Beaman v TAB Limited & Anor

[2007] HCATrans 259

[2007] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S13 of 2007

B e t w e e n -

COLLEEN JEAN BEAMAN

Applicant

and

TAB LIMITED

First Respondent

DANNIK PTY LIMITED T/AS WOY WOY TAB

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 11.09 AM

Copyright in the High Court of Australia

MR R.S. McILWAINE, SC:   If the Court pleases, I appear with MR G.P. EDWARDS for the applicant.  (instructed by Peninsula Law)

MR B.W. WALKER, SC:   May it please the Court, I appear with MR R.E. QUICKENDEN for the first respondent.  (Curwoods Lawyers)

MR A.J. SULLIVAN, QC:   May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the second respondent.  (instructed by Church & Grace)

GLEESON CJ:   Yes, Mr McIlwaine.

MR McILWAINE:   If the Court pleases.  Your Honours, a point upon which the Court of Appeal set aside the applicant’s judgment at trial was a point which was not run at trial, there was no cross‑examination on the matter, there was no submissions put to the trial judge and it was also a matter that was not the subject of the notice of appeal to the Court of Appeal.

GLEESON CJ:   But was it argued in the Court of Appeal?

MR McILWAINE:   I will take your Honours to the argument.  There was some faint argument about the matter but there was reference to the point in the second respondent’s written submissions and it was those submissions that Justice Young, who wrote the opinion for the majority, picked up on after the appeal had been heard and during the period the judgment was reserved.

The point was this, the plaintiff at trial worked in a TAB and the TAB was divided into two areas, one area a public area and the other area is what was called the work area, the non‑public work area.  Those two areas were divided by a counter, a door and a screen but the screen had a number of large oval openings in it and was not bullet proof.  In the last half hour of closing two bandits entered the TAB and were able to take control of Mrs Beaman by one bandit pointing a gun through this large opening in the screen which was at about head height and demanding that she hand over the key to the locked door, which she did, of course, because she was threatened with this gun.

The case run at trial was that what should have been installed in the TAB, so far as the screen was concerned, was a bullet‑resistant screen that did not have the large oval opening but instead had provision for a swinging tray so that tickets and money could be passed between the operator and the customer.  If I can take your Honours firstly to the judgment of the trial judge.  The trial judge at application book 18, line 40, sets out clearly what the plaintiff’s case was run at trial.  On page 19 of the application book he says:

The plaintiff claims that the defendants should have provided/installed a screen/barrier to completely separate the employee/s on the tellers’ side of the tellers’ counter from the customer/s on the public side of the counter – this screen/barrier should have been [made of] bullet-resistant glass and should not have had a hole in it.

He then sets out what the defendants’ case was and the defendants’ case – that is both defendants – was that:

as the duty was one to take reasonable care to prevent a foreseeable risk of injury, the [existing] screen/barrier as provided was reasonable –

and that it was not practical and cost effective to install a barrier of the kind that the plaintiff said should be installed.  That clearly defines what the case was that was run at trial.  Your Honours, at page 22 of the application book, line 40, his Honour repeats what the plaintiff’s case was:

The plaintiff’s case is that the screen/barrier should have been bullet‑resistant glass and should not have had a hole in it –

and he repeats the defendants’ case was that the existing screen “was adequate” and that the operations manager, the second defendant, “had assessed the screen” and “had decided that nothing needed to be changed.”  His Honour then on application book 24, after considering the evidence that had been admitted at the trial said:

In my opinion the existing screen/barrier was inadequate to properly and completely separate the employee/s from the customer/s –

He goes on and finds that the assessment by the operations manager “was incorrect”.  His Honour then further discusses the cost aspects and the like.  Then on page 26 of the application book says:

76.I do not have any doubt that, had the proposed screen been installed . . . the robbery of the plaintiff would not have happened and she would not have been injured.

77.I am satisfied that each defendant breached the common law duty of care that it owed to the plaintiff and that the plaintiff’s injuries and consequential disabilities resulted from that breach of duty.

His Honour had clearly in his judgment identified what the respective cases were.  He had considered the evidence in relation to that case.  He had found that the existing screen was inadequate and explained why, had found that the robbery would not have occurred and the plaintiff would not have been injured had there been the kind of screen, the plaintiff’s case was, that should have been in place.  He dealt with the matters of duty, breach and causation.

The matter went to the Court of Appeal.  In the notice of appeal the issue of causation as later found by Justice Young was not subject to a ground of appeal.  What happened in the Court of Appeal was this, your Honours – I will come back to Mr Justice Giles’ judgment in a moment because he did not find any fault in the findings of the trial judge.  Justice Bryson did not deliver it himself much by way of reasons, apart from agreeing with Justice Young.  At application book 85 Justice Young says this:

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.

So his Honour is finding no error in the trial judge’s findings in relation to duty.  On page 86 his Honour then considers the question of breach.  He notes that:

the learned trial judge found three matters to constitute breach of duty:

(a)failing to provide a bullet proof screen/barrier –

His Honour then at application book 87 at line 40 says:

During the last half hour the instructions were that the operator was to remain in her secure area . . . in her secure area behind a bullet proof screen in the last 30 minutes of trading she would have been protected.

