establish steps which should have been taken in the exercise of reasonable care and which would have reduced the risk of injury in a practical sense. There was no evidence of such matters and the case was not one in which the mere coincidence of the nature of the risk and the harm suffered could lead to an inference of a relevant causal connection. 40The conclusion reached by the trial judge, not without some hesitation on his part, should be set aside. The Court should make the following orders: (1) Grant the applicant leave to appeal. (2) Direct the applicant to file, within seven days, the draft notice of appeal. (3) Allow the appeal and set aside the judgment in the District Court. (4) Order the respondent to pay the applicant's costs in this Court. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). 41MEAGHER JA: The applicant (Lesandu) seeks leave to appeal from a decision of Charteris DCJ holding it liable to the respondent (Mr Gonzalez) for injuries sustained on 17 September 2008. The primary judge awarded damages of $42,400 in respect of those injuries. This Court heard the argument for leave to appeal concurrently with the argument on the appeal. For the reasons which follow it is my view that leave to appeal should be granted and the appeal allowed.

The relevant events 42There is no challenge on appeal to the facts as found by the primary judge. In September 2008 Lesandu had the care and control of the Harvey Norman retail premises in the Blacktown Megacentre. Various areas of those premises were occupied by different franchisees trading under the Harvey Norman name. The area nearest the main entrance to the store was occupied by a franchisee selling furniture. An area towards the back was occupied by a franchisee selling electrical goods. At about 11.30am on 17 September 2008, Mr Gonzalez arrived in the forecourt area at the entrance to the store. He was proposing to return an item previously purchased. At the time he was 77 years old. The events which followed were captured on closed circuit television. 43The automatic sliding doors did not open. Unbeknownst to Mr Gonzalez and to Mr Battenby, an employee working in the furniture section who could see Mr Gonzalez waiting outside the door, it had been locked by an employee who worked in the electrical goods section so as to prevent two males, suspected of attempting a fraud in relation to the purchase of valuable electrical goods, from leaving the store. Those two males became aware that the door was locked and that the manager of the electrical goods section had telephoned the police. Mr Battenby opened the door to permit Mr Gonzalez to enter and to permit another customer to leave. The width of the sliding doors was sufficient to permit two people walking side by side or in opposite directions, comfortably to enter or leave at the same time. Mr Gonzalez was standing outside the store a metre or so back from the midpoint of the sliding doors. After they had opened the customer waiting inside the store walked out using (viewed from inside) the right side of the open doorway. At the same time Mr Battenby was standing just inside the store on the left side of the open doorway and facing into the store. No doubt having seen the door open, one of the male suspects ran from inside the store towards the exit in order to escape. Because of the presence of the other customer exiting on the right side and Mr Battenby standing just inside the store and on the left side, the suspect first had to run past Mr Battenby. Having done so and having turned slightly to the left so as to avoid the exiting customer, he collided with Mr Gonzalez, knocking him to the ground. Mr Gonzalez suffered injuries to his right shoulder and leg.

