MODBURY TRIANGLE SHOPPING CENTRE v ANZIL & ANZIL No. SCGRG-99-152 Judgment No. S335 [1999] SASC 335

MULLIGHAN J The appellant is the proprietor of the Modbury Triangle Shopping Centre. The respondents are husband and wife. The first respondent, the husband, was, at all material times, a manager of the Focus Video shop ("the video shop") at the Modbury Triangle Shopping Centre. His employer, Focus Video Pty Ltd, was the proprietor of the video shop and a tenant of the appellant.

At about 10.30 pm on 18th July 1993 the first respondent was attacked and injured by three youths after he had left the video shop and was walking to his motor car which was parked nearby. He brought an action in negligence against the appellant for the damage for the injuries sustained and the loss suffered by him. Liability was in issue. The quantum of his damages was agreed at $205,000. The trial proceeded on the issue of liability. The learned trial Judge found in favour of the first respondent and entered judgment accordingly. It was agreed at the trial that should the first respondent succeed, damages due to the second respondent would be agreed. Hereafter I shall refer to the first respondent as the respondent.

The appellant appeals against that judgment on various grounds which are mentioned shortly. First, it is convenient to mention the circumstances of the attack.

The Modbury Triangle Shopping Centre is a large shopping centre with many shops, a restaurant, banks and other commercial premises. There is a large car park which is part of the area common to all tenants and is owned and occupied by the appellant. The boundary of the Centre is Smart Road, North East Road and Reservoir Road at Modbury. Focus Video Pty Ltd had been a tenant of the appellant pursuant to a memorandum of lease dated 1st January 1988. The video shop is on the north-east corner of the building of the Centre and adjacent to the car park. There is a verandah between the shop and the car park. The entry to the shop is on the northern side out onto the verandah and the car park.

There was fluorescent lighting under the roof of the verandah which the learned trial Judge found lit the area under the verandah, but had little effect in illuminating the car park. There were four large lighting towers in the car park which adequately lit the car park when the lights were on. The car park is a large open area with trees and shrubs, however the video shop can be seen from Main North East Road which is about 70 metres away. When the tower lights are off, the car park is very dark at night, including the area near the video shop, although there is a small amount of light from the verandah lights.

The respondent was badly injured in the attack and his memory of what happened is severely impaired for that reason. However, there was little dispute about what happened and the learned trial Judge made the following findings. The respondent had been a manager at the video shop for about 12 months. He regularly worked a shift three nights a week which commenced at 1.00 pm and concluded at 10.00 pm. On the night he was attacked, he closed the shop at about 10.00 pm and after cleaning up, counting the day's takings, locking up and turning on the alarm, he left the shop at about 10.15 pm. There were no other shops at the Centre open at the time. The only other shop open during that night was a chemist shop which had closed at 8.00 pm. He walked to his motor vehicle which was about 10 metres away in the car park in a space which was the closest to the shop. He then saw three youths nearby, one of whom was carrying a baseball bat. He was attacked and hit on the head a number of times with the baseball bat. There were no lights on in the car park and it was very dark. He staggered to a service station and was taken to hospital with a severe head injury. Apparently robbery was the motive for the attack.

The car park lights were not usually left on at night. Whenever the respondent left the shop at night, he looked out to see if anyone was about and if so he did not leave the shop until they had gone. He adopted this practice on the night he was attacked but did not see anyone until he was walking towards his motor vehicle.

The manager of the shop on duty was invariably alone at closing time. At 10.00 pm no other shops at the Centre were ever open. There are automatic teller machines ("ATM's") around the north-east corner of the Centre near the video shop. It was outside the building underneath the verandah and, at night, was lit by verandah lights. Access to it was through the same car park. The video shop, when open at night, was brightly lit inside enabling anyone outside to have a clear view looking in.

