The Court held (Kirby J dissenting) that the landowner's duty did not extend so far.
43 Hayne J agreed with the Chief Justice, but added some additional reasons, which provided the foothold for the Appellant's argument in the present case. The gist of his Honour's reasoning was that "the coherence of tort law depends upon 'the notions of deterrence and individual responsibility'", a phrase adopted from Professor Stapleton: at [116]. Those principles, his Honour noted, would not be furthered by imposing on a person "a duty to take steps to control [the conduct of the assailant] … if the person said to owe the duty has not the capacity to fulfil it": at [114]. His Honour continued at [117]:
"Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises (cf Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Public Transport Corporation v Sartori [1997] 1 VR 168). I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind."
44 The Appellant sought to combine that statement with a particular passage from the reasons of this Court in Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659. In that case, the owner of a unit in a residential building had been assaulted and robbed by an intruder, when returning from work in the early hours of the morning. The front door to the building was fitted with a lock, but it was not in use at the time of the assault. As in Modbury Triangle, there were disputed questions of causation, but relevant for present purposes was the question whether the body corporate owed its tenant a duty to take reasonable precautions for her safety whilst on the premises. In relation to the failure to install a satisfactory security system, which was described as liability based on 'non-feasance', Heydon JA stated at [32]:
"The indications that the trial judge was proceeding on the non feasance basis includes passages in which he describes the relationship between the plaintiff and the defendants as 'special' in the Modbury sense of 'special relationship'. They also include the trial judge's quotation of passages in which Hayne J posed and left open the question whether a failure to control entry by criminals onto premises creates liability: the trial judge answered that question affirmatively."
45 After setting out the respective arguments of the parties, his Honour discussed the reasoning in Modbury Triangle, including particularly the question of control. After referring to circumstances in which it is well-established that a duty exists, based on the duty to control the conduct of others, his Honour concluded at [75]:
"In none of these senses can it be said that the defendants here had control over the assailant: they had no power to assert control over him, they could not assert authority over him, they were not expected to be able to control him as of right."
46 Having dismissed the element of control, he considered other bases of a duty of care, including "assumption of responsibility", "special vulnerability" and the existence of a "special relationship". It was the last possible category to which his Honour was directing attention when he made the comments upon which the Appellant presently relies, at [89]. Thus, his Honour stated:
"If new categories of 'special' relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law - indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court. That conclusion is fortified by the fact that Gleeson CJ was not prepared, because it was not necessary to do so, 'to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour': (at 268 [34]). It is also fortified by the fact that Hayne J specifically left the matter open: (at 293 [117]). And it is fortified by Hayne J's decision to reserve consideration of a different question, namely whether an occupier owes a duty of care to control the criminal conduct of third parties by failing to control their access to or continued presence on the premises: (at 293 [117])."
47 Mason P, who generally agreed with Heydon JA, also made remarks on this topic at [6], where his Honour stated:
"In other words, the case falls within the general principles discussed in Modbury Triangle … . And it does not attract possible exceptions discussed therein, relating to (1) 'a high level of recurrent, predictable criminal behaviour' (per Gleeson CJ at 268 [33]); see also Hayne J (at 293 [117]); cf Callinan J (at 300 [143]), … and (2) to occupiers who fail to control access to or continued presence on the premises (per Hayne J at 293 [117]). I agree with Heydon JA's comments about these two possibilities and their inapplicability to the facts of the present case."
48 Hodgson JA also agreed with Heydon JA on this aspect of the case: at [146].
49 By way of contrast, the Appellant acknowledges that there is authority, both in this Court and in the Full Court of the Federal Court, which supports the existence of a duty of care owed by licensees to patrons in relation to the risks of violent behaviour of other patrons. Those decisions include Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 (FC of FCA); Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 (VSCA), and in this Court South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113; TAB Limited v Atlis [2004] NSWCA 322.
50 The Appellant's reliance on Drakulic is misplaced, for a number of reasons. First, it is clear from the authorities which have upheld the existence of a duty of care owed by a licensee to patrons that that conclusion depends not on the existence of a "special relationship" recognised by law, but on the element of control. Although the Liquor Act 1982 (NSW) does not impose a statutory duty of care on licensees, enforceable by patrons, by conferring a power of control and an obligation to exercise that power, the statute provides the basis for a finding with respect to control, which in turn attracts the common law duty of care and informs its content. The relevant statutory provisions may be found in s 2A of the Liquor Act which identifies as a primary object of the statute "the minimisation of harm associated with the misuse and abuse of alcohol (such as harm arising from violence and other anti-social behaviour)", in combination with s 103(1) which empowers a licensee or an employee of a licensee to "turn out, or cause to be turned out of the licensed premises", any person who is intoxicated. The section authorises the use of "such reasonable degree of force as may be necessary" to turn a person out: s 103(3A). In addition, s 125 of the Liquor Act provides:
125 Conduct on licensed premises
(1) A licensee shall not:
…
(b) permit intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises.