Mr Gonzalez' case as pleaded and conducted 44Mr Gonzalez sued for damages for those injuries. Lesandu admitted that it had the care and control of the premises and that the actions of the persons employed within the premises were to be treated in law as those of its servants or agents notwithstanding that they may have been employees of different franchisees occupying different areas of the store premises. 45Mr Gonzalez' case as pleaded did not formulate the scope of the duty of care for which he contended other than by reference to what were said to constitute the breaches of that duty. A number of particulars were pleaded and relied upon. In substance, three allegations of negligence were made. The first was that when he arrived at the entrance to the store Mr Gonzalez had been directed by Mr Battenby to stand and wait in front of the door and that it was negligent to have directed him to do so because standing there he was exposed to the risk that, if the door was opened, the suspects would seek to escape and in doing so might cause him injury. That first way in which Mr Gonzalez' case was argued can be put aside because the primary judge was not satisfied that Mr Battenby had by gesture or words encouraged or directed Mr Gonzalez to remain in any particular position outside the entrance to the door before it was opened. Mr Gonzalez does not seek to challenge that finding on appeal. 46The second allegation was that it was negligent to have opened the door without first having warned Mr Gonzalez of the risk that when the door was opened the suspects might seek to escape and in doing so cause him injury. It was not alleged that Lesandu was negligent in having locked the door in the first place. The third was that it was negligent for Lesandu not to have had in place a system for the apprehension, detention and restraint in the store of suspected criminals which did not expose members of the public to the risk of injury. Each of these allegations is directed to the conduct by Lesandu or its servants or agents of activities which concern the apprehension or detention in the store of persons suspected of criminal or other wrongdoing. 47Although Lesandu was sued as occupier, it was not alleged that Mr Gonzalez' injuries resulted from any defect or damage in the physical condition of the premises. His "complaint" (to adopt the language used by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 at [106] and by the Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [23], [25]) was that the immediate cause of his injury was conduct of the male suspect which Lesandu should have taken reasonable care to prevent by warning Mr Gonzalez before the door was unlocked or by directing him not to stand immediately outside the doorway or by having in place an unspecified system directed to preventing the suspect's conduct. 48It was accepted on behalf of Mr Gonzalez that under the common law there is no general duty to take reasonable care to prevent third parties from causing damage to a person or that person's property by their deliberate conduct. See Smith v Leurs (1945) 70 CLR 256 at 261-262 per Dixon J; Smith v Littlewoods Organisation Ltd [1987] AC 241 at 270 per Lord Goff of Chieveley; Modbury Triangle at [26] per Gleeson CJ; [117] per Hayne J; and [140] per Callinan J. Mr Gonzalez accepted that this principle applied to the conduct of the suspects in and when leaving the store premises. 49It followed that the duty of Lesandu as occupier to take reasonable care to avoid a foreseeable risk of injury to a person entering or on the store premises arising from the physical state or condition of those premises, was not engaged by Mr Gonzalez' case: cf Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479, Modbury Triangle at [17], [18], [102]. 50Rather, it was argued that the present case fell within the type of case reserved for consideration by Hayne J in Modbury Triangle at [117]: "Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. I would wish to reserve for consideration in a case in which there are raised the questions that are presented by a complaint of that last kind." (emphasis added) 51Specifically, it was argued that Lesandu was able to control the ability of members of the public to enter and leave the premises and that when the entrance door was locked to detain the two suspects it was reasonably foreseeable that if the door was opened they might seek to escape giving rise to "the risk that somebody would be knocked over, somebody might be assaulted deliberately, somebody might be verbally assaulted". It was submitted that the foreseeable risk of harm of the kind suffered by Mr Gonzalez was sufficient to require that Lesandu as occupier take reasonable care to prevent such harm.

