Anderson v Hotel Capital Trading Pty Ltd

[2005] NSWCA 78

CITATION:	Anderson v Hotel Capital Trading Pty Limited [2005] NSWCA 78
HEARING DATE(S):	17/03/05, 18/03/05
JUDGMENT DATE:	18 March 2005
JUDGMENT OF:	Beazley JA at 69; Giles JA at 70; Ipp JA at 1
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	NEGLIGENCE - Common law damages - Employer/employee relationship - Breach of duty of care - Insufficient evidence to establish breach. ND
CASES CITED:	Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18 Kondis v State Transport Authority (1984) 154 CLR 672
PARTIES:	Leif Scott Anderson (Appellant) Hotel Capital Trading Pty Limited (Respondent)
FILE NUMBER(S):	CA 41242/03
COUNSEL:	Dr A Morrison SC/J W Conomos (Appellant) L King SC/W K Dodd SC (Respondent)
SOLICITORS:	Carneys Lawyers (Appellant) Bartier Perry (Respondent)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20438/01
LOWER COURT JUDICIAL OFFICER:	Adams J

CA 41242/03
SC 20438/01

BEAZLEY JA
GILES JA
IPP JA

Friday, 18 March 2005

LEIF SCOTT ANDERSON v HOTEL CAPITAL TRADING PTY LIMITED

Judgment

1 IPP JA: This is an appeal against a decision of Adams J whereby he dismissed the appellant’s claim for damages for personal injuries which, the appellant alleged, were caused by the negligence of the respondent. The appellant’s claim arose out of a robbery that occurred on 9 June 1998 in the early hours of the morning at the Capital Hotel in Kings Cross. At that date, the appellant had been employed by the respondent for about five weeks as a “night auditor” (night manager) at the hotel.

2 The appellant was forced, at gun-point, to assist robbers in stealing money and safety deposit boxes from the hotel. Before leaving the hotel with the property they had stolen, the robbers taped the appellant around the head, mouth, hand and legs, kicked his ribs hard and stomped on his hand.

3 The appellant contended that, in consequence of this occurrence, he suffered from post-traumatic stress disorder (“PTSD”). He contended that the PTSD compromised his judgment and in consequence he became a heroin user as a form of “self-medication”. This led to him taking a heroin overdose on 25 October 1999, as a result of which he suffered significant brain injury. He remained in a coma for some three months and since then has suffered from severe headaches, extreme anxiety and brain damage.

4 At trial, the respondent’s defence was based on three propositions. These were: firstly, the appellant was an accomplice of the robbers; secondly, the respondent had not breached the duty of care it owed the appellant; thirdly, the appellant’s heroin use was not caused by the robbery.

5 The trial judge was not persuaded that the appellant was an accomplice of the robbers. He found, however, that the respondent had not been negligent and, further, the appellant’s heroin use had not been caused by the robbery.

6 The appellant appeals on the following grounds:

(a) The trial judge should have found that the respondent, as the appellant’s employer, breached its duty of care in failing to provide a safe place and system of work.

(b) The trial judge erred in not finding that the respondent breached its duty of care to the appellant by failing to train and warn him “of the dangers of a robbery occurring whilst working in a hotel at night in Kings Cross”.

(c) The trial judge erred in finding that the respondent was not negligent in failing to have that area of the hotel where cash was received kept under the surveillance of armed guards.

(d) The trial judge “erred in his analysis of the evidence of the security experts”.

(e) “The trial judge misapplied the test of causation in finding that the appellant suffered from [PTSD] of significant intensity as a result of the robbery, but that such a condition did not lead to his use of heroin causing catastrophic injuries”.

7 During the course of the appeal, Dr Morrison SC, who, together with Mr Conomos, appeared for the appellant, asserted that the second ground was based on the proposition that the appellant should have been trained how to react when unusual circumstances arise and, in particular, to recognise the risk involved in going to a room at the request of an unidentified caller.

8 The respondent filed a notice of contention to the effect that the trial judge should have found that the appellant was, in fact, an accomplice of the robbers and, further, that his Honour should have found that the appellant did not suffer from PTSD as a result of the robbery.

9 Dr Morrison submitted that at this stage it was only necessary for the Court to determine whether the trial judge had wrongly held that the respondent had not breached the duty of care that it owed to the appellant. This was the only issue canvassed in oral submissions.

