Chin v Daymaster Pty Ltd
[2018] WADC 80
•15 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHIN -v- DAYMASTER PTY LTD [2018] WADC 80
CORAM: JUDGE GOETZE
HEARD: 28-30 MAY 2018
DELIVERED : 15 JUNE 2018
FILE NO/S: CIV BRO 5 of 2013
BETWEEN: LILY ANN CHIN
Plaintiff
AND
DAYMASTER PTY LTD
First Defendant
DAVID ANDREW HALL
Second Defendant
Catchwords:
Claim for compensation by victim following an assault in an attempted armed robbery in a hardware store - Victim was a customer of the store - One of the offenders was an employee of the store - Scope of store owner's duty of care to the victim - Whether store owner vicariously liable for acts of employees, including the offending employee - Turns on own facts
Legislation:
Civil Liability Act 2002
Occupiers' Liability Act 1985
Result:
Action dismissed
Representation:
Counsel:
| Plaintiff | : | Mr P Lafferty |
| First Defendant | : | Mr T Lampropoulos SC |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Butcher Paull & Calder |
| First Defendant | : | Kott Gunning |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Cotterill v The State of Western Australia [2013] WASCA 52
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254
Prince Alfred College Incorporated v ADC [2016] HCA 37
R v Reid [2007] SASC 302
The State of Western Australia v Cotterill [2011] WASCR 129
The State of Western Australia v Hall [2011] WASCR 64
JUDGE GOETZE:
On Tuesday, 28 December 2010, shortly after closing time at the Home Hardware & Plumbing store at Broome, the plaintiff Lily Ann Chin, was assaulted in an attempted armed robbery of that store by three men, including the second defendant, David Andrew Hall.
The store was owned and operated by the first defendant, Daymaster Pty Ltd.
At the material time, Mr Hall was employed at the store by Daymaster.
Following the attempted robbery, Mr Hall, Clinton Shane Cotterill and Gary Simpson each pleaded guilty to an offence of aggravated assault upon Ms Chin with intent to commit a robbery.
Ms Chin now seeks to recover damages from Daymaster in respect of her injury, loss and damage sustained as a result of the assault upon her.
The issues
Daymaster accepts that, as the occupier of the store, it had a duty to Ms Chin, as a customer, in its store. This case then, concerns the scope of Daymaster's duty of care. If there is such a duty, then examination is required of whether, in the circumstances:
1.the store manager was negligent by permitting Ms Chin entry into the store after hours when all perimeter doors were not locked;
2.Mr Hall was acting in the scope of his employment and if so, whether he was negligent in failing to ensure that all perimeter doors were locked;
3.Daymaster is vicariously liable for any alleged negligence of Ms Lee and Mr Hall respectively; and
4.Daymaster failed to assess risk following the breakdown of its CCTV system over the cash tills used in the store.
The law
The scope of the duty of care when criminal conduct is involved
In Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254, Gleeson CJ, with whom Gaudron, Hayne & Callinan JJ agreed, identified that where the nature of the harm suffered by a visitor was physical injury inflicted by a third party over whose actions the occupier had no control, the relevant duty must be a duty related to the security of the visitor. It must have been a duty to take reasonable care to protect the victim from conduct, including criminal conduct, of the third party [17].
Gleeson CJ observed that it is exceptional to find in law a duty to control the actions, including criminal conduct, of another person to prevent harm to strangers, unless the case is one of a special relationship involving a duty to control that other person's actions [20] – [23].
Gleeson CJ went on to say that criminal behaviour is unpredictable and that is one reason why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable [30].
Hayne J explained that the extent of the duty falls for a decision in relation to the facts of the case, such that it is not always useful to examine the extent of the duty of care separately from the facts which have given rise to the claim [103]. What is useful is to consider the damage suffered by the victim, and the particular want of care which is alleged against the occupier. The scope of the relevant duty can then be considered by asking whether that damage, caused by that want of care, resulted from the breach of a duty [105].
In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, the High Court considered a claim by a victim of a shooting in a reception and restaurant business conducted on licensed premises regulated by the Liquor Act 1982 (NSW). That Act provided for the controlled sale of liquor because it is well recognised that misuse and abuse of liquor can lead to violent, quarrelsome or disorderly conduct. Hence there are duties cast upon those serving liquor as part of the price paid for the privilege of such service [20]. Provisions of the Civil Liability Act 2002 (NSW), being the same or similar to the provisions of the Civil Liability Act 2002 (WA) were also relevant. The duty of care in the Adeels Palace case was therefore to be determined against this statutory background [22].