The decision of the primary judge 52The primary judge concluded that Lesandu was negligent in not having a "security system" in place. To the extent that his Honour formulated the scope of the relevant duty of care, it was in the following terms (Judgment, p 24): "In my view, an organisation as large as Harvey Norman ought to have had in place a system to avoid potential injury to others if the store wished to attempt to detain suspects." 53His Honour's reasons for holding that there was a duty of care were (Judgment, p 24): "Taking into account the civil liability principles to which I have referred, I consider there was a special relationship between the defendant and the members of the public, including customers inside and outside the store. The decision to close the doors I have described as a bold one." 54His Honour did not explain what the "special relationship" between Lesandu and the "members of the public" was. In this context the expression "special relationship" has been used to describe particular circumstances in which one party has been held to have a duty to take reasonable care to control or prevent the action or conduct of a third party from causing harm to another. Relationships in which one party has been held to have owed such a duty to the other include those between employer and employee, school and pupil, bailor and bailee, gaoler and prisoner: Modbury Triangle at [26] and [111]. 55The primary judge held that the "adequate security system" which should have been in place "was to have security staff immediately available to speak to the alleged suspects. If doors were to be closed, all members of the staff should be aware of it and the security staff could deal with suspects until the arrival of police" (Judgment, p 25). This conclusion was arrived at in the absence of any consideration of the probability that harm of the relevant kind might occur, the likely seriousness of that harm and the burden of taking precautions to avoid the risk of its occurrence; and also in the absence of any evidence directed to a consideration of such matters. There was also no consideration of whether a reasonable person in Lesandu's position would have implemented a security system and, if so, as to what the characteristics of such a system would be or include: cf s 5B of the Civil Liability Act 2002 and the discussion in Adeels Palace at [28]-[35]. 56The primary judge also concluded, without further elaboration or explanation, that Lesandu "breached its duty to the plaintiff" and that there was "a causal link between the breach of duty and the injuries sustained" by Mr Gonzalez (Judgment, p 26). There was no consideration of whether the failure to have an "adequate security system" in place caused Mr Gonzalez' injuries. That question was governed by s 5D of the Act which requires that "factual causation" and "scope of liability" be addressed. The primary judge appears to have assumed that if "an adequate security system" was in place and the door was locked, the suspects would have been detained within the store by security staff until the arrival of police and so would not have been able to attempt an escape (Judgment, p 25). However, there was no consideration of what might have happened had such a system been in place. Any such consideration necessarily would have directed attention to the specific characteristics of such a system as would have been implemented by a reasonable person in Lesandu's position. For Mr Gonzalez to establish "factual causation" it was not sufficient that he prove that his injuries "might" not have occurred if such a system was in place. It was necessary, in a case such as the present, for him to prove that more probably than not he would not have been knocked over and injured if such a system was in place: again, see the discussion in Adeels Palace at [50]-[53].

Lesandu's argument on appeal 57The applicant identifies as the question involved in the application for leave whether the primary judge erred in holding it liable for breach of duty. It argues that the primary judge erred in holding that there was a duty of care by reason of there being a "special relationship" between the parties, that the finding of breach of duty was unsupported by evidence and that the primary judge failed properly to apply ss 5B and 5D of the Civil Liability Act 2002.

Disposition of the application for leave and appeal 58The primary judge's conclusion that there was a "special relationship" between Lesandu and a class of persons which included customers inside and outside the store did not identify any legally principled or justified basis for holding that Lesandu as occupier owed a duty to take reasonable care which was directed to preventing persons on the premises suspected of having acted or attempted to act unlawfully from causing injury to others by their conduct. That conclusion was not one that the present case involved a relationship which the law has already recognised as giving rise to such a duty: cf Modbury Triangle at [26], [111] and Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at [126]-[128]. 59Nor was it a conclusion based upon any analysis of the circumstances of the present case by reference to the presence or absence of features or factors making it appropriate to impute such a legal duty. A number of those factors are identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 esp at [102]-[106]. They include in a case concerning an occupier, the probability and foreseeability of harm of the relevant kind occurring, the likely seriousness of that harm, the occupier's capacity to control or prevent the conduct, the reliance of persons on the occupier's having done so, and whether there has been any assumption of responsibility to care for the security of any person or class of persons: see also the discussion of Gleeson CJ (with whom Gaudron J and Hayne J agreed) in Modbury Triangle at [18]-[25]. 