Wednesday, 3 November 2004
TAB LIMITED & ANOR v WILLIAM ATLIS
Judgment
1 MASON P: I have had the advantage of reading the judgment of Ipp JA, which sets out the primary facts.
2 I am not persuaded that Phegan DCJ erred in concluding that there was a causative breach of duty.
3 The first claimant (TAB) owed a duty of reasonable care to patrons who came to its premises to place bets. The content of that duty extended to the taking of reasonable measures to control rowdy and dangerous patrons whose activities had the potential to threaten the safety of other patrons.
4 The issue on breach is whether the inaction of the manager, Mr Youngman (the second claimant) fell on the wrong side of a line that is difficult to draw. I am unpersuaded that the learned primary judge erred. He had the advantage of seeing all of the witnesses and assessing the evidence in its totality. It was in my view open to him to conclude, as he did, that breach of duty occurred in the failure to take steps towards removing the young men from the premises before matters got out of hand.
5 The men were visibly affected by alcohol, rowdy and offensive. They had been twice warned to behave by Mr Benson; by Therese, the TAB employee; and by Mr Youngman, the manager. On each occasion they complied for a time, before reverting to noisy and offensive behaviour that was obviously concerning to other patrons in the fairly crowded environment of the shop.
6 Mr Youngman realised that their activities constituted a risk of injury to the other patrons. He was admittedly worried "that someone else in the public space would do something irrational". He gave the two men a warning, telling the smaller (and less aggressive) man that if they did not quieten down they would have to leave. Things "settled down" for a time, but Mr Youngman kept the men in view for two or three minutes, obviously because he was unsure of the longer term effect of his warning. Within minutes, the men recommenced their noisy and aggressive behaviour and continually shouted out obscenities. The elderly patron, Mr Benson had to admonish them again. Another minute or two passed. However, the two men started to shout and swear again. It was at that stage that Mr Benson spoke to them firmly. Unfortunately this provoked the fight in which the respondent suffered injury as a result of his intervention.
7 This was the very thing that Mr Youngman was concerned might happen (Tr pp171, 173, 178).
8 Ipp JA has concluded that there was at most an error of judgment on Mr Youngman's part. I do not agree. Or, to put it more accurately, I am not persuaded that Phegan DCJ erred when he concluded otherwise.
9 I move to causation. Mr Youngman had the capacity to require the men to leave and to back up his request by summoning the police, using a call button on his phone if urgency was required. More probably than not, in my opinion, this would have (a) induced patrons not to continue taking matters into their own hands and (b) induced the rowdy young men to desist from violence, probably also leaving the premises. I base these conclusions upon my assessment of the level of rowdiness and capacity for self-control of the two men, having regard to the evidence as a whole. I also take account of what happened after the fight itself erupted.
10 I do not share Ipp JA's concerns based upon this precise scenario not having been put to Mr Youngman in cross-examination. Causation was clearly in issue. The court's task was and is to determine the probabilities in an admittedly hypothetical situation. Mr Youngman's views on the topic might have been helpful, but their absence is not determinative. Judge Phegan found causation in the plaintiff's favour, stating that "the only effective measure facing the [claimants] was removal of the young men". This, in my view, was intended to encompass the various measures to which I have adverted. In any event, the facts support the reasoning on causation I have discussed.
11 I would refuse leave to appeal and dismiss the summons with costs.
12 BEAZLEY JA: I agree with Ipp JA.
13 IPP JA: This is an application for leave to appeal against a decision of Phegan DCJ whereby his Honour entered a verdict and judgment for the opponent in the sum of $91,189.55. The judgment was in respect of a claim by the opponent for damages for personal injuries. The injuries were said to have been caused by the claimants' negligence.
14 Leave to appeal was sought in respect of his Honour's findings as to both liability and damages. It was common ground that leave to appeal should be granted and the appeal upheld in respect of the quantum of damages. The parties were agreed that the amount awarded in respect of damages should be reduced by $20,000. I shall, however, first deal with the issue of liability.
15 For some 19 years prior to 17 April 1999, the first claimant ("TAB Limited"), through its agent, the second claimant ("Mr Youngman") had operated the TAB at Kings Langley, a western suburb of Sydney. The premises in which the TAB agency was located were relatively small in area. The agency had what was described as a "family type atmosphere" and was a relatively sedate establishment.
16 At about 2.00 pm on 17 April 1999, the opponent - who was then almost 55 years old - entered the Kings Langley agency. About 30 customers were there. They included a wide assortment of people, from young mothers with babies to elderly men and women in their seventies.
