Cheng Fung Pty Ltd v Heloui - [2005] NSWCA 222

NEW SOUTH WALES COURT OF APPEAL

CITATION: Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222

FILE NUMBER(S):
40482/04

HEARING DATE(S): 24 June 2005

JUDGMENT DATE: 15/07/2005

PARTIES:
Cheng Fung Pty Ltd - Appellant
Michel Youssef Heloui - Respondent

JUDGMENT OF: Mason P Handley JA Giles JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 11530/01

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

COUNSEL:
C S Leahy SC & J H Gibson - Appellant
J Sharpe & J de Greenslaw - Respondent

SOLICITORS:
Hunt & Hunt - Appellant
Fallon Safetly Lawyers - Respondent

CATCHWORDS:
Negligence - employer's duty of care to provide safe system of work - avoiding exposure to unnecessary risk of injury - robbery of pizza delivery driver - order by mobile phone - new customer - caller rang again - call back by employer unanswered - whether employer should have called off delivery - evidence of recognised risk of robbery and circumstances of suspicion - including mobile phone orders from new customer when call back unanswered - finding of negligence open to judge. D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40482/04
DC 11530/01
MASON P
HANDLEY JA
GILES JA
Friday 15 July 2005

CHENG FUNG PTY LTD v HELOUI

Judgment

MASON P: The judgment of Giles JA sets out the facts in detail.
His Honour’s patient archaeology has exposed the layers of reasoning of the primary judge and brought the critical findings to the surface. Liability ultimately turned upon the conclusion that Mr Cheng ought in the circumstances to have aborted the delivery because he was unable to raise the person who ordered the pizza by calling him back on one of the mobile phone numbers recorded on the delivery docket. Each number had originally been typed into the computer that produced the docket, one number being provided orally by the caller, the other being displayed on the phone system as that of the mobile phone used to make the incoming call.
The evidence led at trial does not disclose whether the number provided by the caller was a genuine one. I would infer that it was not. The caller must have known this.
It is possible that the caller would have realised that telecommunications technology enabled the pizzeria to know the number of the mobile phone that was actually used. Since however this issue was not explored in evidence or submissions I say no more about it. It required proof to turn the possible into the probable and middle-aged judges are unlikely to be au fait with what may be commonplace for the younger generation.
The evidence is also silent as to the means whereby Mr Cheng satisfied himself that the second call, enquiring about the delayed delivery, came from the man who had made the first call. No one suggested that technology assisted this linking. It is more likely that Mr Cheng had a small bundle of outstanding orders and that his conversation with the man who made the second call enabled him to realise that this was an enquiry about the particular delivery. In the upshot, it was common ground that the same person spoke to Mr Cheng on each occasion.
I am not troubled about the conclusion as to causation. In Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 Mason JA said (at 1086):
The injury which the plaintiff sustained, although occasioned by deliberate human intervention, was the outcome of the very risk against which it was the duty of the defendants to safeguard the plaintiff as their employee. If, as was the case, it was the existence of that risk of injury which called for the exercise of care and the taking of precautions by the defendants, then the defendants’ failure to take care may properly be regarded as the cause of the injury which occurred when the risk became an actuality.
Mr Cheng’s failure to abort the delivery meant that the employer had failed to prevent the employee going in harm’s way (cf Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 292[110]).
It is the breach issue that has troubled me. The appellant acknowledges its duty of care, while correctly emphasising that it must be shown that its omission was unreasonable in all of the circumstances. Want of care is not shown merely by positing with the benefit of hindsight that something could have been done that would have avoided injury (Tame v New South Wales (2002) 211 CLR 317 at 330[8], 332[14], 354[102]). It would also be fallacious to reason that every action that increases a risk of injury is unreasonable and negligent (The Local Spiritual Assembly of the Baha’is of Parramatta Ltd v Haghighat [2004] NSWCA 21 at [65]-[69]).
Where the duty is clear, as here, the court must determine whether reasonable members of the community in the defendant’s position would think the risk sufficiently great to require action of the type that was omitted in the particular case (cf Tame at 354[102]). As McHugh put it (ibid):
