RossTown Holding Pty Ltd v Mallinson [2000] VSCA 166

RossTown Holding Pty Ltd v Mallinson [2000] VSCA 166 - VSCA 2000 case summary — Zoe

[4]

The principal complaint made in the present case is that it has not been shown, nor did the judge adequately demonstrate in her reasons, that the damage by way of injury suffered by the respondent was caused by any breach of duty on the part of his employer, the appellant. One may accept for present purposes that it was more than adequately demonstrated that the appellant was in breach of its duty in failing to provide both a reasonably safe place of work and a reasonably safe system of work so far as the respondent was concerned and indeed for all its employees who were obliged to continue work after the hotel had shut for the night and who were asked, directly or by inference, to lock up the hotel alone late at night. Nor, having regard to the learned judge's fact findings as to the credibility of the respondent's account of the events on the night of 22 January 1993, can there now be any doubt that the respondent suffered a serious injury (a finding not now challenged on the appeal), namely post traumatic stress disorder and related psychiatric disturbance, which clearly flowed from his experiences as the victim of an armed robbery on the hotel which involved not merely being held up late at night by an armed gunman, but also being forced at gunpoint to assist the robber to appropriate sums in excess of $9,000 in cash from a container behind the bar after which he was locked in the hotel's cool room. Moreover, there is no doubt as to the circumstances which led to the respondent being on the premises and carrying out his duties in the way that he did that night. He was an assistant manager responsible for closing the premises, but directly or by implication he had been given directions to allow the rest of the staff to go either during opening hours or as soon as practicable thereafter. If it was not implicit that he should lock up the hotel finally on his own, there was clearly no direction that two or more employees should always be present until the hotel was finally locked up. Likewise, there was no dispute that one of the tasks to be performed as part of the locking up process was the pulling down and locking of a roller door at the end of a long lane, entered from a dimly lit kitchen doorway, and that the methods for counting and storing the takings left a good deal to be desired. It is sufficient to say that it could well have seemed an ideal target for any modestly ambitious armed robber who might have observed these deficiencies with a minimum of difficulty.

[6]

Admittedly the learned judge said relatively little about causation as such. The appellant asserted that the reasoning came only from one sentence in which the learned judge said that she was satisfied of the breach of the duty of care owed to the respondent and "that the breach was a cause of the plaintiff's injury". However, that followed a detailed and on the whole carefully expressed statement of the circumstances leading to her conclusion that the appellant was in breach of its duties, of the armed robbery itself and of the injuries suffered by the respondent. She had also found that there was "a reasonably foreseeable risk of robbery and of injury to the plaintiff in the course of, or for the purposes of, the robbery" which was a real risk in the sense described in the decision of the New South Wales Court of Appeal in Chomentowski v. Red Garter Restaurant Ltd.[1]. She had also taken into account that the existence of the risk was foreseeable as being "inherent in the circumstances as a whole" having taken into account the nature of the premises, the business conducted thereon (including the volume of takings) and the fact that large premises had been left to be secured by one person, namely the respondent, when, in her opinion "the presence of at least another person would have afforded a degree of safety absent in these circumstances". She had described the breach as being "not substantially" constituted by the failure adequately to light the laneway but "rather [by] failing to provide for more than one person when the hotel was being secured for the night". She noted that it was in the course of attempting to secure the premises that the respondent had been confronted by the armed robber and overpowered, leading to the robber being able to steal the money, but she considered that this was not the breach but rather the exposing of the plaintiff to the situation, thereby causing injury, which should have been foreseen. That there was a breach, she said, was demonstrated by the ease with which the appellant could have taken precautions such as by not sending other staff off duty early and by providing better means for leaving and closing the hotel premises.

[8]