This incident happened in the last 30 minutes of trading.  Justice Young goes on at application book 88, line 10:

The central point remains that there was the capacity to reduce the risk considerably in this building, and indeed to prevent the present incident occurring by the expenditure of a little over $22,000 in a profitable trading business.  I see no fault in the trial judge’s approach on this aspect of the case.

So his Honour is finding no error on the part of the trial judge as to the question of breach.  He then says:

105I now need to consider causation.

106Mr Deakin submits that the learned judge does not deal expressly with this issue.  This, unfortunately, is correct.  He does state that the plaintiff’s injuries resulted from the breaches of duty of care owed by each defendant.

Your Honour, we take issue with that.  His Honour, the learned trial judge, expressly explained why he found breach and expressly explained that it was because of that breach that the robbery occurred and the plaintiff was injured.  Indeed, his Honour Justice Young had said on the page before that “in her secure area” if she had been “behind a bullet proof screen in the last 30 minutes of trading she would have been protected.”

GLEESON CJ:   Just a minute, these submissions that are outlined at some length on pages 88 and 89, were they submissions made in writing or in oral argument or both?

MR McILWAINE:   In writing, your Honour.

GLEESON CJ:   They were made before the hearing?

MR McILWAINE:   Yes.

GLEESON CJ:   You had an opportunity to deal with them at the hearing?

MR McILWAINE:   At the hearing of the appeal, yes.

GLEESON CJ:   I thought you were saying that you were denied procedural fairness in the Court of Appeal?

MR McILWAINE:   To this extent, your Honour, and I will take your Honour to what was said in the Court of Appeal in a moment, but there was very little said about those submissions.  The most that the argument in the Court of Appeal dealt with other matters and I will take ‑ ‑ ‑

GLEESON CJ:   I am sorry, the submissions that are set out on pages 88 and 89 were in fact made before whoever argued the case for your side in the Court of Appeal made the submissions?

MR McILWAINE:   Yes, your Honour.

GLEESON CJ:   So they were there to be dealt with?

MR McILWAINE:   They were there to be dealt with but they did not play much of a role at all, if any, during argument in the Court of Appeal.

GLEESON CJ:   What is the significance of that?

MR McILWAINE:   Your Honour, because of the way the trial had been run and because of the way the appeal was run those submissions did not seem to be particularly significant and it was not until the reserve judgment came down eight months later that they had obviously become significant to Justice Young in the meantime.

GLEESON CJ:   But are you saying you were not given a proper opportunity to deal with it in the Court of Appeal?

MR McILWAINE:   What we are saying, your Honour, is first of all we did not have an opportunity to deal with them at the trial.

GLEESON CJ:   I understand that point.  I do not have any difficulty understanding an argument that these submissions should not have succeeded in the Court of Appeal because of something to do with the way the trial was conducted but I thought you were making a different point.  I thought you were making a proposition that there was something about the way the Court of Appeal argument was conducted that meant the Court of Appeal should not have dealt with the submissions.

MR McILWAINE:   Your Honour, we do make that argument.  That is not as strong as the argument in relation ‑ ‑ ‑

GLEESON CJ:   How could the Court of Appeal have failed to deal with these submissions?  It might have been that the proper way to deal with them was to reject them but it could not ignore them, could it?

MR McILWAINE:   Your Honour, I will have to take you to what happened in the Court of Appeal, but during the course of the argument in the Court of Appeal those particular submissions did not feature in any significant way, and I appreciate they were there ‑ ‑ ‑

GLEESON CJ:   We often hear arguments in the High Court in which people go once over very lightly subjects that are dealt with in their written submissions.

MR McILWAINE:   The point is they should not have been the subject of the appeal, in any event, because they were not subject to the notice of appeal.  I can anticipate your Honour saying, “Well, did you object to them?”

GLEESON CJ:   Yes, that is the next one.

MR McILWAINE:   That is the next one and the answer to that is that, no, we did not, but we did not because it did not seem significant.

GLEESON CJ:   If you had objected to them the next thing would have been there would have been an application to amend the notice of appeal.  If you had said to the Court of Appeal, “We’ve read the written submissions for the appellants and we see they make a big fuss about causation.  There’s no ground on causation in the notice of appeal”, then the appellants would have said, “We seek leave to amend our notice of appeal.”

MR McILWAINE:   Yes, and we would have also, of course, said it was not a matter dealt with at trial.  I accept that imperfection, your Honour, but the point is, the way the appeal ran it just was not a feature.  Perhaps I should take you directly to the relevant argument in the Court of Appeal so that your Honour can see it within the setting that I ‑ ‑ ‑

CALLINAN J:   What do you mean, the relevant oral argument?

MR McILWAINE:   Yes.  Your Honour, Mr Deakin on page 11 about line 30 said:

My friend says I should draw your Honours’ attention amongst the provisions of exhibit 2, which is the sensible instruction to employees that when covered by a firearm at a hold‑up, instructions on the next document make it even clearer – you are to follow the robber’s instructions and not do anything foolish that may endanger your life.

