Extent of Liability
52 A factor of considerable significance in the present case is the extent and indeterminate nature of the liability that may arise in the case of an escapee. Where or when such a person may commit further offences cannot be determined. Nor can the nature of the offences be identified in advance. The duty, it would appear, is owed to the public at large. It would seem to apply to any offences committed. The Appellant contended that the duty extended for the whole of the indeterminate time for which an escapee may be at large.
53 Mr B. Gross QC, who appeared for the Respondent, suggested that considerations of this character are no longer significant in view of the High Court's rejection of "proximity" as an all embracing identifier of the existence of a duty of care. This misunderstands the basis on which the High Court came to abandon the test which earlier judgments of the Court had adopted. The facts and matters previously considered under the label "proximity" remain material. The extent of liability, and its indeterminate quality, is relevant to the multi-factorial inquiry appropriate when determining novel categories.
54 In order to confine, to some degree, the extent and indeterminate nature of liability, the Respondent restricted its pleading to "suburbs in the region" of what was described as the "Blacktown/Mt Druitt" area of Sydney and to offences of armed robbery. This was based in part on the fact that Mr Hoole's mother's home was in Blackett, just north of Mt Druitt. Schofields, where the armed robbery in issue in these proceedings occurred, is a few kilometres north-east of Mt Druitt and even further north-west of Blacktown. Armed robbery was said to be merely an extension of the burglary offences which Hoole had hitherto committed.
55 "Blacktown/Mt Druitt" is an ill-defined area. Even as so confined, it contains hundreds of thousands of people and tens of thousands of houses and businesses which could be a target for a criminal seeking to obtain money. That the scope of liability is potentially so wide is a factor against the imposition of a duty. (See e.g. Agar v Hyde (2000) 201 CLR 552 at [67]; Sullivan v Moody (2000) 207 CLR 562 at [61]; Tame v New South Wales (2002) 211 CLR 317 at [239]). The indeterminate nature of liability is itself an important factor. (Cattanach v Melchior (2003) 199 ALR 131 at [26]).
56 In any event, the evidence did not suggest that the area within which a duty, if any, is owed, could be confined to any particular area.
57 Mr Hoole gave evidence that he lived in the family home at Blackett until the age of ten. Thereafter he was brought up in a refuge in Bidwell, a suburb just north of Blackett (Black AB 43L). He thereafter spent periods in juvenile institutions and in an adult prison. He was, at different times, in gaol at Goulburn, Long Bay, Parramatta, Parklea and Bathurst. During the periods that he was legitimately out of gaol, he did not stay with his parents in Blackett (Black AB 43L). He did, however, drink regularly at the Bidwell pub (AB 43P).
58 The evidence about where he stayed during the period after his escape was that he first went to Liverpool, (Black AB 38B) and thereafter moved from place to place (Black AB 38X-39C). He was recaptured at Casula, far to the south (Black AB 50E). When he was asked about his evidence in the criminal proceedings for the various offences he had committed while on the run, he described the suggestion that he had escaped because his father was ill and his mother was incapacitated as "excuses" he used "to the Court". "They were just lies", he said (Black AB 37S). He denied that he visited his family during this period (Black AB 38D).
59 The highest his evidence got in this regard was an acknowledgement that the crimes he committed, in what was described by the questioner as the "Blacktown/Mt Druitt/Parramatta corridor", were in an area with which, accepting the word suggested by counsel, he was "familiar", because, he added, "I grew up around there" (Black AB 38T). He knew about the Schofields newsagency because it was close (AB 43X-44B).
60 The factual basis in the evidence for confining the scope of the duty to a particular region was, to say the least, tenuous. Mr Hoole indicated in evidence that his choice of targets was unplanned, even haphazard: "Drive past, see one, do it. There's no thought that goes into it" (Black AB 53H). The Schofields newsagency was such a drive past (Black AB 53L).
61 Mr Hoole had, at an earlier time, breached a parole and been sent back to gaol. During that time he committed one offence in Bidwell. However, another offence was committed far to the south at The Oaks and other offences were committed significantly to the north, in and around Wilberforce.
62 During the period of his escape he committed a large number of offences. Some were in and around Mt Druitt, others in and around Blacktown and to the north. However, many offences were committed elsewhere (see Blue AB 663): a number in an arc through the Hills district to the east, a number south, in and around Liverpool, others further east around Ryde, one as far east as Brookvale and one as far south-east as Campsie. Most of these offences occurred before the robbery at the Schofields newsagency. Why should a duty be owed in the latter case but not in the case of most of the earlier robberies?
63 Nothing in the body of evidence suggests a principled basis by which the duty to potential targets of criminal behaviour can be confined either in terms of region or kinds of offences. An escaped criminal is likely to commit offences anywhere. It may well be that, in some cases, such offending will occur in and about an area with which that offender is "familiar", to use the word which counsel put in the mouth of Mr Hoole. That may be enough to satisfy a test of foreseeability. It does not, however, have so high a degree of foreseeability as to assist the Court to confine an otherwise indeterminate duty of care (c/f Sullivan v Moody supra at [63]).
64 There is no suggestion, in this case, of a specific likely target. Neither the Respondent nor the newsagency at Schofields had any kind of prior connection with Mr Hoole. Nor did the Appellant have any kind of knowledge or means of knowledge, that this victim would be targeted. The newsagency was one of many possible targets in Sydney, or a substantial part of Sydney, where offences could occur.
65 This, in my opinion, is an important factor against the imposition of liability in this case. It is by no means clear to me that the geographic extent of liability for the conduct of an escapee from a prison in rural New South Wales can be confined to Sydney, let alone to a part of Sydney with which the escapee can be said to be "familiar". However, even if so confined, the extent and indeterminate nature of the liability is such that it weighs against the conclusion that a duty to take care is owed to potential victims of crime in such an area for the whole period of an escape, or to any more precisely defined region or time period which would encompass the relevant events.