This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge.
The evidence, including that of Mr Cheng (Black 95-8), showed that the respondent was being sent out by his employer at night into an area where there was a known risk of robberies. There is, however, force in Mr Cheng’s observation that drivers were unlikely to have much money on them (Black 107). The employer was not required to provide an armed escort or otherwise be the insurer of the respondent’s safety.
The High Court recently observed, in Czatyrko v Edith Cowan University [2005] HCA 14, 79 ALJR 839 at [12] (citations omitted):
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.
The touchstone of reasonableness cautions against treating any failure to achieve best practice as itself negligent. It is for that reason that I find little assistance in those parts of the evidence of Mr Jennings urging that this and that should have been done. Such “evidence” reads like a closing address by plaintiff’s counsel rather than the building blocks of testimony demonstrably based on expertise.
At the end of the day it is the evidence of Mr Cheng and Mr Maggar that leaves me unpersuaded as to error in the trial judge’s evaluative conclusion.
As Giles JA demonstrates, Mr Maggar gave clear evidence to the effect that people in this industry working in this location recognise that it is an inappropriately dangerous practice to allow a pizza ordered by mobile phone to be delivered to an address (even a residential address) where the pizzeria has not called back to verify the order. Mr Cheng would not agree that he had been careless in the particular situation, but his evidence provided a degree of corroboration in this regard. It accepted that there are some types of order (eg from a public phone box or for delivery to a park) where the risk of robbery should not be taken. Those cases are analogous to the mobile phone scenario in that they involve an order that is not traceable to a residential address.
In light of this evidence there was proof of a lack of reasonable care to avoid a real risk of injury by the minimal cost of aborting the delivery by a phone call to the respondent.
I was at first attracted to the argument that the second phone call provided confirmation that was not materially different from the safe practice advocated by Mr Maggar. But on analysis, the second call rose no higher than the first, in that it was consistent with the caller remaining anxious to lure the delivery man to the appointed spot. If Mr Cheng had himself raised the man who placed the order by phoning him on one of the recorded numbers this would have conveyed to the would-be malefactor that the pizzeria had a record of a genuine number for a mobile phone in possession of the caller. This explains why I was at pains earlier in these reasons to point out that we do not know whether the caller realised that the pizzeria had a trace on the mobile phone actually used to place the original order.
For these reasons I agree that the appeal should be dismissed with costs.
It would be quite wrong to read this decision as endorsing any general proposition about failure to check in the manner indicated the provenance of an outside delivery ordered by mobile phone. Similarly placed plaintiffs in other cases may not have access to the unanswered evidence of a virtual insider like Mr Maggar. I can also envisage situations where it would be reasonable to treat an order from a mobile phone at face value, eg when the point of delivery was a safe public place.
HANDLEY JA: I agree with Giles JA.
GILES JA: The respondent was employed by the appellant as a driver delivering pizzas. He was held up and robbed when making a delivery in response to a bogus order. He suffered psychiatric injury. McLoughlin DCJ held that the appellant’s system of work had unreasonably exposed the respondent to the risk of injury, and awarded substantial damages. This was an appeal as to liability; there was no appeal as to damages.
Background
The appellant was a company of Mr Bing Cheng, known as Ken, and his wife Josephine. In about August 1999 it took over a Pizza Haven franchise at Bankstown. The business was open seven days a week, starting at 4.30 pm and on Mondays to Wednesdays and Sundays going until 11 pm and on other days until 12.30 am. Mr Cheng and his father worked in the business full time, on the less busy days there would be two kitchen hands and one or two drivers, and on the busy days there would be more staff.
Pizza orders for delivery were mostly placed by phone. The phone number of the caller was displayed on the phone system at the pizzeria. Mr Cheng or one of the kitchen hands would respond to any inquiry from the caller, and if a pizza was ordered would ask for a phone number and a delivery address. The phone number as displayed and the phone number and address given by the customer would be typed into a computer, with particulars of the order. An invoice would be printed out, one copy remaining at the pizzeria and the other being taken by the driver and providing him with the delivery address, the amount of money to collect and a phone number or numbers to call if necessary.