17 After the opponent had been in the premises for a period of 10 to 15 minutes, one of two young men (who had been sitting together) went to the betting counter and bought a bet or some bets. He returned to his seat and the two men watched the horse races being shown on the television set in front of them. Soon, the men (particularly the larger of the two) began to swear loudly and conduct themselves generally in a rowdy, unpleasant and offensive manner. Both men were under the influence of alcohol. Apparently, the horse they had backed had lost and they were agitated about this.
18 Phegan DCJ described the scene as follows:
"As many as 30 people were congregated in a relatively confined space, certainly in circumstances where the rowdy behaviour of the two young men was sufficient to both disturb and offend a number of the other patrons in close quarters with them. It was in that sense difficult to get away from the two young men who were making so much noise and drawing attention to themselves".
19 The conduct of the two men resulted in an elderly patron of the establishment, Mr William Benson, walking across to speak to them. He admonished them for their rowdy behaviour. They then quietened down.
20 Within minutes the noise increased again. An employee of the TAB named Therese went over to the young men in order to calm them down. The two young men went quiet but again, within a minute or two, became noisy and offensive. They were still watching the races (which were being shown about every three minutes).
21 Mr Youngman, who had been in the office part of the premises, came into the public area and told the smaller man that if they did not quieten down they would have to leave. Mr Youngman thought that the smaller man would be more receptive to reason and would have influence over his companion. The two men did in fact quieten down and Mr Youngman moved back to the doorway of his office.
22 Mr Youngman stood at the door of his office for about two to three minutes observing the men. He said that by then "things were settled" and there was no interaction between the patrons and the two men. He thought that things were under control.
23 Mr Youngman then went through the door to his office. Within minutes, the men recommenced with their noisy and aggressive behaviour and continually shouted out obscenities.
24 Mr Benson again went up to the two men and admonished the smaller man. The larger man said to his friend "keep it cool" or words to that effect.
25 After a minute or two had passed, however, the two men started to shout and swear again and the larger man continually threw up his arms apparently in response to something he had seen on one of the races on the television screen.
26 Mr Benson, for the third time, approached them. According to Mr Youngman, Mr Benson "actually put his face to the other man's face", they were "fairly close; a matter of inches". Mr Benson said, "You were told to be quiet" or "I told you to be quiet". He told them to leave.
27 Mr Benson then moved to the counter and while he was bending over, the larger man stood up and threw a bottle he had been holding at Mr Benson. The bottle struck Mr Benson on his face. The larger man then moved over to Mr Benson and grabbed him around the neck in a stranglehold.
28 The opponent, courageously, came to Mr Benson's aid by moving forward and trying to pull the larger man away. The opponent was struck on the head and attempted to swing the larger man around to avoid the blows. Eventually, a young woman walked into the premises and asked the opponent to let the larger man go. The larger man said, "If you let me, I will walk out. Let me go and I will walk out." The opponent let him go and the two men and the young woman walked out. The opponent injured his shoulder in wrestling with the larger man.
29 Phegan DCJ found that it was "foreseeable in [the] circumstances that if the situation were allowed to continue the point would be reached where a complaint made to [the two men] would meet with a more violent response than had been the case up to that point of time." His Honour concluded that the opponent's intervention and his resultant injuries were reasonably foreseeable.
30 Dealing with the question whether there was a duty of care upon the claimants, Phegan DCJ said:
"I am satisfied that there was a duty on the [claimants] arising out of the physical circumstances of the premises, that is, the relatively confined space, large number of people in a somewhat crowded situation, the volatility of two young men who had been identified as affected by alcohol, combined to impose a responsibility on the [claimants] to ensure that proper care was taken to avert any unnecessary injury to patrons on the premises. That duty extended, if necessary, to intervention involving the removal of the young men from the premises."
31 His Honour concluded:
"In my view, the only effective measure facing the [claimants] was removal of the young men, at a point when it became apparent that efforts to simply quieten them down by way of requests was not going to work. At that point, more drastic action was called for. At the crucial time, that is, at the time he intervened, [Mr Youngman] was on notice of the danger and should have anticipated the risk of something happening along the lines that eventually occurred."
32 The claimants contend that Phegan DCJ erred in finding that they owed the opponent a duty of care. In the alternative they contend that his Honour erred in finding that they breached any duty of care they may have owed to the opponent. Thirdly, they contend that the evidence did not establish that any breach of a duty of care they may have owed to the opponent caused the damage to the opponent.
33 As regards the duty of care question, the claimants relied on Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254. They submitted that the circumstances did not impose on the claimants a duty of care to take reasonable steps to prevent patrons of the TAB from suffering harm by reason of the criminal behaviour of third parties.
34 In Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998) Mason P said:
"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 a 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".