In Adeels Palace, the High Court's joint judgment accepted, for the purpose of argument that there was a risk, of which Adeels Palace knew or ought to have known, that there would be violent, quarrelsome or disorderly conduct in the restaurant and that the risk was not insignificant [28]. However, the High Court did not find that a special relationship or exceptional circumstances existed on which it could, in law, base a duty to control another's actions to prevent harm to strangers. To have imposed that responsibility would not accord with established principles [56].
Wrongful acts of employees
In Prince Alfred College Incorporated v ADC [2016] HCA 37, the High Court in a joint judgment noted that for an employer to be vicariously liable for the wrongful act of its employee, that act must have been committed in the course or scope of employment [41]. The difficulty is often in determining that course or scope of employment. This can be tested by asking whether the act was authorised by the employer or was an unauthorised mode of doing some act authorised by the employer or even an unauthorised act, provided the act was so connected with authorised acts that it may be regarded as a mode, although an improper mode, of doing it [42].
The facts
Counsel for both parties agreed that the facts set out in the sentencing remarks in The State of Western Australia v Hall [2011] WASCR 64, The State of Western Australia v Cotterill [2011] WASCR 129 and on appeal in Cotterill v The State of Western Australia [2013] WASCA 52 can be incorporated into these reasons, save where they are contradicted by facts proved in this trial.
The only two witnesses who gave evidence as to what happened in the attempted robbery were Ms Chin and the manager of the store, Ms Noelene Lee, who was called as a witness as part of Ms Chin's case.
Ms Chin's evidence was that she was repairing a desk at her home. To that end, during the afternoon of 28 December 2010, she twice attended at the store to purchase timber and associated items. She thought her first attendance was between 3.00 pm and 3.30 pm and that her second attendance was around 4.30 pm or thereabouts.
After returning home from the second attendance, she ascertained that one piece of timber was too short. She knew the store closed at 5.00 pm and so, at 5.12 pm, she telephoned the store and spoke to Ms Lee who agreed to her re‑attending the store after hours.
The store building is located on a corner block and is largely surrounded by a driveway which, in turn, is surrounded by a wire fence with motor vehicle entrance and exit gates at the front and rear of the block respectively. There is also a pedestrian gate at the side fence.
Ms Lee's evidence was that, on 28 December 2010, she instructed two junior employees of the store, Selwyn Taylor and Harrison Wardle, to secure the premises by locking all store building perimeter doors and double checking that all such doors had been locked. Messrs Taylor and Wardle were also to chain and padlock the front and side entry gates. The rear exit gate was not locked. Ms Lee was not asked, and did not say, at what time she issued this instruction.
Ms Lee was subsequently advised by these two employees that all doors to the store building had been locked by them and that they had also double checked to ensure locking had occurred. This was achieved by one employee working in a clockwise direction around the store and the other working in an anti‑clockwise direction. At some point, they would 'overlap', as Ms Lee put it, and double check the locking of each other. Having completed this circuit, they then met together again and, at the counter, reported to Ms Lee the fact of locking and securing the store.
Once Ms Lee had received this report, she locked the front door herself and then commenced counting the day's takings from the store's three cash registers. First, this involved her counting cash and EFTPOS receipts from checkout till number 3, which she completed before Ms Chin arrived. Ms Lee then began counting receipts from the checkout till number 2, but she had not completed that task when Ms Chin arrived at the store.
It had only taken Ms Chin a few minutes from her telephone call to arrive at the store. When she did so, she found the front entry gate to the premises had been chained and padlocked. Accordingly, she drove around the corner to the rear exit gate. It was still open. As she entered that gate, she observed a white van parked near the rear sliding door of the warehouse section of the store. Near to the van she saw Mr Hall changing his shirt. She knew him to be an employee of the store. She then drove her motor vehicle to the front entry door of the store building so that Ms Lee could see her. Ms Lee then unlocked that door and once Ms Chin had entered, Ms Lee locked it behind her.
Ms Lee gave evidence that after allowing her entry, Ms Chin suggested to her that she then complete counting the day's takings from till number 2. Ms Lee did this and she put those cash monies and receipts on the counter at till number 1.