10 The Capital Hotel was located at 111 Darlinghurst Rd, Kings Cross. It was described by witnesses as a multi-storey (15 level) accommodation hotel of modern design, in the heart of the Kings Cross area. Other business enterprises were also situated at that address, namely, a Korean bathhouse, a bottle shop, a licensed bar premises, a casino and a TAB.

11 The foyer of the accommodation hotel fronted on Darlinghurst Road. The liquor licence facilities were situated on either side of the foyer. The casino, bathhouse and TAB were part of the same building complex. There was no direct access, however, from any of these enterprises to any part of the hotel proper (that is, the accommodation area).

12 A door from the licensed facilities led to a rear set of fire stairs that were shared with the accommodation section of the hotel. The fire stairs were alarmed and monitored. The rear façade of the hotel complex overlooked Victoria Street. There was entry into the rear of the hotel through a guest car park but this was barred by a solid roller grill door. Three fire stair exit doors along the rear façade “were locked for egress only”. The fire doors had strong door closers with no handles on the outside. They would be difficult to open from the outside, if closed. This configuration contributed to the security of the hotel.

13 The foyer of the hotel was large and open with the reception desk at the rear. The lift foyer was opposite the reception desk. All areas of the entry door to the hotel and the lift foyer were clearly visible from all points behind the reception desk. A flight of stairs ascended from the lift foyer but led only to the first floor offices of the hotel and the restaurant. These stairs did not give access to guest rooms or any other floors of the complex. This layout meant that anyone entering the hotel would have to pass the reception desk and would be visible to any person sitting there. This, too, was a security feature.

14 At about 2.20 am on 9 June 1998, when the appellant was sitting at the reception desk in the foyer, he received a call from room 312 on the third floor. The appellant knew that the third floor was undergoing maintenance and was entirely unoccupied. He also knew that, when guests were registered at the hotel, their names were entered in the hotel computer and if, thereafter, guests telephoned reception, their names and the rooms from which they were calling would be shown on the hotel reception’s telephone screen. Thus, when the call was made to the appellant, he must have known that it was coming from a room that was vacant and not occupied by a registered guest. Nevertheless, the appellant, without demur, requested his co-night auditor, Mr Yoganathan, to go up to the room to check out the complaint about the lights.

15 Mr Yoganathan went up to the third floor and walked towards room 312. The door was open. He saw a masked face peeking around the corner. He attempted to get back into the lift but the masked man kicked him on the side of his head and he fell to the ground. The man kicked him again and taped his mouth and eyes, wrist, lower arms and ankles with adhesive tape. Mr Yoganathan was taken into the bathroom where he was punched and was told, “[t]hink about your family, we won’t harm you. You have to help”. Mr Yoganathan agreed, was dragged to the telephone, told to call “the other guy” and to ask him to come immediately to room 312 and turn all the lights off. This, Mr Yoganathan did. He was then dragged back into the bathroom. He heard a female swearing at him. She told him not to move. He was tied to a commode in the bathroom.

16 The appellant, in response to Mr Yoganathan’s request, turned off the lights, thereby plunging the hotel foyer into darkness. He went up to room 312 and knocked on the door. The door opened and he saw a gloved hand waving him in. He entered. A man grabbed him, pushed him onto the bed and put his knee at the appellant’s back. The man then pulled the appellant up and told him to come with him. The man, armed with a gun, marched the appellant towards the lift. They first went down to level 1 and then walked down the stairs to the ground floor and into the back of the reception area. There, the man ordered the appellant to turn off all alarms. This, the appellant did.

17 The man asked the appellant to give him all the money that was kept in the reception area. The only money in that area was the hotel float and the appellant handed this over.

18 The man asked the appellant to open the safety deposit boxes. The appellant replied that he did not have the keys, only the guests did. The man then selected a number of boxes and put them in a bag that he had with him. Some of the boxes were left scattered on the floor. Some of these were later found emptied, others were found still locked.

19 According to the appellant, the man then saw a safe in the rear of the reception area and instructed the appellant to open it. The safe had a combination lock and the appellant told the man that he did not know the combination. The man then ordered the appellant to take him “to your other safe”. The appellant used his keys to open the door to the room in which the other safe was kept. When they entered the room, the man sprayed the video camera in the room with paint from a can. The “other” safe was of an unusual kind as the locking mechanism was not a combination or key lock system but had padlocks, described by Mr Jennings, the respondent’s expert, as “hanging off the front of it”. The man had with him a power cutting tool, a grinder, and he gave this to the appellant, ordering him to use it to cut the padlocks. This, the appellant did.