60An example of such an analysis is found in Adeels Palace. As in this case, the question was as to the scope of the duty which an occupier owes. It was not controversial that the ordinary duty owed to a person lawfully on the occupied premises is to take reasonable care to avoid a foreseeable risk of injury arising from their physical state or condition: Adeels Palace at [23]; Australian Safeway Stores Pty Ltd v Zaluzna at 488; Modbury Triangle at [13]-[18]. 61However, as Ipp JA (Giles JA and McColl JA agreeing) pointed out in Graham v Hall [2006] 67 NSWLR 135 at [64] in a summary adopted with approval by Campbell JA (McColl JA and Sackville AJA agreeing) in Roads and Traffic Authority v Refrigerated Roadways, Modbury Triangle recognises that there are various circumstances where the duty may extend to requiring the taking of reasonable care to prevent harm arising from a third party's conduct. 62In relation to an occupier's duty of care, Gleeson CJ observed in Modbury Triangle at [29]: "The control and knowledge which form the basis of an occupier's liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger. ... The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable." 63In Adeels Palace (at [25]-[26]), several considerations were identified as justifying the conclusion that the occupier of the licensed premises owed a duty to take reasonable care which was directed to preventing injury to patrons from the violent or disorderly conduct of others. Those factors were that the subject matter of the complaint concerned the exercise of control over access to, and the presence of persons on, the premises; that they were licensed premises concerning which it "is and was well recognised that care must be taken" to prevent alcohol abuse otherwise likely to result in harm from violence and other anti-social behaviour; that the licensee had a statutory obligation under the Liquor Act 1982 (NSW) not to permit such conduct on the premises; and that the licensee also had a statutory power to prevent entry to the premises and to remove persons from the premises, if needs be by the exercise of reasonable force, to enable discharge of that duty. 64The decision in Adeels Palace confirms the relationship between the operator of licensed premises and its patrons as a further example of circumstances in which one party has a duty to take reasonable care directed to protecting the other from conduct of third parties. It was preceded by a number of decisions of intermediate appellate courts to similar effect. Those decisions are collected by Campbell JA in Roads and Traffic Authority v Refrigerated Roadways at [128]. That duty is in the conduct by that operator "of activities on the licensed premises, particularly with regard to allowing persons to enter or remain on those premises": Adeels Palace at [26]. 65The primary judge did not attempt to identify any features or factors which might justify the imposition of a similar duty in the present case. Mr Gonzalez, in his argument to the primary judge and to this Court, points to two matters which are said to require the imposition of a duty of care. The first is that his "complaint" is as to the occupier's failure to exercise reasonable care with regard its activities in dealing with persons on the premises suspected of criminal or other wrongdoing, and in particular their being permitted to leave the premises or being detained on the premises. The latter is said to be something in relation to which Lesandu was able to and did exercise control by locking the entrance door. The fact that the complaint concerns an activity involving the occupier's capacity to exercise control is said to set this case apart from the decision in Modbury Triangle for the same reasons as were said in Adeels Palace (at [23], [24]) to distinguish the complaint in that case. The second matter is that if Lesandu sought to detain suspected criminals in the premises by locking the entrance door, it was foreseeable that a person in Mr Gonzalez' position might suffer harm of the kind suffered if the door was opened and those detained sought to escape. 66It may be accepted as a general proposition that an occupier of retail premises may have a duty to take reasonable care in the conduct of activities on the premises which activities, if not undertaken with reasonable care, will cause harm of some kind to customers or their property. However, that is not the present case because whilst the circumstances in which the harm to Mr Gonzalez occurred included the action of Lesandu in locking the door, the harm itself was the direct consequence of the subsequent conduct of the fleeing suspect. 67The matters relied upon by Mr Gonzalez as justifying the imposition of a duty of care are the exercise by Lesandu of its capacity to control the continued presence of the suspects on its premises and the existence of a foreseeable risk of harm of the kind suffered by Mr Gonzalez. The circumstances resulting in that foreseeable risk of harm to Mr Gonzalez include the facts that the door had been locked and that at the time it was subsequently opened, he was standing in the way of the suspect fleeing the premises. It was not alleged that Lesandu's action in locking the door was negligent. 