Ms Chin did not give evidence of Ms Lee completing the counting of the till number 2 proceeds or placing them on the counter at till number 1. However, there is photographic evidence showing the proceeds from till number 2 had been removed and of those proceeds being located at till number 1.
Once the counting from till number 2 was complete, Ms Lee walked into the centre of the store and looked up the various aisles to ensure there was nobody else in the store. This was a usual procedure which she explained to Ms Chin. In doing this, Ms Lee thought she observed a shadow at the western top end of the store. She did not wish to alarm Ms Chin, but said there was something she needed to check. She then went to investigate, but did not see anything.
Ms Lee then proceeded towards the warehouse section of the store for the purpose of setting up cutting equipment. She said Ms Chin proceeded to the timber section, elsewhere in the store, to select more timber.
However, before reaching the warehouse, it was necessary for Ms Lee to pass staff personal lockers, where she noticed Mr Hall. He had approached those lockers from the direction of where Ms Lee thought she had observed the shadow. She believed it was his shadow which she had seen moments earlier. His presence surprised her. Ms Lee suggested to Mr Hall that he should assist Ms Chin select her timber. Mr Hall did not respond to her.
Ms Lee said that Mr Hall did not have to pass Ms Chin in moving from the area where she thought she initially saw the shadow to where she actually saw Mr Hall.
Mr Hall had not been rostered to work that day, but Ms Lee had twice seen him earlier that day in the store. On one of those occasions, he told her he was checking a computer for an order of a customer.
Ms Lee's evidence was that after speaking to Mr Hall, she then continued into the warehouse to set up the cutting device. However, she noticed that the rear sliding door at the western end of the warehouse was slightly ajar, being open approximately 250 mm. She went to investigate. At this time, she believed Ms Chin had gone to select her timber.
Ms Chin's evidence was that upon her entry into the store, both she and Ms Lee went to the timber section where Ms Lee chose a piece of timber which Ms Chin rejected as not being suitable for her purpose. Ms Chin said she selected another piece and then, they both walked to the warehouse section of the store to cut the timber. This evidence therefore varies from Ms Lee's evidence.
Ms Chin also gave evidence that upon entering into the warehouse, she noticed the rear sliding door was open to approximately 1 – 1½ feet. She said that Ms Lee went to investigate. Ms Chin waited by the cutting table.
Ms Chin and Ms Lee both gave evidence of enquiries made by Ms Lee of someone outside the rear sliding door. Ms Lee said there were two men there. She did not recognise either of them.
Ms Lee and Ms Chin both said Ms Lee then called out to Ms Chin, following which, they were both savagely assaulted by Mr Cotterill with a Maglite torch. Ms Lee was assaulted outside the building and Ms Chin was assaulted inside it. After regaining consciousness, Ms Chin called 000 on her mobile telephone at 5.26 pm. The police and then an ambulance arrived.
The claim by Ms Chin relies on the sentencing remarks of Jenkins J when sentencing Mr Hall, including:
… on 26 December 2010 you [and your two co‑offenders] agreed and planned to steal cash and property [from the store] … At about 5.15 pm on 28 December the three of you drove to Home Hardware in a white Mitsubishi Express [3].
… None of you envisaged that there was likely to be someone in the premises although you appreciated that it was possible that somebody would be there [4].
Ms Lee opened the [rear sliding] door and was met by [Messrs Cotterill and Simpson]. You, Hall, knowing that you could be recognised by Ms Lee ran behind a nearby shed [5].
Both Ms Lee and another manager of the store, Mr Christopher McLeod, gave evidence that they were not aware of any formal policy for closing the store. Ms Lee and Mr McLeod gave evidence of the routine for closing which is consistent with what has been described above. Mr McLeod would 'lock up' between 4.55 pm and 5.10 pm and start counting the day's collections when he was ready to do so. Ideally, this would be when all customers had left, but he could start this process before all customers had left. This could be 5.25 pm, depending on customer needs. It was all a matter of common sense.
Mr McLeod said that there was a strict policy to serve customers in the store. Both Ms Lee and Mr McLeod agreed that sometimes customers would be allowed to access the premises after closing time in order to provide customer service.
In evidence, Ms Chin acknowledged that Ms Lee provided her with customer service on this particular occasion.
