Pacific Access Pty Limited v Davies

PACIFIC ACCESS PTY LIMITED v DAVIES The plaintiff was employed by the defendant as a sales consultant. When visiting a client's premises in Port Moresby the plaintiff was attacked by a thief. Adams J found the defendant liable to the plaintiff for injuries caused by the attack on the basis that the defendant's warnings to her about conditions in Port Moresby and how to deal with them were inadequate. The defendant appealed, submitting that it had not been in breach of its duty of care. The plaintiff by notice of contention argued that she had been entitled to succeed on a further particular of negligence not relied on by the judge. Held: Powell JA dissenting, that the trial judge had not been in error in finding duty and breach; the appeal should be dismissed; and that the plaintiff should also have succeeded on the ground relied on in her notice of contention. ORDERS Appeal dismissed with costs.

PACIFIC ACCESS PTY LIMITED v DAVIES PRIESTLEY JA: Introduction 1 On 12 July 1999 Adams J gave judgment for Mrs Lois Davies (the plaintiff) against the defendant Pacific Access Pty Limited (Pacific Access), for $571,362 and costs. Pacific Access has appealed. 2 The plaintiff's claim against Pacific Access was for damages for negligence. Her case was as follows. 3 The plaintiff was employed by Pacific Access as a sales consultant. Head office was in Sydney. The plaintiff visited clients at their offices. In 1985 she went as a member of a group of Pacific Access consultants to Port Moresby in Papua New Guinea to visit clients there. She went again in 1991, again as a member of a group. There were about eleven other consultants. They individually visited clients in their offices. On this trip she was attacked by a young man when she was about to enter a client's office. The attack was frightening but brief, and did not do much immediate physical damage. However, over a longer term, the assault had serious physical consequences for the plaintiff. It also caused her to develop reactive depression. 4 In her statement of claim the plaintiff gave the following particulars of Pacific Access's alleged negligence: " (a) Failing to provide and maintain for the Plaintiff a safe system of work. (b) Requiring the Plaintiff to work pursuant to a system of work in an environment which was unsafe. (c) Requiring the Plaintiff to work in an environment in which there was not sufficient staff to ensure her safety. (d) Failing to provide any or any adequate security for the Plaintiff. (e) Failing to provide sufficient workers to assist the Plaintiff. (f) Failing to warn the Plaintiff of the dangers of her employment (g) Failing to instruct the Plaintiff on how to perform her work safely. (h) Exposing the Plaintiff to unnecessary risk of further injury, taking into account her pre-existing physical condition of which the Defendant was aware. " 5 The issue of liability was heard and decided by Adams J before he heard and decided the issue of damages. Although Pacific Access' notice of appeal was directed against Adams J's decision both on liability and the amount of damages, at the commencement of the oral hearing of the appeal its counsel told the court it was pursuing the appeal only as to liability. Pacific Access accepted that if it failed on its liability appeal the judgment amount would stand as assessed by Adams J. 6 Evidence in the plaintiff's case on liability was given by her and by two witnesses who gave expert evidence, one about the state of affairs in Port Moresby in 1991 and both about what, in their view, were reasonable and necessary ways for people to protect themselves against assault and robbery while moving around Port Moresby at that time. In the case for Pacific Access nine witnesses were called. Some gave evidence of the state of affairs in and around the office outside which the plaintiff was attacked. Others gave evidence of what precautions it was necessary to take in Port Moresby at the time; others gave evidence of warnings that had been given by senior staff of Pacific Access to its consultants moving about in Port Moresby.