The learned trial Judge accepted that until about a year before the attack, the lights in the car park would be left on until about 11.00 pm. That practice ceased and those lights were turned off well before closing time of the video shop. The co-manager of that shop gave evidence which was accepted by the learned Trial Judge. She said that she was concerned about the lights in the car park being turned off before the closing time of the shop and she spoke to a woman at the management of the Centre on a number of occasions about the matter. At Christmas 1992 she spoke to this woman with the result that the lights in the car park were left on until about 10.15 pm to 10.20 pm. However, that practice continued for only a few weeks over the holiday period. Then, the lights were not turned on at night or, if so, only until 10.00 pm. She made more complaints to the same woman on a regular basis about the lights. After the occasion when the respondent was attacked, the lights in the car park stayed on until about 10.45 pm for a time.

The lights in the car park were operated by timing devices which could be altered quite simply. The lights in each tower could be timed to be operated separately. The nearest tower to the video shop was a relatively short distance away and when the lights were on, the car park near the shop and where the respondent parked his motor vehicle and that corner of the Centre were well lit affording no place for would-be attackers to hide.

At the trial the respondent lead evidence from a criminologist without objection. The effect of his evidence was that good lighting discourages criminals from committing offences which they might well commit in the dark where there is little chance of detection or identification. The learned Trial Judge said at p4:

"I don't think I have to delve into statistics to come to the common sense conclusion that the victim of an attack such as this is far more vulnerable in a dark environment than a well lit one. It is also obvious that an attack such as this where a baseball bat is wielded is far more likely to happen in a dark place than a well lit one."

The learned Trial Judge held that the appellant owed a duty of care to the respondent as he was an employee of one of its tenants relying upon Parker v South Australian Housing Trust (1986) 41 SASR 493 and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313. He found that proximity was established between the parties and referred to the observations of Deane J in The Council of the Shire of Sutherland v Heyman & Anor [1985] HCA 41; (1985) 157 CLR 424 at p497 and Swan (By his Next Friend) v State of South Australia [1994] SASC 5079; (1994) 62 SASR 532. The learned trial Judge then went on to say:

"Applying those principles to the facts of the present case I find that proximity has been established because of the following factors:- 1. The lease itself (part of Exhibit P5) establishes an obligation upon the defendant to provide lighting in the car park. In those circumstances it is fanciful to suggest that if the car park lighting is not on that there would be an obligation upon any of the tenants to provide substitute lighting in those common areas. 2 The defendant, through its Managers, was continually warned about the dangers of turning off the car park lighting before the video shop closed at night. 3 At a practical level it was not difficult to provide adequate security for the employees of the video store. The defendant merely had to allow the lights to remain on until about 10.20 p.m. on each night. I reject the defendant's argument that because the acts of third parties were involved there can be no duty of care. It has clearly been established by a number of authorities cited to me (although in different circumstances) that there can be a duty of care to prevent damage or injury from the acts of third parties. I also reject the argument that if there is a duty of care by the defendant to the tenants it is for the total security of the tenants and customers and this would entail all of the paraphernalia involving total security. It is argued that such a duty would be far too onerous. In my view the duty of care need not extend that far and I find that there is a duty of care for the security of the tenants and their customers merely concerning security as affected by the lighting of the common area."

The learned Trial Judge then concluded that the appellant was in breach of that duty of care. He said:

"I find that to discharge the duty of care the defendant merely had to keep the lights of the common area on until all of the tenants had finished work in the evenings. To do so was not difficult and in fact on the evidence I have heard was done for a period of time after the incident. I have found that it was clearly not done for a considerable period of time leading up to and including the night of the incident."

He found that the appellant was negligent in not keeping the lights on at the relevant times and that such negligence was a clear cause of the injuries to the respondent even though they were inflicted by the three youths. He said:

"One of the very purposes of the lights being on (as the defendant was warned) was to protect employees and customers against criminal activity. For the reasons given in my finding of fact there is a clear connection between the safeguard of the lighting of the common area being denied to the plaintiff and the attack."

The grounds of appeal raise, in effect, two matters; that the appellant did not owe a duty of care to the respondent and that if there was such a duty of care and the appellant was in breach of that duty, there was no causal link between the breach of duty and the injury sustained and loss suffered by the respondent.

