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.