20 The safe contained a large number of envelopes containing cash. The appellant and the man put the envelopes in the bag in which the safety deposit boxes had been put.

21 The appellant and the man returned to room 312. The man told the appellant to lie down between the two beds in the room and that is where he was taped and assaulted as I have described.

22 About 40 minutes later Mr Yoganathan, who had been tied up in the bathroom of room 312, freed himself and untied the appellant. The police were called and it was discovered that about $80,000 had been stolen.

23 The trial judge accepted that “it was likely that the robbers had inside information about the hotel”. That is to say, he found that the robbery was an “inside job,” commenting in this regard:

“Of particular significance … is the fact that they had an angle grinder available to them for opening the clasps on the padlocks on the safe which, I am prepared to accept, was unusual. They knew that only two members of staff would be on duty when they made their first moves. It was necessary to cross the downstairs lobby area in order to gain access to the room where the safe was and accordingly, necessary to turn the reception lights off.”

There was other evidence that supported this conclusion.

24 There was evidence that tended to suggest that the appellant was an accomplice to the robbery, but his Honour was not prepared to make a finding to this effect. He said, “[the appellant] was not a party to the robbery and there is no basis for inferring that Mr Yoganathan was such a party”.

25 The finding that it was likely the robbers had inside information about the hotel is not merely a finding that the robbers had information that they gained merely by observing the procedures and lay-out of the hotel. The matters to which his Honour referred, being the robbers’ possession of the angle grinder (which involved knowledge of the unusual locking mechanism of the “other” safe in the locked room), their knowledge that only two staff members would be on duty when they made the first call, and the need to turn the reception lights off are powerful indicators of the robbers having been given information by a staff member with intimate knowledge of the workings of the hotel. This is supported by the choice the robbers made as to the safety deposit boxes to be taken or opened.

26 The judge accepted that the respondent owed the appellant a duty of care to provide a proper place of work and a safe system of work. His Honour referred to the well-known statement by Dixon CJ in Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18 (at 25) that an employer has a “duty to take reasonable care to avoid exposing the employees to an unnecessary risk of injury”. Dr Morrison referred in this regard to the observations of Mason J in Kondis v State Transport Authority (1984) 154 CLR 672.

27 Dr Morrison first addressed the grounds of appeal that the trial judge should have found the respondent was negligent in failing to have the reception area of the hotel kept under the surveillance of armed guards and that his Honour erred in his analysis of the evidence of the security experts.

28 He initially submitted that the security system in fact implemented by the respondent at the time of the robbery involved a security guard or security guards being present in the foyer of the hotel for 24 hours each day. On this basis, he submitted that the respondent negligently allowed that system to lapse by not having a security guard in the hotel foyer at 2.20 am on 9 June 1998 when the robbery occurred.

29 Dr Morrison relied, for this argument, on a security time sheet that indicated that on 9 June 1998 the security guards had gone off duty at 1.30 am whereas, subsequently, security guards had been on duty apparently 24 hours a day. According to the time sheets for the week prior to the robbery, the guards had gone off duty at times at 1.30 am and at other times at about 4.00 am.

30 The problem with this submission is that it was not advanced at trial. Before the trial judge, the appellant did not contend that the respondent had failed to adhere to a security system that, in fact, existed. That is, the appellant did not put a case that the respondent had in place a system whereby a security guard or guards would be present in the foyer 24 hours a day and that, on 9 June 1998, the respondent had not complied with that system. The appellant’s argument at trial was, rather, that the existing security system was defective as it did not involve a security guard being present in the reception area at the time the robbery was committed.

31 Mr Jennings, in his report which was tendered in evidence, said:

“[T]he security guarding process was almost wholly restricted to the licensed bar areas and virtually never entered the foyer or other part of the hotel. In any case it is irrelevant because the security guard process, then as now, stops work when the licensed bars close …”

That evidence was entirely inconsistent with the proposition that the security system in fact adopted by the respondent involved having a security guard in the reception area 24 hours a day. Mr Jennings was not challenged on this evidence in cross-examination.

32 Mr Lambie, the expert called by the appellant, said:

“I am instructed that there was a security guarding presence at the hotel mainly for the administration of the licensed premises. They did however perform a limited ‘floor walking’ presence in the foyer of the hotel and escort money to the safe from the other profit centres within the building when required. At the time of this armed robbery security personnel (1) terminated shift at 0130 hours – 1 hour prior to the incident.”