Drivers had money with them, but they were told to leave money in excess of about twenty dollars at the pizzeria, by putting it in a deposit box or giving it to Mr Cheng or his father. Two or three deliveries might be made in a trip, so that after a second or third delivery the driver could have quite a bit more money than when he left the pizzeria. The amount taken from the respondent, $80 to $100, was probably representative of the money carried by drivers, but it could be more if the order(s) were large.
The respondent began as a driver with the appellant in the latter part of 2000. He worked six days a week. He was then aged in his forties, and had come to Australia from Lebanon in 1997 and, after returning to Lebanon, had migrated in 1999. He had trained as an architect in Lebanon, but his qualifications did not entitle him to practise in Australia and he took a variety of jobs and undertook studies after coming to Australia.
For his delivery job the respondent provided his own car and mobile phone, and there was ready phone communication between the respondent and the pizzeria. According to the respondent Mr Cheng rang him “all the time”, for example, if the respondent was late in making a delivery, and sometimes the respondent rang the pizzeria, for example, if he could not find a delivery address. As later appears, Mr Cheng told drivers not to resist if they were held up, but the respondent said he did not remember being told that.
The delivery and robbery
On 7 March 2001, a Wednesday, Mr Cheng took a phone call at 9.36 pm in which the caller, a male person whose voice he described as “not old” and “not too young”, ordered a pizza and some accompanying foodstuffs. The display showed a call from a mobile phone 0404 869 833. The phone number given by the customer was the mobile phone number 0404 896 832. The delivery address, as recorded by Mr Cheng, was 586/8 Punchbowl Road, Punchbowl. The invoice when printed out was headed “New Customer”, an automatic function meaning that the phone number given by the customer was not already in the computer’s database as a customer’s phone number.
In due course the respondent set off with the pizza and foodstuffs, one of three deliveries for the trip. The order in question was the third delivery. The respondent thought that the address meant a home unit number 586 at number 8 Punchbowl Road, and went to that part of the street. It was a house. Thinking that the numbers should be reversed, he drove along Punchbowl Road to number 586. On the way he was phoned by Mr Cheng.
Back at the pizzeria, after the plaintiff had left to make the delivery and about half an hour after the initial phone call, Mr Cheng received a phone call from a person whose voice was similar to that of the male person who had ordered the pizza. Mr Cheng had no recollection or record of the phone number on the display. The caller asked where his pizza was. Strangely, there was no evidence of Mr Cheng asking which order was the subject of inquiry, or evidence explaining why the call and the initial phone call were linked, but it was common ground that they were. Mr Cheng told the caller that the driver was on the way and shouldn’t be long. Mr Cheng phoned the respondent, then on the way to number 586, and told him that the customer had rung to complain that the pizza was late. The respondent explained the difficulty with the address, and said that he was on the way to number 586.
Mr Cheng then rang one or maybe both of the numbers on the invoice. He could not remember which number he rang, or whether it was both, but thought it was only one. He received the message that the mobile phone was switched off.
Mr Cheng did not phone the respondent once more; he did not tell the respondent that he had tried to call the customer and had received no answer.
At this point it is necessary to deal with two matters in the account of what happened. Unfortunately, the judge’s findings as to what happened were less than full, and in an important area there was a misunderstanding of the evidence.
First, it was submitted on behalf of the respondent that, before he was phoned by Mr Cheng, the respondent phoned the customer “to be sure they want it”. In my opinion, it is plain from the answer on which the submission was based, and from consideration of the respondent’s evidence as a whole, that the respondent phoned the customer only after arriving at number 586, see below. The evidence on which the respondent relied related to that occasion.