The only witness called for the defence was Mr Ian Brown, who was a director of Daymaster. He gave evidence that there was a written manual for closing, one purpose of which was to give staff a timeline within which to close the store. Nonetheless, customer service came first, even after 5.00 pm, which was the 'target' for closing. The ethos was to serve customers up to 5.30 pm. Mr Brown did not have any concerns regarding possible criminal behaviour at the store.
Findings on the facts
The thrust of Ms Chin's claim is that Daymaster, through its staff, did not comply with the store closing procedure by allowing Ms Chin into the store after hours when the rear sliding door had not been locked. Ms Chin's case is that the store's staff failed to lock this door, thereby allowing Mr Cotterill access into the building and to Ms Chin, and that this was the direct cause of the assault.
It is common ground that the rear sliding door was open and that Mr Cotterill entered through it to assault Ms Chin.
There is no direct evidence of the rear sliding door of the warehouse having been locked or that it was left unlocked.
The offenders' plan to rob the store
When sentencing Mr Hall, Jenkins J referred to the agreement and plan he made two days before the attempted robbery with Messrs Cotterill and Simpson. This information could only have come from an offender. There is no evidence in this trial to contradict it.
By his plea, Mr Hall admitted that he was present at the store at the time Ms Chin was assaulted. He and the other two offenders pleaded guilty to offences of aggravated assault with intent to rob.
When Messrs Hall and Simpson were sentenced, it was on the basis that the plan was to steal cash and property. Jenkins J noted that Mr Hall had provided the two other offenders with information regarding the security of the store and potential cash floats. This information has not been contradicted in this trial.
Further, at the sentencing of Messrs Hall and Simpson, it was not envisaged there would be someone on the premises, although it was appreciated that it was possible somebody would be there. However, when Mr Cotterill was later sentenced, it was on the basis of the potential amount of cash that might be present after a long weekend [5]. Further, Mr Cotterill had told the police he:
expected someone to be at the shop; otherwise, if no‑one was there then there would not be any money there either.
Jenkins J then commented:
So you were aware that your offending would require you in all likelihood to confront somebody at the store [5].
Apart from what Mr Cotterill told the police, no evidence has been produced as to the source of the information detailed by Jenkins J in her sentencing remarks concerning Mr Cotterill. It can however, be inferred that any information as to the amount of cash present after a long weekend can only have been provided by Mr Hall.
The sentencing remarks concerning Mr Cotterill relate to 'the potential amount of cash that might be present after a long weekend', and not just the takings from 28 December. It can be readily inferred that, if the takings from 26 and 27 December had not already been banked, then the likelihood was that they had been secured in the floor safe. Accordingly, to steal these takings from the safe required a confrontation with Ms Lee, in which she would either volunteer the safe combination or open it, or after she had already opened the safe. This would then give the offenders access to the whole of the takings in that safe. There is no evidence as to whether or not the prior days' takings had been banked in a night safe deposit facility.
The best way to give effect to this plan required at least one of the offenders to be inside the store before it was locked so as to enable the unlocking of the rear sliding door and permit entry into the store of the other two offenders to confront Ms Lee with the safe open. As Mr Cotterill told police ‑
if no‑one was there then there would not be any money either.
Ms Lee might not have revealed the safe combination if confronted before she had opened it, or if she had already locked it, or if she had left the store and was outside, heading for her home, where any confrontation might be observed by a passerby.
Mr Hall's presence in the store prior to closing time
Mr Hall was the obvious person to be in the store prior to closing time. His employment at the store gave him the opportunity to be within it, both before and after closing time and, if detected, to have provided an apparent legitimate excuse for being in the store which, in all probability would be accepted, as evidenced by Ms Lee's instruction to him to assist Ms Chin select her timber.
Although Ms Chin saw Mr Hall outside the store after she returned shortly after 5.12 pm, she did not thereafter see him inside the store at all. That Ms Chin did not see Mr Hall inside the store does not mean that he was not inside the store after her return.
Ms Lee's evidence at [28] above explains why Ms Chin did not see Mr Hall moving to the staff lockers. Obviously, Ms Chin could not give evidence about something she did not see, but there was a positive sighting of Mr Hall by Ms Lee who spoke to him.
Ms Lee's evidence of what happened upon Ms Chin's arrival at the store is set out at [23] ‑ [26] above.
Ms Chin did not give evidence of Ms Lee counting the takings from till number 2 or of Ms Lee explaining to her why she looked up and down the aisles in the store. Ms Chin's evidence was that upon her return to the store, she and Ms Lee went to the timber section together, and then to the warehouse.