On the next page, page 14, Mr Deakin said:

A man she described as wearing a balaclava, was carrying a gun and poked it through a semicircular hole and she, in accordance with the instructions given, complied with his request that she open the office door, which she did; let him in, into the office area; she was overpowered –

Then we get to Mr Sullivan’s submissions.  Firstly on page 50 he said this:

Causation in these issues required to have a starting point, the plaintiff’s injuries were caused by the criminal act of a third‑party, that is what caused the plaintiff’s injury . . . 

How can the court be satisfied that the steps recommended would have prevented it . . . 

Because the conduct is so unpredictable and uncontrollable, it is very difficult for the plaintiff to prove adequately that the steps would have prevented it . . . 

Why couldn’t he lure her out under a subterfuge and say, “I need some help out here.  Can you give me some assistance”.

Again, causation, we submit is a further hurdle and a further reason why the trial judge was wrong, bearing in mind this is in the last 30 minutes when they are not allowed to go outside.  On page 66 he said:

it is a well settled law as a matter of causation it is incumbent upon a plaintiff to demonstrate on the balance of probabilities that had the negligently admitted acts in fact been carried out, the harm would have been prevented.

Your Honour, they are the references.  That was the argument that was put in the Court of Appeal.  What Justice Young did was to pick up on that passage in the written submissions where it was suggested that no one in their right mind, even if they were behind this bullet‑proof ‑ ‑ ‑

CALLINAN J:   I think we understand that point.  Assume we were against you on that, assume we were for present purposes, where did the Court of Appeal go wrong?  Where did Justice Young go wrong?

MR McILWAINE:   He went wrong for a number of reasons.  Firstly, we say he went wrong on the way he ruled on the issue of causation any way.

CALLINAN J:   I understand that.  What was wrong with what he did with causation?

MR McILWAINE:   What he did, your Honour, was he accepted the breach was the failure to have the bullet‑proof screen and he accepted that the plaintiff would have been protected behind the screen.

CALLINAN J:   But that it would not have deterred a robbery?

MR McILWAINE:   No, that she would have still given over to the armed robber.

CALLINAN J:   I must say that a mere piece of glass between me and an armed robber – perhaps I am very craven – that I might not be altogether prepared to rely on assurances that it is bullet proof.

MR McILWAINE:   Your Honour, the trial was run on the basis that it was bullet‑resistant glass.  There was never any issue at the trial that if you put the appropriate screen there the person working behind the screen would not be out of harm’s way, would not be safe.

CALLINAN J:   They issue soldiers with bullet‑proof vests now, but I think they still try to keep out of the line of fire.

MR McILWAINE:   Yes, but the point remains that at trial there was no issue at all that if the appropriate type of security screen – that is, the bullet‑resistant glass with no holes – had been in place then the person working behind it was safe.  Justice Giles makes that point in his reasons at page 60 of the application book.  He notes that Justice Young finds that breach on the part of the employer and TAB.  Then 61 at 20:

The relevant breach of duty is failure to provide a bullet‑proof screen, a screen without an opening through which an armed robber could threaten the staff member behind it.  It is a mistake to limit the breach (as the trial judge’s reasons tended to do) –

and we do not accept the trial judge did and in our written submissions we have dealt with that for the period after the Moore robbery.  He then goes on to describe:

I do not see why the existence of a bullet‑proof screen would not alter the reaction of a staff member behind it to an armed robber.  After all, the point of the screen is to provide protection from the threats of such a robber.

That is the way the trial was run.  If that screen was there, if the screen that the plaintiff had asserted should have been in place, which his Honour found should have been, and the other screen was inadequate, then the plaintiff would have been protected and she would not have been hurt.  That was the basis upon which she received a substantial verdict at trial.  Then this other matter arises which was not raised at the trial.  I might say as well, as a matter of pure logic, the finding by Justice Young, we would submit, ought not stand in any event, as we point out in our written submissions.  His Honour at page 90 at line 40 says:

There is nothing to show that a person behind a supposedly bullet proof screen when threatened by an armed man, would do otherwise than to give in to the armed man.

So we make the point that, firstly, it was recognised that his Honour’s use of the word “supposedly bullet proof screen”, the evidence was that, as I have said more than once, if the screen had been put in place it would have protected the person behind it.  It was not a question of supposedly.

CALLINAN J:   The bandit might not have known it was bullet proof.  He might have fired a couple of practice shots to test it.  That would be a pretty terrifying prospect, would it not?

MR McILWAINE:   Yes, because it was bullet resistant the bullets would not have got through.  That is the whole point of putting the special security arrangements in place, to stop the very thing that happened and it is on that basis, your Honours, that we submit that there was a miscarriage of justice in the Court of Appeal by making the finding or the ruling on causation which was not on trial.

GLEESON CJ:   Thank you, Mr McIlwaine.  We do not need to hear you, Mr Walker and Mr Sullivan.

In our view, this case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded the interests of justice require it.  The application is dismissed with costs.

MR McILWAINE:   If the Court pleases.

GLEESON CJ:   We will adjourn for a short time to reconstitute.

AT 11.32 AM THE MATTER WAS CONCLUDED