Secondly, it was submitted on behalf of the respondent that, before the customer rang to ask where the pizza was, Mr Cheng phoned the customer. The submission had two bases, one an uncertain and non-responsive reference by Mr Cheng to ringing to check the number “before the guy ring me about his pizza, where’s his pizza”, and the other being the respondent’s evidence of what he was told in the phone call from Mr Cheng.
As to the first basis, Mr Cheng was being asked in chief about his general procedure; the evidence included -
“Q. After you had recorded the order in the way you’ve described, and before the pizza was delivered, did you telephone the numbers that you had recorded to see whether or not the order was valid or did you check the number at all or did you simply make the delivery?
A. I make the delivery then maybe I ring the number I think. I ring the number.
Q. When did you ring the number?
A. I can’t remember. Its before the guy ring me about his pizza, where’s his pizza.
Q. No, this is generally, … “.
It is apparent more generally that English was not the first language of Mr Cheng, and that at times communication went astray. Save as mentioned below, this evidence was not taken up in cross-examination.
As to the second basis, the respondent’s evidence included that in the phone call from Mr Cheng he was told that Mr Cheng had tried to call the customer and had received no answer. In his evidence prior to the luncheon adjournment the respondent said that Mr Cheng ended his phone call by telling him “its okay because they wait for you and when I arrive to … “, and that there was no further conversation. After the luncheon adjournment the respondent said that, as well, Mr Cheng told him that he had “tried to call them and no answer”. When taxed in cross-examination with the addition, the respondent said he had not remembered it before lunch but had remembered it afterwards.
Mr Cheng said nothing in chief about the phone call back to the customer. In cross-examination it was put to him that he phoned the respondent, and the evidence continued -
“Q. And then you rang the customer back, is that right?
A. Yeah.
Q. Well --
A. Or I can’t remember, I – what time I can’t remember.
Q. So you might have rung the customer before you spoke to Michel?
A. Yeah, could be. Can’t remember.
Q. And you might have rung both the numbers?
A. Maybe.
Q. So before you rung Michel you might have rung both of the numbers but you got no answer?
A. No both number you know, I can’t remember. I can’t promise. If anything I’m not a hundred per cent sure I can’t say yes.
…
Q. And then you told him that you’d tried to ring the customer but hadn’t been able to get through?
A. I can’t remember this.
Q. You might have done that?
A. I can’t remember so not sure.”
The judge said -
“I accept that Mr Cheng told the plaintiff that he had made a phone call to a provided mobile phone number notwithstanding his latter, perhaps, attempt to retract that evidence and withdraw it. I accept he did in fact make the phone call and there was no answer and I accept he did not convey that fact to the plaintiff. I accept Mr Cheng should have told the plaintiff of that fact and told the plaintiff that he, himself, had phoned, got no answer and the pizza delivery should be aborted as there was potential for the risk of injury in these circumstances from assailants of some unknown description.“
There was here a misunderstanding of the evidence. Mr Cheng did not deny that he rang the customer back; what was uncertain was whether he did so before or after his call to the respondent. On the evidence as a whole, in the manner he conducted the business Mr Cheng had no reason to phone the customer before he received the customer’s call asking where the pizza was. It was not put to him, but he did have reason to ring the customer back after checking with the respondent, to confirm that the driver was on the way. Although the judge accepted the respondent’s evidence generally, he can not have accepted the evidence that in the phone call from Mr Cheng the respondent was told that Mr Cheng had tried to call the customer and had received no answer. On a correct view of the evidence, in my opinion, Mr Cheng rang the customer back after his call to the respondent. But he did not phone the respondent again and tell the respondent that his call to the customer had not been answered.
Returning to the respondent, he arrived at number 586. It was a three storey block of home units, described by the respondent as “medium” quality. After parking, he phoned in turn the numbers on the invoice, receiving no answer. What was meant by no answer was not explained. He said that he did this “to be sure that people live in this house”; at another point, “to be sure for the people before I go in the building” and “to be sure this address was correct”. He said that he was not troubled or worried by the fact that there was no answer.

