(6) The TAB says that in those circumstances it was at the very least prudent for the plaintiff to have either manually locked the door or to have engaged the electronic door lock when the last customer left the office and that had she done so the bandits could not have entered. Counsel says there was incontrovertible evidence that the plaintiff, contrary to her instructions, failed to lock the front door of the premises through which the bandits gained access at a time when it should have been locked.
67 The TAB challenged the sequence of events as found by the trial judge only in limited respects as set out in para 1.20 on p 13 of the Orange Appeal Book. Counsel for the TAB say that the plaintiff must have commenced the check-mate procedure at 5:43.05, she served one or two customers between that time and 55:44.07, she failed to engage the electronic door lock or manually lock the front door after the last customer left between 17:44.07 and 17:45.05 and it must have been the plaintiff and not the bandits who completed the check-mate procedure as recorded on the TAB's computer at 5:45.05. The bandits then entered the agency between that time and 5:57.27 when the alarm was sounded.
68 The TAB conceded that it owed the plaintiff a common law duty of care. However, the TAB denied that the nature or content of that duty included a duty to protect the plaintiff from criminal acts of third parties.
69 Now it is trite law that being shot by a criminal whether at home, at work or at play is a risk that each member of the community assumes and that merely because one is shot at work does not mean that the controller of the premises or the employer will be liable; see Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 at [62] and following and the cases there cited. What one must look for is a special relationship.
70 The learned Judge said at [53] that the duty which the TAB conceded arose from a special relationship between the plaintiff as an employee of the Employer who was the agent in physical control of the office and the TAB as the principal/licensor of the premises within which the Employer as agent/licensee carried on its business.
71 The learned Judge did not elaborate on that statement. The TAB had, however, put to him in Mr Deakin's closing address (Black Appeal Book page 227):
"Your Honour, could we just remind your Honour of what has now become almost trite law I think, but that absent an employer/employee relationship, which is of course the position of my client, there is no general duty found at law to safeguard the safety of a non-employee from the criminal acts of third parties. The principal authority in support of that proposition is of course the shopping centre case of Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254."
72 Before us, Mr Deakin expanded this by submitting that the Modbury case supports the proposition that special relationships do not include a lessor such as the appellant. An occupier of land does not owe a duty to take reasonable care to prevent injury resulting from the criminal behaviour of third parties.
73 Mr Deakin complained that the learned trial judge noted the concession that the TAB owed the plaintiff a duty of care, did not deal with the submission based on the Modbury Triangle case as to the content of that duty and thereafter assumed that the duty of the Employer and the duty of the TAB was the same and proceeded to deal with breach. Mr Deakin submits that:
"Our starting point is that his Honour was obliged to assess the liability of each of the defendants, and his Honour did not do so. He spelt out the different characteristics of the different duty that each owed, but he did not deal with the liabilities from the obligations of the two defendants separately." (T20-1).
74 Mr McIlwaine said that it must be remembered that in the Modbury Triangle case the extent of the relationships which might qualify a special relationship was not explored. Some examples were given, but the statements made by the High Court were never meant to be exhaustive. Mr McIlwaine acknowledged there was no decided case on similar facts to the present, but that on first principles when a person has the degree of control over the activities of an organisation so that the person who as a matter of law is in charge of the day to day functions of the operation and is bound to observe the first person's directions then there is a special relationship from the first person to that second person and his or her employees.
75 I would accept that submission.
76 In the Modbury Triangle case, Gleeson CJ, Gaudron, Hayne and Callinan JJ all agreed that in that case the occupier of a shopping centre car park owed a duty of care to employees of the shops in the centre but the scope of that duty did not extend to take precautions to protect them from criminal acts. Gleeson CJ said at 265:
"Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle which is that the common law does not ordinarily impose liability for omissions."
77 However, at pp 267-8, the Chief Justice said that there may be circumstances in which not only is there a foreseeable risk of harm from criminal conduct by a third party but in addition the criminal conduct is attended by such a high degree of foreseeability and predictability that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. He found it unnecessary to express a concluded opinion as to whether in such a situation Australian law would impose a duty to take reasonable care and pointed out that Mason P in W D & H O Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-9, indicated a negative opinion on that question and gave cogent reasons for that indication. The possible exception has not been argued in the present case.
78 Gaudron J said at p 270:
"There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control."
79 Hayne J at p 289 pointed out that the problem in the Modbury Triangle case was not whether there was a duty of care such as (as in the present case) was conceded but rather the extent of that duty. He pointed out at 291 that the ability or lack of ability to control the assailants was important in considering the question of duty as well as when considering questions of causation. He said at 293-4:
"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. 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."
80 Callinan J at p 302 made it clear that he considered that:
"For such a duty to arise, there must be something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant."
81 Since the Modbury Triangle case there have, naturally enough, been a series of cases where plaintiffs have endeavoured to make controllers of property liable for the criminal acts of third parties. In Proprietors Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659, a court consisting of Mason P, Heydon and Hodgson JJA, allowed an appeal by the occupier of a strata building against a verdict given against it by a District Court Judge in favour of a plaintiff who had been criminally assaulted because of lack of security of the building.