The appellant sought to challenge both the finding that it was in breach of its admitted duty to provide a reasonably safe system of work and that the alleged breach caused damage to the respondent in the sense that they were the cause of the injuries established before the learned judge. The arguments tended to telescope because in substance it was said that the appellant's duty was only to take reasonable steps to guard against reasonably foreseeable risks of injury and that the damage here suffered was not reasonably foreseeable. For this purpose it is important accurately to identify the events which should have been averted, and those matters for which, in turn, the respondent seeks to be compensated as consequential injuries. Both sides tended to concentrate on what happened outside the kitchen door, not merely because the respondent had claimed that that area had been insufficiently lit, but because the respondent had first been confronted immediately outside that door and in the laneway and where the armed robber sought in the first place to overpower him. But that was not the sole aspect of the incident pleaded by the respondent nor was it the sole aspect which the plaintiff claimed was the cause of his injuries and loss and damage. The "incident" of which he complained was that he was "the victim of an armed hold up in which he was threatened by a masked bandit, robbed at gunpoint and locked in a cool room". It was the whole of that incident which had led to his suffering post traumatic stress disorder and the other psychological consequences of which he complains. That the incident had led to the respondent's unfortunate stress disorder was ultimately made out to the satisfaction of the judge but, of its nature, it would be and was impossible to identify which aspect of the incident had any particular psychological consequences. To my way of thinking it could not be otherwise than that it was the whole of the incident from the moment he was faced with the gun in the hands of the masked robber to the time, some twenty minutes later, when he was left for an indefinite period in the cool room which in its totality had had these most unfortunate consequences for him.

[10]

More importantly I do not see why her Honour was in error in giving an affirmative answer to the question "whether, in the circumstances ..., there was a foreseeable risk of injury of the kind which occurred", as counsel's outline here formulated the question. Undoubtedly, to my way of thinking, if a hotel owner leaves a large and ordinarily busy hotel to be closed down and locked up in circumstances where it encourages other staff to be put off as early as practicable and requires the remaining employee to secure the night's takings and to lock up not merely the main doors but also a manual roller door situated thirty or so metres down an alleyway entered from a dimly lit back door, where that employee will ordinarily have no assistance on the premises to complete those duties, then it is clearly foreseeable that those with a propensity, or perhaps merely with an inclination, to commit armed robberies will be tempted to take advantage of the situation in order to hold up the sole remaining employee and steal the evening's proceeds. The situation is not all that different from that which occurred in PTC v. Sartori and Chomentowski v. Red Garter Restaurant[5]. Of course, each case depends upon its particular facts but it could not now be contended that, because the act directly likely to cause injury is that of a person for whom the employer is not responsible and is a free agent acting unlawfully, an attack of the kind here perpetrated was not easily foreseeable. The very task the employee was engaged to perform included the securing of the premises, both main doors and laneway roller door, and ensuring that the takings were safely locked away. If the employer had the wit to foresee (and guard against) the possibility of a robbery at 21 minutes past midnight when the employee had gone, that self-same employer surely must have foreseen that, if one person were left to carry out these duties, which involved going outside the main doors of the hotel itself, then both hotel and employee might well have been held up at a quarter or 20 past midnight while the employee remained alone on the premises. After all, service stations and convenience stores are not infrequently attacked at night in similar circumstances, the armed robbers not ordinarily waiting until the doors are firmly locked against them. The evidence made clear that the hotel owner here was well aware of the risks and chose to allow the hotel to be locked up at least expense to itself, thereby placing at risk those employees vouchsafed with the duty of locking up the hotel.

[13]

That, however, was only part of the story. In the first place, it may be said that the objection made by the learned judge to the appellant's behaviour was not merely to a failure to have the additional person at the doorway when the respondent went to put out the rubbish, but to have that person accompany the respondent up the lane, to lock down the roller door. Insofar as that ought to have been a requirement of the employer, then it clearly would have obviated, or at least on the balance of probabilities it could be found to be likely to have obviated, the particular attack on the respondent. But that is not all. The respondent claims damages not for merely what happened at the back door but for that which followed from the whole of the incident as it affected him. It would be indeed impossible to segregate those aspects of his post traumatic stress disorder, shock, anxiety and depression into those which flowed from the initial hold-up, from the struggle and forcing at gunpoint, from the taking of the money under his control and from his being locked in the cool room. These were, however, the whole of the incident pleaded which was said to flow from the breach of duty. These events took place not merely in the laneway, but for the rest entirely inside the premises, as the armed robber forced his way in and bullied the respondent around the partly lit but otherwise deserted hotel premises to get the takings and then, with seemingly calm deliberation, to subject him to an unlawful imprisonment in the hotel cool room. Now one may argue that the incident at the back door may not necessarily have been obviated by the attendance or presence of another person, but it is impossible to conceive that the whole of the incident would have taken place in the way that it did with the consequences it had unless, as in fact was the case, the respondent had been effectively required on his own to close up the premises that night. It is highly unlikely that the robbery would have taken that form if somebody else had been in the premises, but even if the armed robber had been so bold as to believe that he could hold up two people, not merely by keeping them in one place but also by moving them around the hotel and then trying to lock them up, that would have led to an incident of a quite different character, one in which at least the respondent would have had another person to provide, if not physical support, at least moral support over the twenty minutes duration of the robbery and the later, longer incarceration.

