Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] HCA 64;

Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] HCA 64; - HCA 1968 case summary — Zoe

[14]

". . . the thieves first splintered and removed the closing jamb

and the lintel, using the closing side of the door as a fulcrum and

then, having removed or splintered the jamb, used the chipped bricks

as a fulcrum to force the closing side of the door out into the

passageway. This activity also involved a certain amount of chipping

of the brick round the socket into which the horizontal locking bar

on the closing side was fitted, with the result that the brick did

not present any distraction to prevent the locking bar being levered

towards the passage. The action of forcing the door in this way also

caused the vertical locking bar into the floor to be forced out of

its socket and, indeed, the evidence before me was that it was bent.

When the robbery was discovered, the jamb on the hinge side was

substantially intact although it was weakened in its attachment to

the brick wall, and the door on that side, although not completely

undamaged, was practically so. When the operation was completed, the

door bore on its face and side about forty-four different marks of a

jemmy. This method of forcing the door was acknowledged by Mr.

Marshall to be probable and he also said that although it was

difficult to make an estimate of the time involved, it would

probably have taken between three-quarters of an hour and one hour.

. . . . . . . . . . . . .

In the condition in which this door was installed there was

exposed to the view of anyone looking at it from the passage, a

considerable area of softwood. The door, unquestionably, was flush

with this wood along the side which formed a right-angle with the

passage but the wood constituting both door jambs, as I have already

explained, projected towards the passage from beyond the face of the

door for about two inches. In my opinion, it is clear that a

determined burglar equipped with a jemmy could splinter this wood

and lever open the door into the passageway, in a comparatively

short time. There is some evidence to suggest that this could have

been done in about an hour and, in my opinion, this estimate is the

outside limit and it would probably have taken a shorter time." (at p520)

[20]

11. With great respect to the members of the Supreme Court, however, we do not consider that the question can be stated in such particular terms. The defendant could, in a variety of ways, have fulfilled its obligation to supply, fit and hang a door so that it would constitute reasonably fit protection against thieves, and it was certainly not under any particular obligation to sheath the jambs. The point is, however, that the work as it was done did not constitute the door a reasonable deterrent to thieves wanting to break into the shop, and it is not the point that the contract did not provide a particular means of making it such a deterrent. The contract did not provide in terms that the two horizontal locking bars should, when in position, be bedded into the bricks but, as we have already said, to have bedded them merely in the wooden jambs would have constituted a breach of the implied warranty to supply, fit and hang a door which would, when in use, provide a reasonable means to prevent thieves from breaking into the shop. Of course the defendant did not undertake to provide a door which would defeat all endeavours of determined thieves to break in and steal, and its implied obligation was, of necessity, qualified. Nevertheless we are not prepared to express that qualification more particularly than by using terms indicating reasonable fitness for the purpose for which the door was being installed; in particular, we are not prepared to state the qualification in terms of the time by which would-be breakers have been delayed by the door. Of course the door as fitted would delay progress longer than would the hollow core wooden door which it replaced, but that, we think, is not enough. What the plaintiff contracted for was a door which when locked would be reasonably fit to keep would-be breakers out of the shop and the door as fitted and hung by the defendant was, as the learned trial judge found, not of that character. We think that finding was open; indeed we agree with it. In our opinion the Supreme Court was wrong in its conclusion that breach of contract had not been established against the defendant. (at p523)

[26]