Trial judge's reasons . 7 After considering the evidence, Adams J, in his reasons on the liability issue, expressed the opinion that Port Moresby was dangerous to a degree considerably greater than that which might have been found in the places such as Sydney or Brisbane from which Pacific Access's consultants came. He also found that the area of Port Moresby where the assault took place, although not one of the areas which it was common ground between the parties were particularly notorious for their dangerousness, was not a safe one. He referred to the evidence of Mr Lohberger, called in Pacific Access's case, the businessman whose office the plaintiff had nearly reached when she was attacked, who said that he had been operating there since 1960 and knew of only one case of a personal attack on someone either on his premises or near them. However, Adams J noted also that Mr Lohberger had said there had been a number of petty thefts from vehicles parked in his premises about a year before the plaintiff was assaulted which he had thought were done by young men from a nearby squatters' settlement. Adams J thought that this showed there was a real risk in and around Mr Lohberger's premises. 8 Photographs of Mr Lohberger's premises were in evidence. They showed his office building abutting the street and alongside the building a width of unbuilt-on ground leading to a yard behind the building. This whole area was called a "compound". It was fenced with cyclone wire and had a gate across the entrance from the street. This gate was kept open during business hours. A security officer was employed during business hours in the parking area, to deter thefts of the kind already mentioned. 9 The plaintiff drove to Mr Lohberger's premises by herself. When she reached them she drove into the open space beside his office, stopping just short of his office door. A number of the photographs give some idea of how far this was from the street, but the perspective in the photographs makes it difficult to be precise about that distance. I estimate that there would have been about a car's length from the back of the plaintiff's car to the street alignment. The security officer was not in the parking area when the plaintiff got out of the car. She put her handbag over her shoulder as she got out. Then she went to get her brief case out of the back of the car. As she did this a young man grabbed her handbag. He must have come from the street. She resisted. She was forced to her knees and was punched. The man took the handbag and ran away. He was caught almost straightaway. It later turned out that the assault led to the serious damage to the plaintiff earlier mentioned. 10 After describing the assault, Adams J next discussed the expert evidence that had been given about the steps that should be taken to safeguard expatriate people travelling in Papua New Guinea. The first of the witnesses in the plaintiff's case was Mr R.A. Draper. Adams J noted that his expertise had not been disputed. The level of his expertise and his reputation is no doubt demonstrated by the fact that in 1996 he was engaged to conduct a comprehensive security review, threat assessment and risk analysis for the National Parliament Buildings of Papua New Guinea, in Port Moresby. He said he had gone to Papua New Guinea many times since 1995 but had not been there before then. In a report he had prepared for the case at the request of the plaintiff's solicitors and in his oral evidence, Mr Draper stated a number of instructions which in his opinion should have been given to Pacific Access's employees. Adams J thought it necessary to refer only to one of the points made by Mr Draper, namely that carrying bags or briefcases on the street should be avoided unless it was absolutely necessary. 11 As Pacific Access's principal submissions in the appeal were based upon a close reading of some parts of the trial judge's reasons leading to his conclusions which were said to show error in various respects, I set out the more important paragraphs in this regard: " [Mr Draper's] report highlights the kind of analytical and objective approach to questions of risk management for personal security where there is an appreciable risk that because of their working requirements employees might be subject to danger. I infer from the evidence called by the defendant that no such expertise was called upon by it to evaluate either the risks or the mode of dealing with them in respect of employees' safety whilst in Papua New Guinea and in particular Port Moresby. Having regard to its own attempts to deal with this risk I am of the view that it should have realised that mere common sense, however reinforced by experience, was not a reliable measure either of the risk or of the appropriate safeguards. (Red Appeal Book (RAB) 16) ... In the circumstances of this case, when visiting business premises such as Mr Lohberger's, common sense would have suggested that ascertaining that some person such as a security guard or other employee was present before alighting would have been wise. The plaintiff was not given advice to this effect. The advice given to the plaintiff and others in her position in relation to handbags was that they should be worn over the shoulder so that it would be difficult to remove them, and hence, to deter any would-be thief from the attempt to do so, unless of course that thief was prepared to be violent for the purpose of securing the item. The chances of violence in these circumstances being applied to a woman in the plaintiff's situation was seriously underestimated. Had the advice of a person such as Mr Draper been obtained and had that particular advice about not carrying bags been given, and I think it was inevitable that it would have been, this incident would almost certainly have not arisen. I do not consider that the risk was so slight that it should have been ignored, nor was it so obvious to the uninstructed that it was unnecessary. It strikes me as significant that the point that a bag might operate as bait was plainly not perceived by those responsible for security in the employment of the defendant. To carry the metaphor further, it mattered not whether the bait was a worm or merely a fly; that it might attract the attack of the fish was the real risk. And that was a risk - amongst others - that in the very dangerous circumstances in Port Moresby the defendant had a duty of care to the plaintiff to avoid as far as was reasonably possible. (RAB 16-17) ... ... I therefore draw the following conclusions; firstly, in the circumstances it was reasonably foreseeable that injury of the kind occasioned to the plaintiff might occur in the circumstances to which she was brought by virtue of her employment with the defendant; secondly, that the risk of personal injury by an attack of this kind was so substantial that the defendant had a duty to evaluate its extent and likelihood as well as appropriate modes of protection or avoidance of or by its employees by obtaining advice from persons skilled and experienced in the relevant area of risk evaluation; thirdly, that at all events the advice given to the plaintiff was inadequate in that it failed to cover the possibility of an attack of the kind which occurred here in premises of the sort to which she was sent, in the course of her employment; fourthly, that because the defendant failed in fulfilment of its duty of care towards the plaintiff she did not take appropriate steps to secure her safety and minimise the risk, and lastly, because of this omission she suffered the injuries which are the subject of her claim. (RAB 18)" 12 His Honour then stated his opinion that Pacific Access was liable to the plaintiff and that he did not accept its contentions that she had voluntarily assumed the risk or had been guilty of contributory negligence.