82 Heydon JA gave the principal judgment. At 676 his Honour said that outside the categories of employer/employee, school/pupil, bailor/bailee, parent and person whom the parent's child might injure, the Modbury case left open only two possibilities for liability: (a) cases where there was such a high degree of foreseeability and predictability; and (b) as noted by Hayne J at 293, that there may be an exceptional case where the complaint was about the occupier failing to control access to or continued presence on the premises.
83 At p 680 Heydon JA pointed out that under the exception possibly left open by Hayne J, "control" meant "right to control" not "control in fact".
84 Heydon JA pointed out at p 89 that 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, what a court would be doing would be to change the law and that is not something that any court other than the High Court should do.
85 With respect, the High Court in Modbury Triangle did not indicate that there were closed categories of special relationship. Gleeson CJ seems to me to have indicated examples of where there was a special relationship and he and the other Justices in the majority made it clear that an occupier or lessor was not in that category. The possible exception mooted by Hayne J seems to indicate that there would be situations where the right to control activities by an occupier or lessor was so great that a special relationship might exist.
86 Indeed, in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Rep 81-636 at [666], Heydon JA himself acknowledged that the High Court had made it plain in the Modbury Triangle case that special relationships do not constitute a closed list of categories nor were the boundaries of any particular category fixed.
87 I should turn to the facts indicating the right to control that the TAB had in the instant case. An agency deed bearing date 27 November 1998 is in evidence between TAB and the Employer. The deed notes that the relationship between TAB and the Employer is that of principal and agent. Clause 5(c) provides:
"The Agent shall not make or allow to be made any structural or any other external or internal alterations or additions to the premises fixtures or fittings without the prior written consent of TAB."
88 Clause 6 of the deed then provides:
"The Agent shall be responsible for the conduct of the Agency in a proper, orderly and efficient manner in accordance with the operating instructions laid down by TAB and communicated to the Agent from time to time … ".
89 Clause 8 made it clear that all moneys received by the agent were the property of TAB and the agent, after deducting proper allowable expenses, was to account to TAB for such monies. TAB under clause 19 was to provide the agent with the necessary facilities and equipment and materials including computer terminal equipment in order for the agency to be run.
90 The TAB did issue, from time to time, security notices. One, No 228, set out detailed guidance for cash office staff including instructions such as not to enter the public space for non essential business during the last 30 minutes of trade and advice as to how to engage manual and electronic locking. There was another series of documents issued by the TAB, one entitled "Defence Against Hold-Up" set out in Blue 167, and another headed "Security Procedures Card" set out in Blue 168.
91 Furthermore, the evidence shows that after the robbery in which Ms Moore was involved, the TAB sent out two officers to inspect the Woy Woy agency, a Mr Jeffs and a Ms Xenda. The senior of these was Mr Jeffs and he advised Ms Chapman that there was no need to take any further precautions.
92 In this situation it seems to me that one can almost equate the TAB with the Employer. This is because the Employer is in no position to take measures to protect its employees without the consent and concurrence of the TAB. It could not install any further security devices or different types of payout windows or door locks without such consent. The situation is analogous to English v Rogers [2005] NSWCA 327, where a hotel utilised the services of a cleaner through the medium of his cleaning company but, despite the intervention of the cleaning company, the hotel in which the cleaner worked was held to be in much the same position as an employer.
93 There is also a cross-appeal by the Employer, but the Employer, naturally enough, did not contest the existence of a duty of care.
94 For the reasons I have given I consider that there was a duty of care on the TAB and it was of the same nature as the duty on the Employer. Accordingly I can pass to questions of breach of the duty.
95 The learned trial judge said at [57] and following, that on the evidence there could not be any doubt that a robbery of some sort was foreseeable and this was confirmed by the robbery of Ms Moore on 27 August 2000. He then turned his mind to whether the existing screen/barrier on the tellers' counter was adequate. As I have said, he noted that the barrier had three holes in it, one at head height to allow the employee and customer to talk to each other, one at counter level to allow money and the betting ticket to be passed through, and one at counter level to allow the customer to insert the betting ticket into the ticket reader.
96 His Honour held at [64]:
"In my view the way that the robber was able to control Ms Moore on 27 August 2000 … showed that the screen/barrier was not adequate to properly separate the employee/s from the customer/s."
97 The Judge said that the plaintiff's case was that the cost of installing bullet resistant glass fitted with an intercom would be $23,619.20 or $5,904.80 per work station. He accepted that costing and he considered it to be reasonable and not prohibitive. He said at [75] that the robbery of Ms Moore revealed that the existing screen was inadequate and therefore it needed to be replaced with a screen which provided complete separation for the safety and protection of the employee. He then said:
"I am satisfied that the proposed screen is a practical and cost-effective alternative to and improvement upon the existing screen. Such a screen would have prevented the robbery of the plaintiff from happening because the robber could not have taken control of her."
98 He continued at [76]:
"I do not have any doubt that, had the proposed screen been installed before 1 October 2000, or had there been two employees on duty on 1 October 2000, or had there been a static guard on the first defendant's premises for the half-hour period before closing time on 1 October 2000, the robbery of the plaintiff would not have happened and she would not have been injured."