68Taken together these two matters do no more than assert the existence of a risk of harm of the kind suffered and identify one of the circumstances necessary to the existence of that risk. The fact that the risk of harm to Mr Gonzalez was foreseeable was not sufficient to give rise to a duty of care on the part of the occupier directed to preventing harm to Mr Gonzalez. In Modbury Triangle at [35] Gleeson CJ observed: "... The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. There was nothing special about the relationship between the appellant and the first respondent. ... Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable." See also at [100] per Hayne J. 69In Adeels Palace the need for the exercise of care in allowing persons to enter or remain on the licensed premises, which was directed to controlling the misuse or abuse of liquor so as to avoid violence and other anti-social behaviour likely to cause harm, was described as "well recognised". In addition, the licensee had a statutory obligation not to permit such conduct and the power to remove persons to assist in the performance of that obligation. 70The facts of the present case are quite different. There was evidence only of the isolated incident in which Mr Gonzalez was injured. The sliding door had been closed for a period of 50 seconds before it was opened by Mr Battenby. The time which elapsed from when Mr Gonzalez approached the door until he was knocked over was about 25 seconds. A number of circumstances conspired to produce that event. If Mr Battenby had not been standing where he was or if Mr Gonzalez had been standing further to the left or if there was no customer exiting on the right side of the doorway (in each case viewed from inside the store), it is most likely that the suspect could have exited, when he did, at speed and without colliding with Mr Gonzalez. That collision also would have been avoided if the suspect had chosen to take care not to collide with Mr Gonzalez as he left the store or if he had left the store a few seconds later. Someone more agile than Mr Gonzalez also may have been able to move out of the way of the man rushing towards him. 71There was no evidence of any other incidents, either in the store or in any other store operated by Lesandu or companies associated with it, where customers had been injured in similar circumstances by persons suspected of wrongdoing. Nor was there any evidence of any accepted practice within the retail industry, or any segment of that industry, in relation to the questioning, apprehension or detention of suspected wrongdoers within a store or of any precautions which are taken to secure the safety of staff and customers in the same or similar circumstances. 72Nor did the evidence suggest that before the door had been unlocked the suspects had acted in a way which made it highly likely and foreseeable or predictable that they would harm a customer in the event that they were given the opportunity to escape. To the contrary, the evidence was that to that point in time they had been co-operative. 73That being the position, the evidence did not justify a finding that there was a duty of care, either as found by the primary judge or as contended for by Mr Gonzalez. That conclusion is sufficient to dispose of the application for leave to appeal and the appeal. Because his Honour's finding of duty is not supportable and is in terms which might be relied upon as having application to any retail premises operated by an organisation "as large as Harvey Norman" (Judgment, p 24), it should be set aside. For that reason, leave to appeal should be granted and the other orders proposed by Basten JA made. 74It is not necessary to deal, other than briefly, with Lesandu's remaining arguments. In determining whether it breached its duty of care and whether the negligence found had caused the harm sustained, the primary judge was required to apply ss 5B and 5D of the Civil Liability Act 2002. It was not sufficient for him merely to say that he had "had regard" to those provisions. His Honour was required to undertake the analysis called for by them. He did not do so. Had he attempted to do so, it would have become apparent that his formulations of the "precautions" which Lesandu should have taken were insufficient principally because the evidence before him did not justify his findings as to the existence and scope of the duty of care and whether it was breached. 75This is also apparent from a consideration of the way in which the primary judge dealt with the question of causation. He concluded that there was a causal link between the breach of duty he had found and Mr Gonzalez' injuries. Although he had earlier stated that he had regard to the provisions of s 5D, nowhere in the reasons is there any consideration of the elements which he was required by s 5D(1) to address. The first of those elements, factual causation, is determined by the "but for" test: Adeels Palace at [45]; Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 at [18]. It requires an inquiry as to whether, but for the negligent act or omission, the harm would have occurred. In this case it was necessary for the primary judge to make findings as to what an adequate "security system" would have entailed and then to consider whether more probably than not Mr Gonzalez would have been injured if such a system was in place. The primary judge did not undertake that analysis. 76It follows in my view that the primary judge also erred in failing to apply ss 5B and 5D of the Civil Liability Act and in his conclusions as to breach of duty and causation. 77DAVIES J: I agree with Basten JA and Meagher JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2013