Appellant's arguments on appeal . 13 The appellant's submissions were of three kinds: (i) head (a), that the trial judge had made a number of wrong findings of fact; (ii) head (b), that, because of the way issues at the trial were fought, it was not open to the trial judge to make and act upon some of his findings of fact, even if there was evidence upon which those findings would otherwise have been open; and, (iii) head (c), that in any event, on any view of the facts, the trial judge should not have found that the appellant was in breach of duty to the plaintiff. 14 (i) Head (a): Challenged findings of fact. It was submitted that the only conclusion available to the trial judge concerning the area in which the plaintiff was attacked was that it was relatively low risk and that he should not have acted on the basis that "Port Moresby was very dangerous". 15 In my view the trial judge had evidence before him justifying the view upon which he acted about the dangerousness of Port Moresby, including the area in which the plaintiff was attacked. Specific evidence upon which the fact could be found in regard to Port Moresby at the time of the attack was given by Mr Ellis and Mr Redmond (an experienced person called in the appellant's case) and was contained in considerable detail in Exhibit I, a document entitled "ANZ Banking Group (PNG) Ltd Security Review", compiled by Mr John Frost, Manager Business Unit Liaison for ANZ Group Security, dated May 1990. 16 The next finding attacked was that the "risk was so substantial the defendant had a duty to evaluate it by advice from skilled persons ...". In my opinion there was some evidence upon which the trial judge could base this conclusion. However, this is one of the matters in respect of which the appellant submitted that it was not open to the trial judge to base any conclusions upon the evidence available on the point, because of the way the case had been conducted at the trial. I will deal with it a little more fully under head (b). 17 The position is the same in regard to the appellant's criticism of the trial judge's statement that professional security expertise was not called upon by it to evaluate either the risks or the mode of dealing with them, that is, there was some evidence supporting the statement, but it was contended that even so, the trial judge, because of the way the trial was conducted could not properly take it into account. I will deal with that aspect under head (b). 18 The next finding challenged was that if Mr Draper's advice that bags or briefcases should not be carried on the street unless absolutely necessary had been given the attack would not have arisen. It was submitted that this advice applied only to walking on the street, and was therefore not applicable to the place, off the street, where the plaintiff was assaulted. In view of the exact circumstances of the assault, which took place at the distance from the street shown in the photographs, by the young man who rushed in from the street after seeing the plaintiff from the street, it seems to me that this submission takes too literal a view of the warning that Mr Draper thought should have been given. The nature of the advice seems to me to make it clear that it applies not only to the street itself but to places so close to the street as to present the same temptation to someone preying on women carrying handbags as a woman carrying a handbag on the street itself. 19 The other submission made about this finding was that this particular of negligence (the failure to warn about carrying a bag in the street unless absolutely necessary) was not raised in evidence with any witness and was not the plaintiff's case, and therefore not open to the trial judge to act upon. I will deal with this contention under head (b). 20 The next finding attacked was that the advice given to the plaintiff was that her handbag should be worn over the shoulder and the fact that a bag might operate as bait was plainly not perceived by those responsible for security in the employment of the appellant. It was submitted that it was not the plaintiff's case that she had been given bad advice and that it was not put to the appellant's chief witness in this respect that the suggested instruction might expose employees to danger. It was said that in any event the proposition was self evident. The main complaint here seems to be not so much that the trial judge found the fact, since it was said that it was in any event self evident, but that the appellant's witnesses had not had an opportunity of dealing with the specific suggestion that the relevant advice had not been given and ought to have been given. I will again deal with this under head (b). 21 The next attack in its first appearance in the written submissions (at par 19(iv) was upon the finding, "... because the defendant failed in fulfilment of its duty of care towards the plaintiff she did not take appropriate steps to secure her safety and minimise the risk ...". However in its next form (at pars 31-34) it was directed against a finding quoted, somewhat inexactly, as "The Respondent did not take steps to secure her safety because the appellant failed in its duty to advise her of the possibility of this type of attack". and it was then submitted that such a possibility required no warning. However, as appears in the last passage set out in par 11 above, the exact concluding words in the relevant sentence were "... the possibility of an attack of the kind which occurred here in premises of the sort to which she was sent, in the course of her employment;". When what his Honour was actually saying is considered, the criticism loses some of its point. The main point being made seems to me to be more appropriately dealt with under head (c), and I will deal with it there. 22 The last finding in the list of findings specifically attacked by the appellant was the second passage set out in par 11 above (commencing "In the circumstances of this case ... "). First, it was said that the proposition that the appellant should have given but did not give advice to the mentioned effect was not raised at the trial. I will consider this under head (b). A further argument was raised to the effect that the not giving of such advice did in any event not amount to a breach of duty of care, and further again, that the kind of advice contemplated would in any event not have been appropriate. I will consider this under head (c). 23 My conclusion under this head of the argument is that none of the attacks on the facts found by the trial judge succeeds. 24 (ii) Head (b): Facts argued to be unavailable to the trial judge in light of the way the case before him was conducted. On my understanding of Pacific Access's written and oral submissions, the significant matters which it was said were not open to the judge to use, because of the way the trial was conducted before him, in reaching his conclusion were, (i) that Pacific Access had been under a duty to obtain expert advice about the safeguards that should be used in regard to employees visiting Port Moresby, (ii) that Pacific Access had not called upon professional security expertise, (iii) that there should have been a warning to such employees that they should not carry a bag in the street unless absolutely necessary, (iv) that the plaintiff should not have been advised to carry her bag with its strap over her head and shoulder and (v) that she should have been warned not to get out of her car unless a security guard were present. 25 The submission in regard to each of these matters was that none of them had been put as part of the plaintiff's case at the trial which had been conducted in such a way that the defendant had no fair notice that the matters were available to be relied on by the trial judge in finding for the plaintiff on the question of liability. 26 These submissions make it necessary to consider the course of the trial in a little detail. 27 The hearing began on 25 May 1999 and continued on 26, 27 and 28 May 1999. The transcript for 28 May 1999 records, in a summary way, submissions made at the close of the evidence on that day, from which it appears that the defendant then sought an adjournment to obtain further evidence on a psychiatric issue. The application was opposed. After argument, Adams J granted the adjournment, saying he did so "with some disquiet" and on the basis that he would hear argument that day on the issue of liability for the purpose of giving judgment that afternoon if that were possible. He also indicated that the further hearing of the matter, on the question of damages, would be in July 1999. 28 The summary transcript then records: "(His Honour ascertained that Mr Harrison [senior counsel for the defendant] did not wish to delay the tender of the presently available medical evidence in the circumstances ... )". Exhibits 3, 4 and 5 were then tendered in the defendant's case. Exhibit H was tendered by the plaintiff and admitted without objection. What became Exhibit I was then tendered. This was the ANZ Security Review which I mentioned in par 15. It was objected to. One of the grounds of objection was that senior counsel for the defendant had never seen it. The plaintiff's counsel replied that it had been produced on subpoena by a third party in May 1997 and had been available for anyone to look at since that time. After further discussion Adams J said he would receive the document, which then became Exhibit I and that plaintiff's counsel in his address would "need to point out the particular parts". Partly because of this the trial judge called on the plaintiff's counsel to address first on liability. He added that Exhibit I should remain on the bar table and that he would then hear what counsel had to say if submissions were to be made going to its admissibility. The defendant's counsel then formally reserved his position on the basis he might respond to it. 29 The transcript then records merely that counsel addressed on liability on which judgment was delivered at the end of the day and the further hearing adjourned to a date to be fixed. The hearing resumed on 12 July 1999. Exhibits 6, 7 and 8 were tendered by the defendant and admitted without objection. Consequent upon the reception of one of these latest exhibits, the plaintiff's husband was recalled for further examination-in-chief. This was very brief and he was not further cross-examined. The plaintiff's case was then closed. For the defendant two further tenders of evidence were made and the defendant then closed its case. There was no case in reply and counsel then made their submissions to Adams J on damages. A transcript of these submissions is part of the appeal papers. The argument I am presently dealing with would be easier to decide if the court also had a transcript of the argument on 28 May 1999 following which the trial judge delivered judgment on liability. However the court was informed that no transcript of that argument was available. 30 Senior counsel for the plaintiff appeared on all days of the trial before Adams J and on the appeal. A mistake in the transcript prevents me from finding out who junior counsel for the plaintiff was on the May days of the trial, but a different junior counsel from the one shown in the transcript as appearing at the damages hearing with senior counsel for the plaintiff appeared with him in the appeal. 31 The same senior counsel appeared for the defendant throughout the trial but a different junior appeared with him on the damages hearing from the one who appeared with him during the May days of the trial. A different senior counsel appeared in the appeal, with the junior who had been present during the May days of the trial. 