51 As already noted, Heydon JA in Drakulic dealt separately with the existence of a duty based on a legal concept of control, and with the creation of a new category of "special relationship" within which a defendant may be liable for the criminal acts of a third party. The present case falls within the former category, while his Honour's comments at [89] were directed to the latter. Accordingly, while his Honour's strictures in relation to an intermediate court of appeal creating a new category of liability may be accepted, they cannot preclude the application of an established head of liability. Nor should any such intention be imputed to the briefer comments of the President. In Oxlade v Gosbridge Pty Ltd (unrep, NSWCA, 18 December 1998, at p 3) Mason P stated:
"It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of an hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises."
52 This passage, together with a passage to similar effect in Chordas, were cited as part of the "generally accepted" legal principles applicable to licensed premises, by Ipp AJA, with whom Heydon and Santow JJA agreed, in South Tweed Heads Rugby League Football Club Ltd v Cole at [153]-[155]. The judgment in Cole was handed down a few months earlier than that in Drakulic, although the hearing in Drakulic occurred a week earlier than the hearing in Cole. The Appellant's argument would require one to infer that the Court in Drakulic was intending, inferentially, to set aside a line of authority which it had so recently affirmed. Not only is this contention inherently implausible, it is based upon a failure to acknowledge that Heydon JA in Drakulic expressly referred to both Chordas and Oxlade, addressing more specifically the primary judge's findings with respect to control of access to the premises. After setting out relevant passages from the comments of Hayne J in Modbury Triangle, Heydon JA continued:
"110. It is therefore necessary to deal with the trial judge's reliance on what Hayne J said, or at least on one answer to the issue which he posed.
111. At the point in his reasoning where he reserved the question of whether [liability could arise from?] a failure to control access to or continued presence on the premises, Hayne J referred to two cases which give guidance as to what he had in mind. These were Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1997] 1 VR 168.
…
113. Cases like the Chordas case are remote from the present circumstances. They deal with a special factual position. They recognise that the duty to take reasonable care to avoid a reasonably foreseeable risk of injury to lawful visitors owed by the occupier or person in control of a restaurant or other outlet for the on-site consumption of alcohol extends to the injuries caused by tortious or criminal acts of other lawful visitors. A justification for this is that it is highly foreseeable that some patrons may either arrive intoxicated or become intoxicated, and a segment of these may become violent. Hayne J suggests that justification lies in a duty of the publican to supervise the behaviour of patrons, to desist from serving them while intoxicated, and in the last resort to eject them. In most jurisdictions there is usually a statutory duty to eject intoxicated persons, and there is usually a statutory defence to criminal prosecution and tortious proceedings if no more than reasonable force is used."
53 His Honour then noted that Club Italia might be treated as an extension of the principle, but was not treated by the Victorian Court of Appeal as falling within Chordas. His Honour continued:
"115. The duty of those who run establishments serving alcohol to avoid injury being caused by drunken patrons to other patrons (and perhaps other persons such as police officers, if that solution to Club Italia , not in terms adopted by the Victorian Court of Appeal, is available) has not in this State be widened into a duty to avoid injury being caused to drunken patrons by reason of their drunkenness: South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113.
116. The authorities referred to by Hayne J do not point to any body of law which would make it right for this Court to answer the question he reserved in a manner favourable to the interests of the plaintiff in this case. To do so would be to change the law, and the law at least in this particular field should only be changed by the High Court."
54 It is clear from this passage that, as might be expected, Heydon JA affirmed the principles accepted in Chordas, Oxlade and Cole (but not extended in Cole) whilst distinguishing those cases from the facts in Drakulic. His Honour made explicit his view that the comments of Hayne J in Modbury Triangle do not cast doubt on that line of authority and finally made it clear beyond doubt that his strictures about extending the common law were not intended to refer to that line of authority.
55 In the present case, the trial judge correctly applied the principles established in Chordas and applied by this Court in Oxlade, Cole and Atlis and accepted in Drakulic. Apart from the contentions with respect to Drakulic addressed above, no argument was presented which would permit or even encourage this Court to depart from that line of authority. Accordingly no error was demonstrated on the part of the trial judge in this respect.