Thus, Mr Lambie’s evidence, too, did not support the submission now put by Dr Morrison.

33 Dr Morrison drew attention to the evidence of Ms Crisafi who, at the relevant time, was the front manager employed by the Capital Hotel. Although she was uncertain about this issue, she did testify that security guards “would go up on the floor per night”. She said that the guards normally finished “at 7, 7.30 in the morning”.

34 Ms Crisafi was not cross-examined on this evidence which was fundamentally inconsistent with that of Mr Lambie and Mr Jennings.

35 The appellant did not give evidence supporting Ms Crisafi.

36 Mr Yoganathan testified that the time at which security guards finished work depended on what night of the week it was. He said that a task of the security guards was to place the proceeds of bar trading into the “drop safe” in the hotel. This is consistent with Mr Lambie’s evidence that the security guards escorted money to the safe “from the other profit centres within the building” and is supported by the time sheets for the week preceding the robbery.

37 On Mr Yoganathan’s evidence, when the security guards were on duty they were stationed in the reception area near the porter’s desk, save for sporadic instances when they carried out floor checks of the guest levels; at some time after midnight, after they had escorted the cash takings to the hotel safe, they went off duty. Neither Mr Lambie nor Mr Jennings, however, gave evidence to this effect and the appellant’s case was not conducted on the basis now contended for by Dr Morrison.

38 In these circumstances, at the trial no attempt was made (understandably) by the respondent to rebut any inference that might be drawn from the security time sheets or to explain what was set out in them. The trial judge made no reference to them.

39 As the appellant’s case at trial was not put as now contended for and as the evidence, as a whole, does not support the submission, it must be rejected.

40 Dr Morrison then submitted that the location in which the hotel was situated (Kings Cross) was inherently dangerous, and the trial judge should have found that the risk of robberies was such that the respondent should have had a security guard in the reception area at the time of the robbery.

41 An argument to this effect had been made to the trial judge. His Honour rejected it because he accepted the evidence of Mr Jennings, the gist of whose evidence he described as being:

“[T]here were no special risks arising from the fact that the hotel is situated in Kings Cross where, overwhelmingly, criminal activity may be fairly described as ‘street crime’ rather than offences of this kind.”

42 The appellant contended that Mr Lambie’s opinion (that the hotel was at a higher risk of robbery by virtue of its location) should have been accepted by his Honour as “[t]here had been two armed robberies at the hotel between 25 July 1997 and 13 June 1998 before the subject robbery occurred on 9 June 1998”.

43 In his report, Mr Lambie said that police records indicated that, during the period between 25 July 1997 and 13 June 1998, there had been two armed robberies at 111 Darlinghurst Road, Kings Cross. Dr Morrison submitted that this evidence should have alerted the respondent to the risk of robberies within the hotel. But, one of the two armed robberies referred to in the police records must have been the robbery on 9 June 1998, when the appellant was assaulted, and Dr Morrison accepted that the other robbery referred to in the police records related to a robbery in the premises of the adjacent TAB. Accordingly, the existence of these two robberies does not assist the appellant.

44 Dr Morrison then submitted that there was specific evidence of criminal activity inside the hotel in the ten-week period preceding the robbery of 9 June 1998. This included “suspected drug dealing being conducted from a room at the hotel, thefts from guest rooms and staff lockers, attempted bag snatches, unidentified suspicious males roaming the hotel, and activity in unoccupied rooms”. He submitted that this “criminal activity” should have caused the respondent to employ a security guard during the night hours on 8 and 9 June 1998.

45 Again, the appellant relies on Mr Lambie’s report (paragraph 8.6.3). Mr Lambie examined three incident log books of the hotel for the period 31 March to 9 June 1998. These included 15 “security related issues” chosen from 181 entries in the log over the relevant period. The 15 entries are as follows:

“Entry 784 31/3/98 – Description of drug dealer attempting to check-in.
Entry 831 14/4/98 – Staff property stolen, lockers broken into.
Entry 834 15/4/98 – Soliciting for prostitution on accommodation levels.
Entry 843 19/4/98 – Attempted ag-snatch on level 10.
Entry 856 25/4/98 – Car park entry gate broken and unsecured.
Entry 867 26/4/98 – Car park entry gate open all weekend.
Entry 878 30/4/98 – Screaming and fighting on level 13.
Entry 920 21/5/98 – Canteen door left unlocked two nights.
Entry 921 21/5/98 – Video camera, camera and cash stolen from room 907.
Entry 944 31/5/98 – Two suspicious males on levels 2 & 15. (No security on site at all).
Entry 951 1/6/98 – Staff canteen unlocked with unknown key in lock.
Entry 955 3/6/98 – Fire stair doors propped open and stairways blocked.
Entry 961 8/6/98 – Suspicious noises in fire stairs and Rm 314 (unoccupied).
Entry 962 8/6/98 – Accounts and Sales Door left open.
Entry 965 9/6/98 – Armed Robbery subject of this litigation.”