[21]

"It is conceded that the defendant was under a duty to the plaintiff to provide a safe system of work and to provide a safe place of work; that is, to provide adequate security for the plaintiff, and to provide a system of work which ensured his safety and security. On the basis of the authority of Chomentowski v. Red Garter Restaurant Ltd (1970) 92 W.N. NSW 1070 at 1073, there was here a reasonably foreseeable risk of robbery and of injury to the plaintiff in the course of, or for the purposes of, the robbery, and it was a real risk and not a mere fantastic possibility. In the context of this case, as in Chomentowski, the existence of the risk and its foreseeability were inherent in the circumstances as a whole. That is here taking into account the nature of the premises, the nature of the business conducted on the premises (one might expect there to be large amounts of money at the close of business), the fact that the premises were large and were left to be secured by one person, when the presence of at least another person would have afforded a degree of safety absent in these circumstances, in my view, are aspects of the defendant's duty and breach thereof. The breach of the duty was not substantially constituted by a failure to light or adequately light the outdoor area near the kitchen, the shadow of darkness presumably providing cover for the robber, but rather failing to provide for more than one person to be on the premises when the hotel was finally being secured at the close of business. The plaintiff was, as I understand it, going out the kitchen door so as to bring down the roller door, which could only be done manually. It was in the course of securing the premises that he was confronted by the armed robber, and, being on his own, was overpowered by him. The armed robber was then in a position to force his compliance and thus steal the money, but this is not the breach, but, rather, exposing the plaintiff to this situation and thereby creating his injury which should have been foreseen. The ease with which the defendant could take precautions which were reasonably available to be taken, for example, not sending other staff off duty before closing time and providing a better means of leaving the building, and the failure to do so demonstrates the breach of the duty of care."

[34]

"As to the future economic loss, Mr Bird submitted it can only be calculated in relation to his current economic loss, which is accepted at $113 per week, and that, whilst there is a risk he will become further incapacitated, there is also the possibility that with continued treatment and alternative treatment, coupled with the support of his family and the resolution of these matters, he might improve. There is no evidence, except for the possibility of alternative psychiatric treatment, that the other factors relied upon would lead to an improvement in his condition, and it is noted that they have not, to date. There is, however, no evidence that his condition will deteriorate: it appears at the very least if he continues with the therapy with Mr Cummins his condition may not deteriorate. There is evidence psycho-active medication will help him to cope more with the stresses of daily living; nonetheless, he does decline such treatment. There was no evidence that with the medication he could return to his pre-injury employment, thus I am not satisfied that it is unreasonable for him to decline the drug therapy. Mr Dalton QC submitted that there is a risk that he may suffer a total loss of his ability to engage in employment and that I should take such risk into account in fixing the appropriate figure for future economic loss. However, I am not satisfied that there is a substantial risk of that occurring, and this is because he has only relatively recently, and despite his disabilities, been able to impress his employers at Target that he had the ability to take on a managerial role, and, when he declined this position, he was able to persuade them to re-employ him, so that despite his disabilities and his unwillingness to assume greater responsibilities his employers inferentially still regard him as worthy of employment, and indeed their stance is consistent with Dr Wahr's evidence that he could work longer hours. Further, I do not consider that the plaintiff was entirely frank in his evidence concerning his ability to do the Barwon Heads job; he apparently recounting to Mr Cummins quite a different history concerning his capabilities and duties whilst employed there; and coupled with his frank admission that he might still be there were it not for the dermatitis. The plaintiff has also maintained his licence to act as a gaming room supervisor. This suggests that at the very least he considers this to enhance his qualifications, if not employability. Accordingly, taking into account the principles enunciated in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 639, 642 and Farlow's case, the risk of loss of employment should be substantially qualified by these factors, as should the figure for future economic loss. Mr Dalton QC submitted various multipliers and making an allowance of 15% for the vicissitudes of life. He submitted the figure lay between $115,000-$433,000, including an allowance for superannuation, but less 15% for the vicissitudes of life, but he submitted a broadbrush approach was appropriate and the figure of $250,000 for future economic loss, taking into account that there was a real risk of total unemployment. For reasons earlier stated I do not consider there is a substantial risk of total unemployment so as to amount to a certainty, although there is a chance of it. Accordingly I propose to assess for future economic loss $200,000, less 15%, being $170,000."

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties

Cases Cited (1)