32 The plaintiff's case at the beginning of the trial was that she had received no warnings about the state of affairs in Port Moresby before leaving Sydney for the 1991 trip and that warnings in Port Moresby were perfunctory. In the course of the trial, it became apparent that the first part of this aspect of her case could not be maintained. Evidence from other employees of the defendant established that there had been a meeting of the group about to depart for Port Moresby shortly before they went there at which there had been some discussion of the dangers of Port Moresby. The plaintiff at first denied that she had been present at this meeting but when a photograph of the meeting, and in which she appeared, was shown to her she agreed that she must have been present. It is apparent from the transcript that once the plaintiff was shown to be mistaken in this part of her case, her case became more sharply focused on contentions that she should have been warned in particular ways about how to keep herself safe in Port Moresby, which she said she had not been told about, and upon contentions that her employer should reasonably have taken particular steps for her safety which were not taken. 33 The matters raised on behalf of the defendant under head (b) of its appeal argument make it necessary to consider the likely course of events during counsels' addresses on 28 May 1999. The possibilities are limited. The matters now complained of were either raised or not. If they were raised and the defendant's counsel did not object, no complaint now about them should be entertained. If the matters were raised and objection was made by the defendant, the judge must have overruled the objection. Yet he delivered judgment without making the slightest reference to any such objection and the overruling. This seems unlikely. 34 If the matters were not raised and the trial judge introduced them in his reasons and the defendant's counsel was taken by surprise I would expect him, an experienced senior counsel, to have at once taken the matter up with the judge. 35 It seems to me to be significant that there is no sign anywhere in the materials available to this court of any objection having been made on behalf of the defendant either to the matters being raised, if that happened, or if it did not, to the judge's having taken into account in his reasons for liability any of the matters now complained of. 36 The absence of any material in the appeal papers supporting the unfairness charge which is the gravamen of the defendant's complaints under this head of its argument is highlighted by the fact that when the hearing resumed forty-five days later (an ample interval for reflection on the content of the trial judge's reasons of 28 May 1999) there is no sign in the transcript (which for this day appears to be more or less complete) of any complaint then being made for the defendant. It was not too late, even then, for the protest to be made. At that stage, the court had jurisdiction to entertain an application for reconsideration of the reasons for finding the defendant liable. Such an application may not have been well received, but that is not the point. The absence of any such submission lends weight to the inference that no serious concern was felt on the defendant's behalf at that stage, that it had been unfairly dealt with in the manner now complained of. 37 In my opinion this general approach to this head of the defendant's argument in the appeal is sufficient to dispose of it. The head of argument bears all the signs of new counsel on the appeal having scrutinised the appeal papers with a view to strengthening the argument on appeal, in a way that did not sufficiently take into account what actually happened at the trial and the way in which issues had there developed as the case proceeded. 38 I feel strengthened in this conclusion by two further matters. The transcript of the evidence taken from 25 to 28 May 1999 includes a number of observations made by the trial judge, sometimes in relation to questions which he himself had put to witnesses, giving signs, (particularly when taken with the questions themselves) that he might end by deciding the case along the lines which he did. By themselves, these signs are not particularly powerful in answering the defendant's complaint; they are not all one way, and sometimes not clear (as is to be expected from a judge in the process of exploring possibilities as a case proceeds) but taken with the general approach I have already set out and the further matter I am about to mention, they seem to me to be of some significance. 39 This last matter concerns Exhibit I. 40 Immediately before the plaintiff's address began on 28 May 1999 the position had been reached in regard to Exhibit I that the plaintiff's counsel was to point out the particular parts in it upon which he would rely and, although the document had become an exhibit, counsel for the defendant had been permitted to reserve the right to argue further against its admissibility in the light of the address of counsel for the plaintiff. 41 There is no further reference in the appeal papers to any argument about the admissibility of Exhibit I. The only inference available in this court is that it remained admitted as an exhibit following whatever it was counsel for the plaintiff had to say about it in his address. 42 All this court knows is that counsel for the plaintiff was going to indicate particular parts in the exhibit upon which the plaintiff relied. Exhibit I provides particularly powerful evidence of the danger for expatriates of the conditions in Papua New Guinea in 1991. The exhibit stated that conditions were worsening. The exhibit included Port Moresby amongst the danger spots. It was dealing in particular with the danger to bank employees. In one section it listed a number of incidents in which bank employees had been put in danger, and, sometimes, harmed. 43 In one section, headed "Residence Guards" the exhibit dealt with what safety measures were thought necessary in regard to the places of residence of bank employees. The exhibit said: " Because of the significant risks of forced entry into the residence, or of attacks occurring whilst opening or closing the residence gates, it is recommended that a guard be provided where the risks are high. At this stage, this would include Port Moresby, Lae, Goroka and Mount Hagen ... The guard service should be provided to residences occupied by wives and children as a first priority, wives only next and finally to single men's quarters. The guards' primary responsibility is to ensure the safety of residents as they move around outside the home, especially whilst getting into or out of cars or passing through the perimeter gate. Guards are to closely supervise the operation of the gates and ensure that no unauthorised persons enter the residence grounds. ... " 44 The whole document provides a factual picture of conditions in Port Moresby significantly graver than that of which the plaintiff was warned, according to the evidence of Mr Callanan, who was the employee of the defendant who gave evidence of the warnings that he gave to the group of consultants when they arrived in Port Moresby in September 1991. 45 In the light of all these considerations, it does not seem to me to be open to this court to hold that the trial judge was not entitled to take into account in reaching his decision any of the various matters complained of by the defendant under this head of its argument. 46 (iii) Head (c): Was it open to the trial judge on the facts found by him to find negligence against the defendant? A matter that becomes apparent upon reading all the evidence that was before the trial judge is that there was a distinction, recognised in Port Moresby at the relevant time, between the ability of resident expatriates and visiting expatriates to handle the dangerous situations in Port Moresby. Accumulated local knowledge and experience made it easier for the residents to know about and cope with the hazards. This does not mean that they were 100% immune from danger, but simply that they were in a better position to cope with it than visitors. I think there can properly be derived from the reasons of Adams J the opinion that the advice given by Mr Callanan given to visiting employees may have been well enough for residents but did not sufficiently take into account the hazards as they would present themselves to visitors. Hence, his opinion that in order to be able to provide appropriately for the visitors it was not sufficient for the defendant to rely merely on what was good enough for experienced Port Moresby residents, but the defendant should have gone further and have obtained the advice of a professional expert in security. This opinion seems to me to have been open and proper on the evidence. 47 Further, when all the evidence of danger in Port Moresby is taken into account together with the revelations of Exhibit I, I also think the trial judge was justified in concluding that the plaintiff should have been warned not to carry a bag on the street or within easy reach of the street unless it was absolutely necessary to do so. 48 Implicit in this basis of the trial judge's reasoning to a conclusion of liability was the proposition that it had not been necessary for the plaintiff to take her bag with her from the car towards the office she was about to visit. The defendant argued that it was not open to the trial judge to act upon such a basis. The way this particular issue was dealt with at the trial appears at Black AB page 164 which (inter alia) records what was told to the trial judge by counsel for the plaintiff, by agreement with counsel for the defendant. It seems to me that the only reasonable way of treating what the court was thus told by consent in light of the preceding discussion is that from the facts stated by counsel the trial judge could only conclude that it had not been necessary for the plaintiff to carry her bag into the office. (I think the word recorded at page 164 letter K as "don't" must have been "to".) 49 I would be inclined therefore to uphold the trial judge's findings on the basis upon which he put them. However, for the plaintiff a notice of contention was filed saying that the trial judge's decision should be affirmed on the grounds that the defendant was in breach of its duty of care (a) by failing to provide its women employees in Port Moresby with a driver or a man able to defend her and (b) failing to warn its women employees attending customers' premises in Port Moresby not to alight from their vehicles unless either the area was secured or they were escorted from their vehicles to the premises. 50 In regard to breach (a), there was evidence that it was relatively cheap to hire a driver as contended for. Mr Callanan, when breach (a) was raised with him, thought it too expensive for the defendant. The question and answer were as follows: " Q. ... it could have been easy, I suggest, and cheap to provide the representatives with a driver? A. No, from an economical point of view that would have been a prohibitive cost but to what end? The average security guard in Port Moresby is so lowly paid if any trouble occurs they are generally out the front running. Having security guards in Port Moresby is usually fairly ineffectual." 51 This answer conveys to me the opposite impression from that apparently intended by Mr Callanan. It seems to me to emphasise the dangerousness of the situations in Port Moresby in which visitors might find themselves and the high desirability of providing them with drivers capable both of keeping them out of trouble and defending them adequately if trouble was unavoidable. 52 Even if the grounds upon which Adams J found the defendant liable were not soundly based, I would myself found liability at the least on breach (a) in the notice of contention. The evidence seems to me to justify it fully. On this footing I do not think there could be any question about causal connection between the breach of duty and the damage.