I consider first the contention that there was no duty of care.

The appellant challenges the conclusion of the learned Trial Judge that the lease provides an obligation on the appellant to provide lighting in the car park. Clause 5 of the lease relates to the common areas and their use. Clause 5.1 provides, inter alia, that the appellant, as the Lessor:

"... may, or may cause an agent to, operate, manage, equip, police, light, repair and maintain the Common Areas in such manner as the Lessor shall in its sole discretion determine. The Lessor reserves the right from time to time to discontinue or to change the size, location and nature of any of the Common Areas to make repairs or changes or to discourage non-customer parking or may close the same permanently and may do such other acts in and to the Common Areas as in its judgment may seem to it to be desirable."

It is submitted on behalf of the appellant that this provision in the lease does not impose an obligation but a discretion to provide the car park and to install and use lights.

Clause 12.4.1 of the lease provides that the lessor shall not be required to supply any service to the Centre except as expressly stipulated in the lease. Clause 12.4.3 provides that the provision of management and caretaking and/or security services is at the sole discretion of the lessor.

Whilst the appellant accepts that the respondent is not to be held to the terms of the lease, it contends that these provisions are part of the relationship between the landlord and the tenant which should be taken into account in determining whether or not the duty of care ought to be imposed in the circumstances. It is argued that the learned Trial Judge erred in his conclusion that the lease imposed an obligation upon the appellant, as the lessor, to provide lighting in the car park. Whilst it is conceded that the appellant, as the landlord, was under a duty to provide sufficient lighting to ensure that persons attending at the Centre at night, including at the ATMs and the video shop, were not injured through tripping over or otherwise coming into contact with inadequately-lit obstacles, the duty did not extend to taking precautions to avoid the risk of attack by a third party as occurred in the present case.

In a sense, the contention about the lease is correct, in that it did not impose upon the appellant an obligation to provide lighting in the car park but that is not a matter which denies a duty of care owed by the appellant to the respondent. Lights were installed and operated for the purpose of the safety of persons using the Centre. The appellant was well aware that the public went to the ATMs and the video shop at night. The appellant chose not to operate the lights at times which compromised the safety of such persons, including the respondent and did so despite warnings.

It is contended by the appellant that the second reason for imposing a duty of care by the learned Trial Judge, namely the previous warnings about the dangers of turning off the car park lighting before the Focus Video shop closed, does not go to the existence of a duty of care, but only to the foreseeability of potential risk. It is submitted that there need to be other factors in any relationship to give rise to a duty of care, such as whether there has been an assumption of responsibility for the welfare or safety of the persons using the Centre. The omission to respond to the so-called warnings is said to be contrary to the assumption of responsibility by the appellant and therefore the existence of a duty of care.

In my view, the warnings are relevant to establish reasonable foreseeability. The failure to heed the warnings does not indicate the denial of an assumption of responsibility. Once it is accepted that the proximity between the parties was established, and that the risk was reasonably foreseeable and easily within the power of the appellant to remove, or substantially minimise, not only is a duty of care established, but also that the appellant was in breach of that duty given the circumstances of the attack.

The third matter relied upon by the learned Trial Judge, the ease with which the lights could be left on, is said to be relevant only as to the standard of care imposed if a duty of care exists. It does not establish a duty of care. It is suggested that the learned Trial Judge has reasoned that because it is easy to avoid the problem, there must have been a duty to avoid the problem.

It is unnecessary for present purposes to examine that question closely because the circumstances clearly establish the existence of a duty of care given the cases to which reference has been made. In some circumstances, difficulty in removing risk may have policy implications relevant to whether a duty of care exists, but these matters have no significance in the present circumstances.

Furthermore, it is submitted on behalf of the appellant that there was nothing to stop the respondent, or his employer, from undertaking appropriate security at the Centre to prevent, or minimise the risk of, this type of incident occurring. They could have provided security guards or any other suitable measures which, it is said, is an indicator that no duty of care existed. Whilst that may be so, it does not deny the existence of a duty of care owed by the appellant to the respondent.