The different versions of what happened after Ms Chin's return to the store reveal an apparent contradiction between the evidence of Ms Chin or Ms Lee as to what happened after Ms Chin's return to the store.
Ms Lee's evidence is to be preferred over Ms Chin's evidence. That Ms Lee did complete the counting from till number 2 and deposit the proceeds at till number 1 can be seen from the photographic evidence. This finding then leads to acceptance of Ms Lee's evidence of her checking the aisles. She also saw and spoke to Mr Hall without Ms Chin being aware of this.
Further, there is the conflict that Ms Chin said Ms Lee accompanied her to the timber section of the store and selected what Ms Chin thought was a faulty piece of timber. On Ms Lee's evidence, she did not do this. The conflict can perhaps be reconciled by Ms Lee not recalling that she made this selection, but then left Ms Chin to select her own timber. In any event, this conflict does not impact on Ms Lee's evidence set out at [27] above and [64] below.
The sentencing remark of Jenkins J that the offenders, including Mr Hall, drove to the store about 5.15 pm on the day of the attempted robbery cannot be accepted, at least in so far as Mr Hall is concerned for the reasons set out above. Further, those remarks that Mr Hall was outside the store when Ms Lee opened the sliding door cannot be accepted, as will now be explained.
First, both Ms Chin and Ms Lee agreed that Mr Hall was in the store during the day on 28 December 2010. Ms Chin saw him, she thought, first between 3.00 pm – 3.30 pm and secondly, around 4.30 pm or thereabouts. This timing is important.
Secondly, there was then ample opportunity for Mr Hall to have hidden himself inside the store after being there around 4.30 pm or thereabouts, as stated by Ms Chin. It was not long after this time when Selwyn Taylor and Harrison Wardle locked the perimeter doors, although exactly, or even approximately, when is not known.
Thirdly, Messrs Taylor and Wardle left the store that day, before Ms Chin returned to it around 5.15 pm. There was then ample time for Mr Hall to unlock the rear sliding door from inside the store, exit the store to be seen by Ms Chin as she returned and to then re‑enter the store and be seen by Ms Lee.
Fourthly, Ms Lee observed Mr Hall inside the store immediately prior to her opening the rear sliding door when she saw only two men. It is not disputed that those two men were Messrs Cotterill and Simpson. The sentencing remarks of Jenkins J at [35] above indicate that Mr Hall ran behind a nearby shed for fear of being recognised by Ms Lee, but that cannot be correct because Ms Lee had just seen him inside the store. Mr Hall could not have escaped outside by this time.
It is not suggested that there was anyone other than Ms Lee, Ms Chin and the three offenders present. Ms Lee's evidence that she saw Mr Hall by the staff lockers and spoke to him was not challenged in any way. Her evidence was called as part of Ms Chin's case against Daymaster. Ms Lee gave this evidence in a strong and emphatic manner and it can be accepted without hesitation.
The sentencing remarks as to Mr Hall hiding from Ms Lee when she opened the rear sliding door do not 'put an end to the theory that Mr Hall was in the premises' as Mr Lafferty argued in his closing submissions. Mr Hall put up this explanation so as to minimise his culpability in the offending. Clearly, a more serious view of his criminality might be taken if it was known that he had unlocked that door and remained hidden inside the store.
Ms Lee said Ms Chin telephoned around '20 to 5' and she told her to be there by 5.00 pm. However, the telephone records show that Ms Chin rang at 5.12 pm. That Ms Lee was not correct as to the time Ms Chin rang is not a sufficient reason to doubt any of Ms Lee's other evidence, including that she saw Mr Hall inside the store.
There is also no reason to not accept Ms Chin's evidence that she saw Mr Hall changing his shirt when she returned to the store. This sighting was just near the rear sliding door.
Mr Hall could not have entered the store through the front door because Ms Lee and Ms Chin would have seen him do so. He could only have entered through the rear sliding door and he was only able to do that because he was hiding in the store when it was locked and he unlocked the rear sliding door, exited and was seen by Ms Chin and then re‑entered the store and was seen by Ms Lee.
Ms Lee's reliance on staff as to the locking of the perimeter doors
Ms Lee's evidence was that Selwyn Taylor and Harrison Wardle both reported to her they had attended to chaining and padlocking the motor vehicle and pedestrian entrance gates and that they locked the perimeter doors of the building. They each then double checked that doors locked by the other had in fact been locked. Ms Lee relied upon that report, such that she then began to count the day's takings.