The respondent went into the building and to unit 8 on the top floor. He knocked on the door. It was answered by a man in pyjamas who appeared to have been sleeping, and who said he had not ordered a pizza. The respondent went back downstairs. As he got to the ground floor, and before he went out the main door, someone behind him said “come with me”. He looked behind him and saw a man with a handgun. He was afraid, and went with the man out the back door to the parking area. Three other men were there, two with guns. The men took the money the plaintiff was carrying, about $80 or $100, and his mobile phone, and left.
The respondent was understandably distressed. He went back into the building, and was assisted by one of the occupants. The police were called, and the respondent phoned Mr Cheng and told him what had happened. Mr Cheng came to the address. It is unnecessary to detail what then happened; it was found that the respondent suffered psychiatric injury from these events.
Other evidence
Apart from evidence from the respondent and Mr Cheng, the judge had evidence going to liability from Mr Mohab Maggar, the senior business development manager of the Pizza Haven franchisor, and from Mr Richard Jennings, a security consultant. Each witness was called by the plaintiff.
According to Mr Jennings, Bankstown had a high crime rating, more than double the state average for a local government area, and as to robbery generally had “an extremely high record in the top half dozen crime rates for the state”. Mr Maggar said that the Bankstown area, amongst others, was known to Pizza Haven as “a rough area” at the beginning of 2001. He explained this as “trouble-make”, further explained as “trouble could be anything you know”.
Prior to March 2001 Mr Cheng had been twice robbed at the pizzeria by persons armed with knives. He agreed that the area was a “rough area”, and said that after the robberies at the pizzeria he told the drivers that the area was rough, that they should be careful, and that if anyone asked for money just give them what they had and “don’t get yourself involved”. He agreed that he had safety concerns when the drivers were delivering pizzas, and said that he told the drivers that if they were held up when they were doing a delivery they were to hand over the money and the pizza and “get out [of] there”. In the appellant’s time as a Pizza Haven franchisee, however, there had not previously been an “assault” of a driver.
Pizza Haven provided a training course to Mr Cheng and his wife, and an instruction book. The evidence was that the training included how to deal with armed robbery, but no further detail was given and the instruction book was not tendered. It is not clear whether the training and instruction were concerned only with robbery of a pizzeria or also with robbery of delivery drivers. There were, however, recognised circumstances of suspicion about an order.
Mr Cheng said that if a phone call was from a public phone, which would come up on the display, he would not deliver the pizza, because “probably there is trouble”, meaning “like, you know they probably rob the pizza or something or whatever”. He said that if the caller asked for delivery to a public park he would “probably check” by ringing the phone number back. At one point he clearly enough said that he did not regard a difference between the (mobile) phone number on the display and the phone number given by the customer as exciting suspicion, saying that it was quite normal and the caller could be part of a group and give a friend’s address or contact number. Later he said, when asked if he customarily rang back before delivery, that he could not remember or “promise” and, “If happens like the phone’s different then the guy ring, probably – sometimes I ask like – later I check the number”. The answer earlier noted when Mr Cheng was being asked about his general procedure may have been referring to this.
Mr Maggar had worked for Pizza Hut for three years, and then another takeaway food chain for a year, before joining Pizza Haven in January 2001. He said that the Pizza Haven training included dealing with bogus or suspicious calls. There was no delivery to telephone booths or parks. Taking an order from a caller on a mobile phone was not unusual, although it was only about 5 per cent of calls ordering pizzas, but a new customer with a mobile phone number would be called back, because it could be a hoax. If there was a discrepancy between the displayed phone number and the number given over the phone, with the two numbers being very similar, and the caller was a new customer, he would “double check”, meaning call back on both numbers as some verification that the order was genuine. According to Mr Maggar, if on ringing back in relation to a call from a new customer with the discrepancy in mobile phone numbers there was no answer, he would not let the delivery go out. He agreed that there were economic considerations at work, since the pizzeria would not be paid for a hoax order, but he said that, although he had not himself encountered it, “it could be just for robbery, personal robbery”. He had heard of drivers being held up “maybe twice or three times” in his two and a half years with Pizza Haven.
Mr Maggar said that the Pizza Hut policy about checking mobile phone orders had been similar to the Pizza Haven policy. He did not agree that a phone call from the customer asking where his pizza was “changed [his] view about the reliability of the two numbers recorded on the docket”. He would still call back, wanting corroboration from speaking to the person on the recorded number(s).
Mr Jennings went further. His principal report was severely truncated by objections (cf Faucett v St George Bank (2003) Aust Torts Rep 81-699), and contained an account of what had occurred as “data” supplied by the respondent’s solicitors which was rather different from what came out of the evidence. What was left amounted to the opinion that, at least in the case of a new customer, an order from a mobile phone should be checked by calling back when the pizza was ready to be delivered; the return phone call would confirm the customer as “legitimate”, and if the phone was even engaged, the delivery should not be made.