Conclusion . 53 In my opinion the appeal should be dismissed with costs. 54 POWELL JA: I have read, in draft, the Judgment which has been prepared by Priestley JA, with which Judgment I understand Heydon JA to agree. I regret, however, that I am unable to do so. 55 The point of departure between Priestley JA and myself lies not in any difference in principle as to the duty which, at the relevant time, was owed by the Appellant to the Respondent, but, rather, as to whether, in all the circumstances of this case, the Appellant had discharged that duty. 56 It is well settled that an employer owes to his employees an overriding managerial responsibility to safeguard them from unreasonable risks in regard to the fundamental conditions of employment - safety, plant, premises and method of work. It is also well settled that, so far as the third of those matters is concerned, it is the duty of the employer to devise a suitable system of work, to warn his employees of unexpected risks and to instruct them how best to protect themselves against injury, and, further, to take steps to see that those instructions are carried out (see, for example, General Cleaning Contractors Limited v. Christmas [1953] AC 180, 194 per Lord Reid). So too, while cases in which an employer has been found guilty of failing to devise and enforce a safe system of work are most commonly cases relating to injuries sustained by an employee while on the employer's premises, it is well settled that the duty extends to devising and enforcing such a system covering activities undertaken by employees, in their character as employees, in places other than the employer's premises (see, for example, General Cleaning Contractors Limited v. Christmas supra; Chomentowski v. Red Garter Restaurant Pty. Limited (1970) 92 WN 1070; McLean v. Tedman (1984) 155 CLR 306). 57 All of this notwithstanding, the duty which an employer owes to his employees is not one of insurance or of "strict liability". As Professor Fleming wrote in The Law of Torts 7 Ed (1987) 485: "There is an element of risk in the performance of even the most simple industrial operations, but an employer is not expected to ensure that a system of work is in fact accident proof. He need only guard against unreasonable or (in the much favoured phrase) 'unnecessary' risks, having regard alike to the likelihood of danger, gravity of injury and means for avoiding it. Thus even an 'extreme risk of fearful consequences' does not connote negligence unless reasonable precautions could have minimised or eliminated it: herein the lies the crucial difference between negligence and strict liability. On the other hand, at one time it was fashionable to call upon Lord Dunedin's apothegm that when an employer is charged with a fault of omission, there must be proof either that he failed to adopt a precaution in common practice or that it would be 'folly' not to adopt it. But valuable though this warning may be against a facile finding that a precaution is necessary in the absence of general usage, the touchstone of the common law is not 'folly' but failure of reasonable care."