Mr Nicholson, for the appellant, presented a detailed and well-researched argument in support of the contention that, in the circumstances, there was no duty of care owed by the appellant to the respondent. I do not think it is necessary to cover all of the ground of that argument because it cannot be doubted that a landlord does owe a duty of care to a tenant and, at least, to employees of the tenant whom the landlord knows use the demised premises: see Parker v South Australian Housing Trust and North Sandblasting, the cases relied upon by the learned Trial Judge. In the present case the question is not whether a duty of care exists. Plainly it does. The requirement of proximity is satisfied as is reasonable foreseeability of harm to the respondent and other users of the Centre. The issue is the scope of the duty.

In Parker v South Australian Housing Trust, the Full Court declined to follow the decision of the House of Lords in Cavalier v Pope [1906] UKHL 1; [1906] AC 428 and held that there is no rule of law precluding the existence of a duty of care in a lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty: see King CJ at p517. He went on to say:

"The extent of the duty owed by the lessor would no doubt depend upon the criteria determining the existence of the duty. If knowledge is necessary for the existence of the duty, the duty would be to take reasonable measures to remove the known danger or known potential danger. If knowledge is not necessary, the duty would extend to some degree of inspection or inquiry to ascertain whether the condition of the premises is free of danger."

As has been seen, the appellant was well aware of the potential danger to persons accessing the ATMs and the video shop at night in the dark, and turning on the lights was obviously a reasonable and simple measure to remove that potential danger.

In Northern Sandblasting, Brennan CJ, at p340, held that a landlord is under a duty of care in respect of demised premises requiring the same standard of care as is required by occupiers towards those who enter occupied premises by consent and for reward. That duty, he said, is to see that the premises are safe for (the particular use) "as reasonable care and skill on the part of anyone could make them excluding defects which could not have been discovered by reasonable care or skill ...". Dawson J, at p343, described the duty as "that which arises under the ordinary principles of the law of negligence, namely a duty to take reasonable care to avoid foreseeable risk of injury to the respondent". He acknowledged that the nature and extent of the duty in the particular instance depends upon the circumstances of the case: see also Gaudron J at pp358-359, McHugh J at pp365-366 and Kirby J at p392.

Both of those cases were concerned with residential tenancies where control of the demised premises, and certain responsibilities for them, passed from landlord to tenant upon the tenant occupying the premises which is not so in the present case. The control and responsibility for the car park, as a common area, remained with the appellant at all times. In my view, it is not a matter of whether the appellant positively assumed responsibility. It always had responsibility and had a duty to take reasonable care to avoid foreseeable risk to persons using the Centre, including those who did so at night to access the automatic teller machines or the Focus Video shop.

There can be no question that there was a foreseeable risk of harm to persons using the car park at night if there was inadequate lighting. It was known that persons went to the Centre at night and used the car park to access the ATMs and the video shop. It was a simple measure to avoid that risk by changing a timing device so that the lights on the nearest tower were on at appropriate times.

Having considered those matters, the extent of the duty of care was to ensure that sufficient lights were on when workers and customers were at the Centre.

It was submitted by the appellant that there is no duty to control or protect against the acts of third parties: see Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256 at p262. In particular, it is submitted that there is no duty to prevent or otherwise protect against criminal conduct of third parties unless there is the capacity to control the actions of the third parties or there is some feature of the relationship sufficient to give rise to relevant proximity. It is acknowledged in Smith v Leurs that special relations may result in a duty of this nature: see Dixon J at p262 and also WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 per Mason P at p358. These cases, and others cited to us, were concerned with whether the particular circumstances established the existence of a duty of care, whereas in the present case such a duty exists. Once such a duty is found to exist, having satisfied the requirements of proximity, reasonable foreseeability and the absence of policy considerations negating a duty of care, liability may well be imposed for the criminal acts of third parties. Examples may be found in Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070, Dorset Yacht Co Ltd v Home Office [1970] UKHL 2; [1970] AC 1004, Fraser v State Transport Authority (1985) 39 SASR 57, Allison v Rank City Wall Canada Ltd (1994) 6 DLR (4th) 144 and Public Transport Corporation v Sartori [1997] 1 VR 168. The lastmentioned case involved provisions of legislation not dissimilar to the common law of negligence.