Mr Jennings spoke from general expertise, not related to the conduct of a pizzeria or other such business. Through his oral evidence, underlying Mr Jennings’s opinion was the reasoning that malefactors would perceive a delivery driver as a soft target, and as a matter of perception would see the driver as a worthwhile target although the driver was not in fact carrying much money, and that the malefactors would be reluctant to give out a genuine telephone number. He said, in effect, that it was wrong to look only at the exposure of pizza delivery drivers, rather than to the exposure of those delivering all takeaway food and making other home deliveries. Mr Jennings also thought that the call from the customer asking where his pizza was did not do away with the need to call back, suggesting that the customer might have been ringing “to prevent there being suspicion caused by their failure to receive the call back” and saying that the order was still not verified.
In his second supplementary report Mr Jennings said that drivers should have been made aware of various risks of their job, including that if they were “wary of a particular delivery” they should phone the number provided and ask the customer to meet them at their car, and that if there was “no satisfactory resolution” of the phone call they should “abort the delivery and leave the area immediately”.
Mr Cheng did not notice the difference between the phone numbers. Asked why he did not call the delivery off when his call back to the customer was not answered, he said “Because they ring back I think a customer really want to eat a pizza”. He said that he thought it was a “normal order” and he “never thought a driver get robbed”.
The judge’s reasons
The judge accepted that robbery of a delivery driver was reasonably foreseeable (and it had been foreseen by Mr Maggar and by Mr Cheng himself). He asked whether the magnitude of the risk and the degree of probability of it occurring, and other relevant factors, were such that the appellant’s system of work was deficient. It is, with respect, not entirely clear on what basis his Honour held that it was deficient.
The first indication is in the passage from his Honour’s reasons earlier set out, dealing with Mr Cheng ringing the customer and getting no answer. His Honour said that the pizza delivery should have been “aborted” when Mr Cheng got no answer.
After referring to some other matters, his Honour appears to have put the appellant’s breach of duty at the earlier point of taking the order, saying -
“In my view, a proper system of work where the discrepancy was immediately noticeable on the telephone system, that the mobile phone should be phoned back and the delivery should have been aborted, when the mobile telephone was phoned back and it found that it was not answering. In my view, that for the implementation of a proper and safe system of work that the delivery should be aborted because there would be a foreseeable risk of injury in the circumstances.”
Then his Honour put the breach of duty in a different way, saying that the respondent should have been told that if he, the respondent, phoned and there was no answer he should return to the pizzeria without attempting to deliver the pizza. This is a little odd, because it assumed that the respondent would himself phone the customer, and on the judge’s conclusions the delivery should have been aborted as a result of the pizzeria phoning. It may be that his Honour was intending to take up Mr Jenning’s evidence of, in effect, training drivers.
Then the appellant’s breach of duty was put differently again, his Honour saying that when the customer phoned back it was an opportunity for Mr Cheng to enquire why there was a discrepancy in the two mobile phone numbers and that Mr Cheng “failed to make adequate enquiries on that discrepancy being recognised”. This also is odd, because it assumed recognition of the discrepancy and what the response to enquiries would have been.
Then his Honour returned to the early basis, perhaps mixed with training drivers, saying that any signs indicating potential for a robbery to occur should immediately bring about the cancellation of the order and the driver being warned not to make the delivery, and -
“In my view, a reasonable employer in the defendant’s position should have undertaken the cancellation of the order or at least had in place a system when the plaintiff or Mr Cheng made the phone call to which there was no answer, he should have been told to abort, cancel and return to the base with the pizza undelivered.”
Finally, his Honour then went through the particulars of negligence, as to some saying that they had been established, as to others saying that they had not been established, and as to others again saying that they should have been taken into account, “fell within the ambit of the matters to [sic] which I have found”, or were added to other matters. The particulars specifically found to have been established were the generalised allegations of an unsafe system. What his Honour here said is, with respect, not of great assistance.
It seems to me that the substantial basis for his Honour’s decision was that, the customer being a new customer and the phone numbers being of mobile phones, Mr Cheng should have called the delivery off when, after the customer had phoned to ask where his pizza was, he rang the customer back and found that the phone was switched off. So far as the judge found that Mr Cheng rang the customer back before his call to the respondent, his reasoning would apply to failure to phone the respondent again and tell the respondent that the call to the customer had not been answered. His Honour may also have held that the breach of duty lay in failing to ring back after taking the order, although the question of causation then arising was not addressed.
The appeal