58 The ultimate basis for Adams J's Judgment on liability is to be found in the following paragraph (RAB 18): "The evidence of Mr. Redmond, to my mind, significantly supports the thrust of the evidence, if not its language, given by Mr. Ellis. I therefore draw the following conclusions; firstly, in the circumstances it was reasonably foreseeable that injury of the kind occasioned to the plaintiff might occur in the circumstances to which she was brought by virtue of her employment with the defendant; secondly, that the risk of personal injury by an attack of this kind was so substantial that the defendant had a duty to evaluate its extent and likelihood as well as appropriate modes of protection or avoidance of or by its employees by obtaining advice from persons skilled and experienced in the relevant area of risk evaluation; thirdly, that at all events the advice given to the plaintiff was inadequate in that it failed to cover the possibility of an attack of the kind which occurred here in premises of the sort to which she was sent, in the course of her employment; fourthly, that because the defendant failed in fulfilment of its duty of care towards the plaintiff she did not take appropriate steps to secure her safety and minimise the risk, and lastly, because of this omission she suffered the injuries which are the subject of her claim."

59 If I may, with respect, say so, his Honour's conclusions are difficult to reconcile with the observation which he made during the course of Mr. Callanan's cross-examination (Black AB 190) that "It was clear this was an opportunist attacking one individual against which no particular planning is effected" (quaere: "effective"). Further, it is a conclusion which, although seemingly based upon the evidence given by Mr. Lohberger and by the Respondent,, in the case of the evidence given by Mr. Lohberger did not accurately record it and, in the case of the evidence given by the Respondent does not appear fully to have been understood. 60 Mr. Lohberger's evidence was that he had lived in Port Moresby since 1960 and had conducted his business operation from the premises in the Konedobu area over that time; that the Konedobu area was both peaceful and quiet and better than a lot of the suburbs (Black AB 168); that prior to the incident which involved the Respondent there had been no similar incident in that period of thirty years at his premises (Black AB 169); and that the security guard, who had been employed for about 1½ years (Black AB 167) and who had been employed to stand near the gate into the premises (Black AB 172-173) had been employed "(because they) had a spate of petty thefts from outside the front of (the) premises from the back of utilities. A lot of (their) customers come with utilities and they have tool boxes in the back and electric tools sometimes, so (he) employed him basically to look after the cars out the front." (Black AB 167-168). 61 Despite this, Adams J wrote (RAB 13-14): "The crime in this case occurred in Konedobu, a light industrial area about five minutes or so, perhaps five kilometres from Port Moresby town centre. Mr. Lohberger, the owner and operator of the business where the attack took place, (called by the defendant), had been there since 1960 and was in all that time aware only of, I think, one instance, which was this occasions, where a bag snatching, or personal attack was made upon someone either on his premises or in the immediate vicinity of them. However, he mentioned that about a year or so prior to this event his business had been troubled by a number of petty thefts occurred from vehicles parked in his premises which he suspected were perpetrated by young men from a nearby squatter settlement. I consider that this evidence significantly qualifies the perhaps implicit view of Mr. Lohberger that the area was a safe one. Certainly, a submission on the defendant's behalf to this effect was made. It is but a small step to steal from the backs of trucks in broad daylight to attempt to steel a bag from a European woman in the same place. Much the same degree of audacity is required for both crimes. In the latter case it may well not be the intention of the thief to inflict violence but that does not mean that in the heat of the moment it will not be inflicted. Indeed a risk that it will be is, I consider, a real one."

62 The Respondent had previously been to Port Moresby in 1985 - not, as she said in evidence, 1984 - and, as the result of her having done so, had clearly formed certain views as to the steps which she ought to take to ensure her safety when visiting clients or prospective clients. Further, although the Respondent denied that, prior to her going to Port Moresby in 1991, advice was given to those who had elected to go and, after their arrival in Port Moresby further advice was given, as to the steps that ought to be taken by those employees in order to protect themselves against injuries, it is clear that his Honour accepted that that advice was given. Thus, in the course of his Judgment (RAB 16) Adams J wrote: "In the circumstances of this case, when visiting business premises such as Mr. Lohbergers, common sense would have suggested that ascertaining that some person such as a security guard or other employee was present before alighting would have been wise. The plaintiff was not given advice to this effect. The advice given to the plaintiff and others in her position in relation to handbags was that they should be worn over the shoulder so that it would be difficult to remove them, and hence, to deter any would be thief from the attempt to do so, unless of course that thief was prepared to be violent for the purpose of securing the item."

63 Even if this had not been so, it is clear that, as the result of her experience on her earlier visit to Port Moresby, the Respondent had formed some clear views as to the steps which she should take to protect herself from injury. That this is so is made clear by the following passage (Black AB 44) in her evidence: "HIS HONOUR: Q. Were you confident yourself that you knew what you should do to keep yourself safe in that situation? A. Yes. HARRISON: Was that because, for example, of the experience you had in the 1984 (sic) visit? A. Yes. Q. What else.? A. Commonsense. Q. And when you say 'commonsense', was that commonsense drawn from what you had seen when you arrived in 1991 as well as what you experienced when you were there in 1984 (sic)? A. Well, in 1991 it seemed a lot worse than it was in 1984. Q. And did that give you the feeling that you should take even more care for your own safety while you were there? A. That's right."

64 Some of the precautions which, as the result of her experience in 1985, the Respondent deemed it desirable to take are revealed by the following passage in her evidence in cross-examination (Black AB 39-40): "Q. Would it be fair to say before you had finished your 18 weeks there, you had worked out, either for yourself or with the assistance of those who were with you, what the security risks were? A. Oh, for sure. Q. And what precautions good sense suggested you should take? A. Yes. Q. By the time you left in 1984 (sic) what did you then know to be the appropriate security precautions you should take for your own personal safety? A. Not to do anything stupid, not to be on your own, not to go out at night, don't talk to any of them, and if they walked out in front of you in the car, just run over them and then go to the police station. Q. Wear conservative clothes: A. I would do that anyway. Q. But you certainly knew it by the time your finished there in 1984 (sic)? A. Yes, but I only ever wore conservative clothes. Q. Did you also work out when you were driving in Port Moresby you should park as close to the destination you were driving to reduce the distance you had to walk? A. Yes. Q. And you have been particularly aware of that, I suppose, as the result of the trips you made to pick up the pay? A. That is correct."

and the Respondent's evidence as to precautions which she had taken in 1991 prior to the incident at Lohberger Engineering, which evidence was as follows (Black AB 45): "Q. You visited clients in Boroko when you drove in 1991? A. Yes. Q. And, obviously, you had driven to clients in Boroko in 1991 before the incident on 11 October 1991 at Lohberger Engineering? A. That's correct. Q. What procedures did you adopt for your own safety when you were driving to clients before that date in, for example, Boroko? A. I did exactly the same thing every time. Before I get out of the car I would check to make sure that I had nobody sort of within a range of me before I got out of the car. I would get out of the car and then go to the back door to bring out my brief case and go straight to the client's office. Q. And this would occur, would it, in circumstances where you were required to park in the street nearby the place you were visiting? A. Yes. Q. And did any of the places you visited have secure compounds you could drive into? A. A couple did. Q. What did you do when you got to the compound that you could drive into? A. I explained to the security person on the gate that I had an appointment with whoever I had the appointment with and they would allow me to come in."

and by the Respondent's evidence as to what she did on 11 October 1991 which evidence, in part, was as follows (Black AB 10-12): "DONOHOE: Q. Tell us what you did with your car as you approached this address? A. As I came down the hill of Laws Road I noticed the market. HIS HONOUR: Q. Is this coming from the Boroko direction? A. Yes, coming down the hill, yeah. I noticed the market on the right hand side and then I saw Mr. Lohberger's sign and the gate was opened, so I drove into the gate because there were too many people, nationals, hanging around outside. So I drove straight in nearly to his front door. DONOHOE: Q. I take it there was a building within an area surrounded by wire and a gate, is that right? A. That's right. Q. How close to the building did you park your car? a. From you to me. DONOHOE: That's about three metres, four metres. ……… Q. Did you have with you a purse? A. Yes, I did. Q. Did it have a shoulder strap? A. Yes. Q. Did you have a briefcase on the floor behind you, behind the driver's seat? A. Yes. Q. What did you do with your purse? A. I put it over my shoulder as I got out, before I got out of the car. Q. And what did you do with the strap? A. Put it over my head. ……… Q. Did you do anything before you got out of the car? A. I always checked my rear vision mirrors, both sides, and the one in the middle, to make sure that was nobody lurking behind the car as I got out. Q. And I take it you didn't see anybody? A. No. Q. When you got out of the car what did you do next? A. Opened the back door and reached in to get my briefcase. Q. What happened next? A. That's when the national came running in through the gate and grabbed at my bag but couldn't break the strap."