OWEN J. The appellant, the plaintiff in this action, was the lessee of a lock-up shop in which it intended to conduct the business of selling men's clothing and the defendant carried on the business of supplying and fitting commercial premises, such as shops, with doors equipped with what were called "Rivers Locking Systems" designed to afford a measure of protection against thieves breaking into and out of such premises. The plaintiff's shop was one of a number which fronted an arcade. Running behind the shops there was an enclosed passageway into which the back door of each shop opened and which led to a loading dock opening on to a lane, the loading dock being fitted with a roller shutter. This passageway would obviously offer attractions to anyone who wished to break into any of the shops since such a person would, if the roller shutter at the loading dock was pulled down, be able to work unobserved while forcing the door of the shop of his choice or breaking through the single course brick wall which separated the shops from the passageway. When the plaintiff became the lessee of the shop its back door was a hollow core door with an ordinary lock which would provide little protection against an intruder, and this, coupled with the existence of the passageway and the fact that the rear wall of the shop was a single course wall, made it difficult for the plaintiff to take out a policy of insurance against loss that might result should some person break and enter its shop. In these circumstances an insurance broker advised the plaintiff to consult the defendant for the purpose of seeing what could be done to make unlawful entry into the shop more difficult. A Mr. Glass, representing the plaintiff, thereupon had an interview at the shop with Miss Rivers, the managing director of the defendant. After inspecting the premises she advised Mr. Glass to replace the hollow core back door with a solid core door covered with sheet steel on the side facing the passageway and fitted with a Rivers Locking System. Mr. Glass inquired what she thought would be the risk of burglary if her suggestion was carried out and Miss Rivers replied: " . . . if you do this work I would consider your risks of burglary to be entry and removal of goods through the rear wall and removal of goods through the glass panels at the front" - that is the front of the shop opening on to the arcade. She said: "Your real risk is this brick wall, it has a single course of bricks and a dark passageway, the passageway is dark and lonely and people can work here in unlimited time. What you really need to do is to secure this passageway", this last remark being directed to the provision of some safeguard to prevent entry into the passageway from the lane. Mr. Glass said: "I cannot take care of every possibility. There must be some limit. I am having an alarm system fitted." Miss Rivers replied: "Our door will cause delay and an alarm system will support this in that it reduces the time one can stay at work but I still recommend that you lock the roller shutter at the rear of this passageway because if entry is made into this passageway through any of the adjoining shops and the wall is breached the roller shutter will then be opened from the inside to take stock out." Mr. Glass then asked Miss Rivers to give a written quotation for the work and a few days later a written quotation was supplied. It stated:

[32]

6. While I am not disposed to differ from the view thus taken by the Court of Appeal, there are, in my opinion, two further matters each of which would entitle the defendant to succeed but which that Court found it unnecessary to consider. As I have said earlier, it is conceded by the parties that there could be no warranty of absolute protection against unlawful entry. The most that could be said is that the defendant warranted that the door as fitted and hung would afford a reasonable measure of protection against unlawful entry by impeding or delaying a forcible entry to a significant extent and thus discouraging the intruder from breaking into the shop by means of the door. The fact as found by the learned trial judge was that the task of splitting the wooden door frame, chipping away the brickwork so as to free one of the locking bars and forcing the door open probably took the intruder between three-quarters of an hour and an hour. It is, I think, impossible in these circumstances to say that the plaintiff established that the door did not impede or delay the thief to a significant or substantial extent and, if that be so, no breach of warranty was proved. Further, assuming that there was a breach of such a warranty, it is impossible to say that it was proved that the plaintiff's loss flowed from that breach. Suppose the door had been of such a kind as to delay the intruder's entry for two or three hours or even longer. Would he have abandoned the enterprise or would he have persisted with it and ultimately succeeded? It seems to me that the evidence does not permit of an answer to those questions. It is not known when it was that he began his work or how much time he was ready, able and willing to devote to it. Even if it be assumed that he was a reasonably skilful and determined operator, it is impossible to say whether he would have given up the task or gone on with it and ultimately broken through the door or whether he would have turned his attention to the one course brick wall and knocked or prised out sufficient bricks to get through it in which case, so a police officer who gave evidence estimated, it would probably have taken him from one-half to three-quarters of an hour. Even if it was permissible to speculate, I myself am unable to say which guess would be more likely to be the correct one. (at p528)

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] HCA 64; (1968) 120 CLR 516 (17 October 1968)

Parties

Cases Cited (1)