The appellant complained of factual findings in two respects. First, it said that the judge was in error in saying that the respondent was required to make deliveries in an area where “street crime” was relatively common, because the evidence was not of street crime. The evidence was of robberies; correction would not assist the appellant. Secondly, it said that the judge erroneously relied on general reference to newspaper reports and court proceedings when saying that ”assaults occur in many scenarios where not much money is involved and this should reasonably be known to the defendant”. Mr Cheng was conscious of risk to the drivers, and Mr Maggar was allowed to give evidence that the grounds for suspicion went beyond economic considerations and of drivers being held up, and I do not think that any difficulty in the judge’s observation is of significance.
The appellant’s submission was otherwise in substance that calling off the pizza delivery, in the circumstances, was not warranted as a reasonable response in the sense described in Wyong Shire Council v Shirt (1980-81) 146 CLR 40 at 47-48. It accepted that, as a matter of inference, one of the robbers made the calls to the pizzeria, and did not submit that the respondent was contributorily negligent in proceeding with the delivery after he had phoned and received no answer.
The appellant submitted that the facts fell short of establishing that the appellant, as a reasonable employer, ought to have considered the risk to the respondent as sufficient to justify such action. It referred in this connection to the absence of any previous incidents affecting delivery drivers and to “Mr Cheng’s reasonable interpretation of the events that occurred”, in this referring to Mr Cheng’s evidence that the second phone call from the customer indicated that he was a customer who really wanted to eat a pizza and that it was a normal order.
An employer is under a duty to take reasonable care to avoid exposing an employee to an unnecessary risk of injury. The duty can extend to protection of the employee from robbery, see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN 1070; Faucett v St George Bank. As was said by Sugerman P in Chomentowski v Red Garter Restaurant Ltd, in which an employee was robbed while depositing takings in a night safe, “If the defendants were unable to control the activities of members of the criminal class, they were able to avoid the exposure of the plaintiff to their consequences” (at 1075).
But it must be remembered that the duty is to take reasonable care, and it is not enough afterwards to point to something which could have been done whereby the injury would not have been suffered, see for example Tame v New South Wales (2002) 211 CLR 317 at [8], [12], [102]. In Chomentowski v Red Garter Restaurant Ltd the plaintiff regularly carried a significant sum of money to the night safe, in an area of increasing criminal activity and in vulnerable circumstances, and was described by Sugerman P as “a specially attractive target for the evilly-minded” (at 1075). In Kozjak v Fairfax Community Newspapers Ltd [2001] NSWCA 37 the employee canvassed an industrial estate for sales of advertising space, and was sexually assaulted in a remote area, but her predecessor had not encountered any untoward behaviour, there was no history of physical violence in the estate, and the canvassing was in daylight and by attendance on many businesses; it was held that there was no failure to take reasonable care. In Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78 it was held that, on the evidence of risk and practice in dealing with the risk, reasonable care for night staff did not require overnight security presence in a hotel after takings had been deposited in the safe. Each case depends on its facts.
Robbery of drivers was a real risk, recognised by Mr Cheng and in the evidence of Mr Maggar. Although in Mr Cheng’s time there had not been robbery of one of his drivers, Mr Maggar had heard of two or three occasions of drivers being held up. The amounts of cash carried were not large, but could not be thought insignificant to a malefactor who could also see a driver as an easy victim.
On the evidence, there were accumulating circumstances of suspicion where the order was from a new customer calling on a mobile phone and giving a different (and in the present case very similar) contact mobile phone number. The suspicion was not just that the call was mischievous and the pizzeria would not be paid, but that robbery could be behind it. Mr Maggar’s evidence pointed to a practice in these circumstances of ringing back as a form of verification. There was possibly some support for ringing back in the evidence of Mr Cheng, but if that be put aside ringing back could easily be done, and even on busy nights would not greatly impede the business given the small percentage of orders from callers using mobile phones. It is no doubt true that the mischief-maker or worse might take the call and maintain the façade, or that a genuine caller might for some reason not answer the call, but the practice would contribute to the physical safety of drivers as well as the economic safety of the business.
In the present case there were two additional factors. One was that the customer phoned and asked where his pizza was. The other was that, when Mr Cheng rang back, the phone was switched off. In this case the first factor did not count for much unless it was known from what phone number the caller was calling – the evidence was not even that it was one of the numbers recorded on the invoice. The second factor, on the evidence, could only add to the circumstances of suspicion. In my opinion, it can not be said that the judge was in error in holding, as I conclude he did as the substantial basis for his decision, that in the circumstances reasonable care on the appellant’s part required that the delivery then be called off. Mr Cheng could and should have phoned the respondent and told him to go no further.
Order
I propose that the appeal be dismissed with costs.
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LAST UPDATED: 15/07/2005