65 Having regard to Priestley JA's estimate, (para. 9 of his Judgment) of where the Respondent's car would have been at this time, it is desirable that I refer to some further evidence given by the Respondent. That evidence was as follows (Black AB 48): "Q. You had, I think, told us that you had been issued with a small four door Suzuki sedan motor vehicle: A. I think it was a Swift or something. Suzuki Swift, I think they were. Q. It was a four door car? A. Yes. Q. And you drove into the area where you located on the photographs or referred to on the photographs? A. That's right. ……… Q. There was no vehicle in the position where the truck is, for example? A. No. Q. So, might it be that you parked your car partly in the area where the truck is located in the photographs we have seen? A. Yes. Q. In all events, you were directly opposite the office door? A. Well, the front of the car would have been. Q. Would it be fair to say that when you got out of the driver's door of the car, you were something between two to three to four metres from the side door? A. Yes. Q. Of the office building that you identified, the blue one? A. Yes."

and, later (Black AB 49): "HARRISON: Q. Would it be fair to say that you could not have parked much closer to the side door and still been able to easily get out of the car? A. No. Q. You would agree with that? A. Yes."

and, later again (Black AB 51-52): 'Q. And, as far as you can recall, when you hopped out of the car, there wasn't a single person that you could see anywhere in the vicinity, either in the premises or in the street, is that correct: A. There was nobody in the premises, but in the street, across the road, there were people. Q. And you could not, of course, from either or any of your rear view mirrors, see the markets, I assume: A. No. Q. And your brief case was on the back seat? A. It was behind the driver's seat on the floor. Q. On the driver's side? A. That's correct. Q. And it may be something that is obvious, but how long did it take you to get out of the driver's door, close it, go the passenger door and open it, and lean in to pick up your brief case? A. Seconds, I presume. Q. And it was in the course of your retrieving your brief case that you were attacked? A. Yes, I had not got the brief case out. HIS HONOUR: Q. You had the door open? A. I had the door open and I had my hand in to get the brief case, but I had not got it out. HARRISON: Q. Did you check again, when you hopped out of the driver's side door and walked the small distance to the passenger door on the same side, to see if there were any other people around? A. Yes. Q. And there was none? A. No. Q. And did the person who attacked you come from behind you or from your left or your right or what was the position? A. Well, I had my left hand in to get my brief case, so he came through Mr. Lohberger's gate, to my left-hand-side. Q. Again, we know you parked the nose of your car opposite the door of the factory, how far, from where you were standing, was it to the footpath outside Mr. Lohberger's office. A. I would say, from about where I am to the door I came through, roughly. Q. Would twelve metres do it, between ten and twelve metres? A. I am a bit old for metres, sorry. HIS HONOUR: Q. How many yards? A. About twelve." 66 Given the emphasis placed by both Adams J and Priestley JA upon the evidence of Mr. Draper, it is as well to add a reference to the following evidence given by Mr. Draper in the course of cross-examination (Black AB 162): "HARRISON: Q. It would be good practice before alighting from a vehicle to check the location: A. Yes. Q. Both in front of you and behind you and around you? A. Yes. Q. And via the rear view mirrors? A. Yes. Q. It would be good practice to park as close as possible to the building you are intending to enter? A. Very much, yes. Q. It would be good practice to park within the curtilage of the premises if that were possible? A. Yes. Q. It would be good practice even if those premises had a gate which remained open after you had entered them? A. In Papua New Guinea, and particularly in the areas around Port Moresby, it is quite common for those gates to be attended. Where they are unattended, one would necessarily need to be more cautious. Q. I think the point of my question, it would be better practice to drive through open gates and park within a compound than to park beyond the compound, leave your car, and walk from there to the premises? A. Yes."

and, later (Black AB 163): "HIS HONOUR: Q. The question of having a bag over your shoulder, in one sense it may operate as a deterrent because the thief may not make so convenient a snatch as he might otherwise do. On the other hand, it carries with it the risk of physical injury which is not present if someone just snatches it. In relation to a woman, admittedly not an elderly one - physically robust in these circumstances, and if you had to carry a bag, what would your view be about the sense of putting it over your shoulder in a way that would make it difficult to be snatched as distinct from, as it were, someone was going to do it to allow it to occur? A. The situation would be that especially over the shoulder would be as some form of deterrent and thereby a particular assailant may be deterred from making the attack in the first place. Quite frequently these attacks are made in terms of a confrontation or a threat, and our reaction is to comply in full, so if I might extrapolate on that; if the bag were carried more openly and in less of a protected way, that may invite more of a situation to occur. It may marginally increase the likelihood of that. Q. What it would do, it might increase the likelihood of a snatch but decrease the likelihood of physical harm or not - do I misunderstand that? A. It is possible it could, however the nature of the confrontation would depend - it is unlike the person, having assessed the victim as having the bag over the shoulder, would attempt to snatch it more likely: Give my your money; make some type of demand, rather than attempting to snatch and cause injury through that attempt. Q. The real point is just don't carry a bag unless it's absolutely essential because you are inviting someone to look at you as an object of possible prey by simply having that there, and there is no point in doing that unless there is a real point in having the bag? A. Yes."