Although the locking and checking of the locking of the perimeter doors was hearsay evidence from Ms Lee, it was led from her as part of her evidence‑in‑chief by counsel for Ms Chin, Mr P Lafferty, without objection. Nonetheless, Mr Lafferty submitted that it should be inferred that Messrs Taylor and Wardle had not locked the rear sliding door and the warehouse section of the store. However, there is nothing from which to draw this inference, save that the door was ajar when Ms Lee entered the warehouse and Mr Lafferty argued that the sentencing remarks reveal Mr Hall was outside when the door was opened by Ms Lee. It is not disputed that the door was ajar and it has now been found that Mr Hall was not outside, but inside, the store when the door was opened further by Ms Lee.
Ms Lee gave the appearance of being a competent manager of the store and one who demanded performance from her staff. She described Messrs Taylor and Wardle as being 'very astute', thereby indicating that they could be relied upon. She was entitled to accept their report of the fact of locking up and double checking the locking. This evidence can be accepted, but it is still necessary to determine what weight should be attached to it: R v Reid [2007] SASC 302.
In this instance, there is a further matter to consider and that is, that, Ms Lee herself gave the instruction to Messrs Taylor and Wardle to lock and double check the locking of the store. The securing of the store was not something which just happened. Mr McLeod said that sometimes, when he issued the instruction to secure the store, such instruction was not complied with. However, it was not suggested by Mr McLeod that that occurred with either of these two particular employees. Given that Ms Lee gave the instruction to two 'very astute' employees adds to the weight of the report that the outer doors had been locked and double checked, such that the report can be regarded as one piece of circumstantial evidence, without any special weight.
The improbability of the rear sliding door not being locked at closing time this particular day
Selwyn Taylor and Harrison Wardle left the store after they had reported locking and double checking the locking of perimeter doors to Ms Lee. It defies common sense and logic and it is highly improbable that, being 'very astute', they not only did not lock and double check the locking as they reported, but that further, they also left the rear sliding door ajar to the extent of 1 ‑ 1½ feet or 250 mm.
This two step procedure of locking and double checking the locking is important. From the photographic evidence, it is clear that the only way the rear sliding door of the warehouse can be locked or unlocked is from inside the store. Access from the exterior is simply not possible if that door is locked and secure. Therefore, the only way it could have been ajar was for someone on the inside to have unlocked it after Messrs Taylor and Wardle had locked and double checked it.
Further, that the rear sliding door was ajar is also important in itself. Ordinarily, when unlocked, it would be fully open. It can be inferred that someone must have unlocked it and left it ajar. That someone was Mr Hall who was present in the store when that door was locked, as detailed above.
Finally, accepting that the offenders planned and hoped to steal takings from the long weekend, it is highly improbable that, on this particular day of 28 December 2010, it just so happened that the 'very astute' Selwyn Taylor and Harry Wardle failed to not only fulfil their respective duties to lock and double check the locking, but to also leave the rear sliding door slightly ajar to enable access to the store.
There is no other reasonable explanation for anyone other than Mr Hall to have unlocked this door and left it ajar given that when she opened the door, Ms Lee saw only two offenders, neither of whom was Mr Hall as detailed at [61] above.
Perimeter door alarm and motion detector
A further reason to confront Ms Lee inside the store was that once Ms Lee had set the alarms and left the store, the perimeter door alarm and motion alarm detector would send alarms that the store had been violated, if the offenders gained entry. Mr Hall did not have the codes to switch off those alarms. Nor did he have the combination for the floor safe. Consistent with this, it was necessary for the offenders to either catch Ms Lee in the process of putting the day's takings into the open floor safe, or to force her to open it for them, but in any event, before she set the perimeter door alarm and motion detector into operation and left the store. This then really required the offenders to confront Ms Lee before she deposited the takings in the floor safe and left the store.