46 An examination of these entries reveals that the appellant’s submissions are not justified by the evidence; they are overstated. No “suspected drug dealing” was “being conducted from a room at the hotel”. There was one instance of staff property being stolen. There was one theft from a guest room. On one occasion there were two suspicious males on levels 2 and 15. As regards the suspicious noises in an unoccupied room, this was said to have occurred on 8 June 1998, the day before the robbery; the noises were reported by the appellant alone. The respondent contended that the appellant had invented the story of these noises as a preliminary step to set up the robbery.

47 Mr Jennings did not regard the entries in the hotel incident log books as alarming. On the contrary, he regarded them as indicating that the hotel security system was working. The trial judge accepted this evidence, as he was entitled to do. His Honour found that Mr Jennings was “clearly right” in describing the criminal activity in Kings Cross as overwhelmingly street crime, rather than offences of the kind committed in the hotel on 9 June 1998. Nothing in the appellant’s submissions in this regard persuade me that his Honour erred in this respect.

48 Dr Morrison drew attention to a remark made by the trial judge that “the plaintiff’s expert does not explain how the presence of a security guard would have been likely to have prevented this robbery; his report merely refers to the deterrent value of a security presence in general terms”. Dr Morrison submitted that his Honour thereby erred as Mr Lambie had testified to the effect that the general deterrent value of a security guard in the reception area would have discouraged the robbers and Mr Jennings had agreed with this proposition.

49 I accept that Mr Lambie and Mr Jennings expressed the view, generally, that the presence of a security guard would discourage robbers. The trial judge himself mentioned that Mr Lambie’s report referred, in general terms, to the deterrent value of a security presence. But, the trial judge’s remarks were directed to “this” robbery. The relevance of his Honour’s reference to this particular robbery was that it was carried out with the aid of inside knowledge that, on all the evidence, was a factor which was extremely difficult to guard against.

50 In any event, the question now being addressed is not whether the presence of a security guard might have prevented the robbery. It is whether the respondent was negligent in not employing a security guard at the time. The fact that a security guard, if present, might have prevented the robbery does not mean that his Honour’s conclusion that the respondent was not negligent in not employing a security guard at the relevant time was wrong.

51 Dr Morrison submitted that the trial judge’s conclusion that he preferred Mr Jennings over Mr Lambie was simply an assertion and his Honour had not explained why he had preferred the testimony of Mr Jennings.

52 His Honour made it plain that he was well aware of the relevant issues in the case. He set out (in [31]) the appellant’s principal contentions in this regard. He accepted Mr Jennings’s testimony that there were no special risks arising from the fact that the hotel was situated in Kings Cross. He accepted Mr Jennings’s testimony that, in that area, criminal activity may be fairly described as “street crime” rather than offences of the kind committed when the robbery in question took place. His Honour said that there was “no particular reason for supposing that the hotel was likely to be subject to an armed robbery, despite the fact that it was a commercial undertaking some of whose customers might well pay in cash”. He remarked:

“We have not yet reached the stage in this country where every commercial premises receiving cash must be under the surveillance of armed guards or else the owner is potentially liable in negligence. In short, I accept the opinion of Mr Jennings that the security systems in place were reasonable.”

53 In my view, his Honour adequately set out the reasons on which his conclusion was based.

54 Dr Morrison submitted that Mr Jennings’s opinion was premised on an assumption that the appellant was “the most likely conspirator” to the crime and this, according to the appellant, “infected his opinion”. I do not accept this submission. Mr Jennings’s opinions as to the risk of armed robbery in a hotel in Kings Cross had nothing to do with his opinion that the appellant was complicit in the crime.

55 Mr Jennings testified that the security and safety system in place at the hotel “was entirely appropriate”. These systems included the configuration of the hotel and the reception area, the way in which persons entering the hotel after hours would have to pass the reception desk, the methods used for locking interleading and other doors, the guest registration and allied security and alarm systems.