In my view, the learned Judge was correct in his conclusion that in the circumstances the appellant owed to the respondent a duty of care and that it was in breach of that duty.

38. The key findings by the learned Trial Judge are that the likelihood of the attack occurring was enhanced by the fact that the car park was in darkness because of what the learned Judge described as the obvious fact that the attackers could act under cover of darkness with little chance of being identified and also because the respondent could not see his attackers until it was too late. He went on to find that the appellant was negligent in not keeping the lights on and that such negligence "was a clear cause of the injuries to the [respondent] despite the intervening behaviour of the three assailants". I have mentioned the observations of the learned Trial Judge as to one of the purposes of the lights being for protection of employees and customers and that there was a causal connection between the lack of lighting and the attack.

39. It is contended for the appellant that those findings should not have been made in the circumstances, and the fact that statistically more incidents of this nature will occur in dark places than in well lit locations does not address the circumstances of the attack. Mr Nicholson submitted that the findings of the learned Judge should be rejected and that the following findings should have been made. The car park was isolated and there were no persons in the vicinity at the time of the attack. It is probable that no person would have seen the attack even if the lights were on. If anyone did see the attack, there would have been no opportunity to intervene or assist the respondent in any way. There was ample opportunity for the assailants to perpetrate the assault and make their escape whether or not lights in the car park were on. There were various escape routes and minimal chance of being caught. There were areas in the car park close to the video shop in which the assailants could have hidden from the respondent whether or not the lights in the car park were on. The assault was more likely than not premeditated.

40. In my view, the conclusions reached by the learned Trial Judge were open on the evidence and were inevitable. The failure to keep the lights on created the very situation in which the attack was likely to occur. The relevant part of the car park was not isolated. It was close to places, namely the video shop and the ATMs, where persons with money were likely to visit at night. It was therefore likely to attract intended thieves. The ability for attackers to hide in the dark was greatly enhanced by the absence of light and afforded the opportunity for crime of this nature. Darkness enhanced the potential risk of robbery. The point is not that the location was isolated, but that without adequate lighting visitors were much more likely to be attacked.

41. I do not think the other contentions of the appellant assist because they do not acknowledge the fundamental significance of the darkness. If the lights were on, the attack would have been much less likely. Darkness was the ally of the attackers and without it, the attack would have been unlikely. If there was no attack, there would be no need for anyone to escape. There is no reason to suppose that the attack would have taken place even if the lights were on, if for no other reason, because the respondent would probably have seen the attacker and not left the video store.

42. In March v E & MH Stramare Pty Ltd & Anor [1991] HCA 12; (1991) 171 CLR 506, it was accepted that causation is a question of fact. It is sufficient if the negligence of the appellant is a cause of the respondent's loss. As to the conduct of a third party (the attackers in the present case), Mason CJ, in a passage cited by the learned Judge, said at pp517-518:

"The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content. It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action: see Chapman v Hearse (1961) 106 CLR at p122; M'Kew [1970] SC(HL) at p25; Caterson v Commissioner of Railways [1973] HCA 12; (1973) 128 CLR 99 at p110. But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence. In Dorset Yacht [1970] AC at p1030, Lord Reid observed: 'But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the "very kind of thing" which is likely to happen as a result of the wrongful or careless act of the defendant.' Much the same approach was adopted by this Court in Caterson where Gibbs J (with whom Barwick CJ, Menzies and Stephen JJ agreed) pointed out that, if the plaintiff's action in jumping from the train was, in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant's negligence and was not unreasonable, the jury was entitled to find that the plaintiff's injuries were caused by the defendant's negligence." ...... " As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the 'but for' test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."

In my view, the learned Judge was correct in his conclusion. The negligence of the appellant was causative of the respondent's injury and loss.

44. NYLAND J I agree that the appeal should be dismissed for the reasons expressed by Mullighan J.