67 In all the circumstances, so it seems to me, the incident at Lohberger Engineering represented an opportunistic attack against which no particular form of planning would have been effective, it following, in my view, that the Appellant had not failed to take all reasonable steps to protect the Respondent from the risk of injury. 68 Although (para. 49 of his Judgment) Priestley JA was disposed to uphold Adams J's findings on the basis upon which he put them, his Honour also (para. 52) of his Judgment indicated that, even if the grounds upon which Adams J found the Appellant liable were not soundly based, he (Priestley JA) would found liability upon a breach of the Respondent's duty of care by failing to provide its women employees in Port Moresby with a driver or a man able to defend them. 69 Although in his Judgment (para. 52) Priestley JA expressed the view that the evidence justified a finding of breach by the Respondent of its duty in that respect, I would, with respect, disagree, particularly so as Adams J made no findings of fact in that regard. 70 In the course of his cross-examination (Black AB 162-163) Mr. Draper gave the following evidence: "Q. You appreciate that in 1991 European woman (sic) in daylight drove around the Port Moresby area? A. A number of expatriates, women who live and work in the area. Q. To your knowledge in 1991, it was not uncommon for them in daylight hours to do so alone? A. With the benefit of local knowledge, yes. HIS HONOUR: Q. Whose local knowledge are you talking about; yours or theirs? A. Theirs. In that being a resident within the area provides one with it (sic) the opportunity to peruse local newspapers and perhaps to have a heightened level of awareness which would assist in facilitating that kind of movement. HARRISON: Q. But it occurred? A. Yes. ……… HARRISON: Q. You are not aware of the practice, a universal practice adopted in Port Moresby in 1991 which required European women driving motor vehicles to be accompanied by a chauffeur or security guard, are you? A. Not a universal practice, no." 71 In the course of his examination in chief, Mr. Lohberger who, as I have earlier recorded, had lived in Port Moresby since 1960, gave the following evidence (Black AB 171): "HARRISON: In 1991 did you employ any European women in your business? A. I can't really remember. I think I had an expatriate accountant. I certainly always had expatriate accounts, whether it was European for Filipino at that stage I don't know. HIS HONOUR: Q. But a woman? A. Yes, always women. HARRISON: Q. In 1991 were you aware of a practice in relation to European women driving alone in daylight hours in the Port Moresby area? A. Yes, it is very common. Q. Were you aware of a practice in 1991 that required European women at all times to be accompanied by a driver or security guard when driving in daylight hours. A. No. Q. Are you aware of such a practice now? A. No, still not." while in the course of re-examination, he gave the following evidence (Black AB 173-174): "HARRISON: Q. My friend asked you some questions about European women driving? A. Yes. Q. And I think that was in relation to some questions I asked you about whether they …. HIS HONOUR: Were accompanied or not. HARRISON: Q. Accompanied or not. Do you make any distinction between European women who are more or less permanent residents, although expatriates, and European women who are not permanent residents. Q. Who are visitors? A. Yes, because if they are not permanent residents, they wouldn't know where they were going so they normally have someone with them to show them where to go? Q. But assuming that they know where to go, is the practice or was it in 1991 the same? A. The same yes, as long as you know where you are going."

72 In the course of his examination in chief, Mr. Callanan gave the following (inter alia) evidence (Black AB 184-185): "Q. The representatives were issued with motor vehicles? A. Yes. ……… HARRISON: Q. Some of the representatives were women? A. Yes. Q. They had motor vehicles which were provided to them to permit them to drive to various locations where they were required to do business? A. Hmm hmm. Q. The company did not provide a driver or security guard to the women representatives to accompany them on such visits? A. No, not as a matter of course. The offer was always open to any of the staff if they had any concerns about a particular area of Port Moresby they had to go to, they could talk to any national staff to find out what the lay of the ground was and what they could avail themselves of. Q. Was any instruction issued in the use of motor vehicles about what should happen if expected or actual difficulty encountered on the arrival of (sic) the premises? A. Yes there was a concern about the personal safety. The instruction was to say in the car or return to the hotel or office. Likewise, if stopped at a road block to stay with the car, have the car locked, basically get back to a friendly environment and worry about any issues arising thereafter."

while in the course of cross-examination he gave the following (inter alia) evidence (Black AB 191): "Q. Sir you told us that drivers were as a matter of course not provided for female representatives? A. That's correct. Q. There was an exception when they went to problem areas? A. That exception was available. It was made known they had an option as part of procedures as setting appointments and work, daily schedules, if they had any concerns they could talk to the staff about that area and briefed whether it was likely to be a problem. If they felt it was they could request company but in general terms they did not. Q. Is this the case, it was clear to you that the staff who were up there on secondment didn't know the local geography or the local population in those regions? A. Firstly, that would depend whether they had been before and secondly we gave a general orientation so they had a fair idea where he (sic) was in Port Moresby. HIS HONOUR: Isn't a hard city to navigate, it runs along the coast? A. Apart from that, there's the main road out of town through to the airport and most suburbs branching off that." and later (Black AB 193): "Q. What you have done, is this not the case, is reflect back to what your regular practice was as opposed to what actually happened in 1991? A. No, in the matter of law and order and safety concerns it was obviously the paramount issue from the point of view of Yellow Pages and Edward H. O'Brien clearly did not have to dwell on how to sell advertising and those sorts of things, the issues were covered when they got there, were about personal safety because that was one of my prime concerns. Q. If it was of paramount issue sir it could have been easy, I suggest, and cheap to provide the representatives with a driver. A. No, from an economical point of view that would have been a prohibitive cost but to what end? The average security guard in Port Moresby, is so lowly paid if any trouble occurs they are generally out the front running. Having security guards in Ports (sic) Moresby is usually fairly ineffectual. Q. Can I suggest to you the cost of having a driver would have been in the order of 100 kina a week? A. Could have been." and later again (Black AB 195): "Q. You told us sir there was an exception to the provision of drivers, that is, drivers were provided where the employee was where they were going to a potentially dangerous area? A. Yes. Q. If they had a concern they were able to ask for that facility that would be based on some perhaps current event that had current that day or previously? HIS HONOUR: Q. Following this particular incident the campaign had gone on for another few weeks, did anybody during that time after this incident seek to have a driver? A. Not that I recall. Q. Did you take any increased security precautions? A. No. We saw it for what it was, a one off incident that could have happened in any part of town to anybody. I might point out it is not just women that get held up, this notion of offering women drivers and not men is somewhat spurious, they were all in the same predicament." 73 For these reasons, it is my view that the appeal should be upheld, the verdict found and Judgment entered by Adams J set aside and in lieu thereof Judgment entered for the Appellant, the Respondent to pay the Appellant's costs of the trial and of the appeal, but to have a Certificate under the Suitors Fund Act 1951. 74 HEYDON JA: I agree with Priestley JA. **********

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