56 Mr Jennings expressed the view that it was industry practice to have two night auditors alone in a hotel after ordinary business hours. He testified that many other major hotels in central Sydney (some of which he identified) do not have “a dedicated security presence” at night. Mr Jennings said:

“If the access to the hotel is restricted at such hours and monitored, then I would question what a security presence would achieve. If the general hotel staff are carrying out their tasks properly, then they are deciding who can and cannot gain entry and if [they] have some problem with this, they can easily call police (who in [the respondent’s] case are within a few short minutes away at all hours).”

57 Generally, in my view, the judge was entitled to rely on Mr Jennings as he did. Error on his part has not been demonstrated.

58 I turn now to the ground that the trial judge should have found that the appellant should have been trained how to react when unusual circumstances arise and, in particular, to recognise the danger that might arise from an unidentified caller before going to a room at the request of such a caller.

59 The evidence to the effect that the appellant was not trained how to deal generally with a robbery and, in particular, to ensure that a room was properly occupied was extremely sparse.

60 The appellant was not asked in express terms what training he had received, if any. He said that he had worked as a trainee receptionist for a week “just to learn the ropes of like their computer system”. He gave other vague evidence as to some things he had been told or learned, but none of this evidence establishes what training he in fact did and did not receive. In particular, he was not asked and did not testify that he did not receive training as to what to do when unusual circumstances arose or when a call was received from an unoccupied room.

61 A sentence in Mr Lambie’s report stated:

“I am instructed that the [appellant] received no induction or other training relating to security issues or armed robbery survival skills.”

This sentence was part of a paragraph that dealt with training as to “what to expect in an armed robbery”. No explanation was given as to what was meant by “security issues or armed robbery survival skills”. Mr Lambie also did not testify that the appellant did not receive training as to what to do about unusual circumstances or a call received from an unoccupied room.

62 Ms Crisafi testified that the appellant had received some days of “general training” but was not asked to elaborate on this.

63 Mr Jennings, in his cross-examination, was asked whether training “might have assisted the significance of a call from a room not otherwise known to be occupied”. He replied that training of this kind would not normally form part of a training programme from “a particular security and safety point of view”, but would “become part of the normal job training”. He did not testify as to whether such training was in fact given or not, save for saying “none of the documentary evidence given to me implied that there was any alleged problem with training procedures or lack of them”.

64 Dr Morrison submitted that his Honour accepted that the respondent did not provide the appellant with adequate training. In this regard, it is necessary to set out the judge’s entire findings on this issue:

“The question of training has troubled me somewhat since I think that it would have been reasonable for the defendant to have foreseen the possibility of thieves secreting themselves in an empty room. It is obvious, as it seems to me, that obtaining and copying a key to a room or rooms would be relatively easy and, at all events, gaining access to a room even if it were locked may not be all that difficult. Upon this, there was no evidence, however, and I say no more about it. The point, however, is that I think the plaintiff and, for that matter, Mr Yoganathan, should have been warned about the importance of ensuring that a room was properly occupied by any caller by having the caller identify him or herself and cross-checking with the automatic naming system on the telephone. However, systems do go awry and I do not think that it would be practicable (as the defendant contended the plaintiff should have acted), that someone in the plaintiff’s position would call the police simply because no name appeared against a call. However, this matter was not explored in evidence and is so speculative that it is not useful to consider it further. It is sufficient to say that the plaintiff did not seek to explain what the content of the posited training might be or how it might have avoided the robbery.”

65 The judge remarked that the appellant and Mr Yoganathan should have been warned about the importance of ensuring that a room was properly occupied by a caller before responding to the call. He did not find expressly that that the respondent did not so warn the appellant. In context, I do not think that his Honour made any implicit finding to this extent. It seems to me that the judge was simply expressing a speculative, in passing, thought. Indeed, he stated that the appellant had not sought “to explain what the content of the posited training might be or how it might have avoided the robbery”. That observation indicates that his Honour did not find, as a fact, that any particular training had not been received. In any event, in my opinion, he could not have so found as the evidence did not support such a finding.

66 In my view, the appellant’s arguments as to the lack of training cannot be upheld.

67 In the light of the conclusion to which I have come, it is not necessary to deal with the matters raised in the notice of contention.

68 I would dismiss the appeal with costs.

69 BEAZLEY JA: I agree.

70 GILES JA: I also agree.

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