Conclusion on the facts relating to the robbery
Given:
1.the offenders' plan to rob the store;
2.Mr Hall's presence in this store prior to the locking of the perimeter doors as part of that plan;
3.Ms Lee's reliance on the staff report of the locking of the perimeter doors;
4.the improbability of the rear sliding door not being locked, double checked for locking and being left ajar; and
5.the need to confront Ms Lee whilst she was in the store, and preferably with the safe open, but before she set the alarms in place
it is more probable than not that from 4.30 pm or thereabouts, when Ms Chin saw Mr Hall at the store, he remained hiding in the store whilst Messrs Taylor and Wardle locked and double checked that the doors were locked. Mr Hall thereafter continued to hide in the store after Messrs Taylor and Wardle had left. However, at some unknown time, he unlocked and opened the rear sliding door to about 1 ‑ 1½ feet or 250 mm, exited the store and was seen changing his shirt by Ms Chin when she returned to the store at about 5.15 pm. He then re‑entered the store whilst Ms Lee completed the counting of takings from cash till number 2. This would have taken her some little time. However, he was detected when Ms Lee thought she saw a shadow and subsequently saw him by the staff lockers, following which, Ms Lee and Ms Chin were assaulted. The offenders then made their getaway.
The written closing procedure
Mr Lafferty placed much reliance on the store's written closing procedure. However, it is to be taken for what it was meant to be. In reality, it provided a checklist of things to be done, using common sense to resolve any tension between the needs for customer service late in the working day or even after closing time and the closing of the store.
Mr Brown's evidence was that customer service was the main driver and that closing at 5.00 pm was a 'target', with closing time being flexible around customer service.
In any event, the closing down procedure, on 28 December 2010, by and large followed the written instruction. That Ms Chin was allowed entry into a locked store did not offend the closing procedure, which was designed to be subject to customer requirements, and Ms Lee was meeting a customer's requirement, as acknowledged in evidence by Ms Chin.
Past criminal acts in the store
Mr Lafferty relied on the dissenting decision of Kirby J in Modbury Triangle at [57], and submitted that certain businesses, including this particular store in its location in the light industrial area of Broome, attract criminals. However, the prior history of the store concerns only some minor theft in 2003 and 2004 and damage to a car left in the outer yard of the premises three days prior to the attempted robbery. This car damage appears likely to be the act of young people more keen on damage to the car than on theft as keys to the store left on the car's passenger seat were not used to access the store. The prior history is not one from which it can be said that thieves were attracted to it. Mr Brown was justifiably not concerned about the prior history.
Further, the limited criminal history relating to the store does not warrant a finding that that history created a special relationship between Ms Chin and the store calling for a higher duty of care. This is not an exceptional case as set out by Gleeson J in Modbury.
Further still, it cannot be said either that the risk, even if accepted to be foreseeable, was 'not insignificant' or that the particular circumstances of this matter reasonably required the taking of any precautions within the meaning of s 5B of the Civil Liability Act. This risk falls to be considered prospectively, not retrospectively.
CCTV
Complaint was also made that the CCTV had been inoperative for the three or four month period prior to the attempted robbery. However, the CCTV system overlooked the cash tills and the main entrance to the store, not that area of the store covering the rear sliding door of the warehouse to the floor safe and so, the offenders, who were seeking to confront Ms Lee in one of the ways referred to above, need not have placed themselves within the range of the CCTV, even if it was operative.
Further, the sole purpose of installing the CCTV was to detect a member of staff who had been taking money from the cash tills. Once that person had been detected, then the CCTV really had no further role to play. It could remain where it was, whether serviceable or not. Indeed, there were other dummy CCTV cameras set outside the premises, however they were never operative and were only installed to deter would‑be thieves. The prior criminal history relating to the store did not compel the provision of operative CCTV.
Even if the defective CCTV system could be held to be evidence of negligence, such defective system was not causative of Ms Chin's injury.
Scope of the duty of care
It is not suggested that the Occupiers' Liability Act 1985 adds anything to Daymaster's duty of care at common law, as to which see Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [19, 20] and [63].
Ms Chin has failed to prove a special relationship with Daymaster, or that there is something exceptional about her status in the store as a customer, when the three offenders attempted to rob the store and assaulted her. Although she was there after hours, the store had been secured to protect her. Her injuries were not caused by any want of care on the part of Daymaster. Rather, the injuries resulted from the criminal act of the offenders, over which Daymaster had no control, given the manner in which those offenders acted, Mr Hall's acts were not committed in the course or scope of his employment.
However, assuming this is wrong and that the duty of care extended to Ms Chin in these circumstances, the claim nonetheless fails because there was no breach of that duty which caused injury.
Findings on negligence
The negligence of Ms Lee
Ms Lee was entitled to rely on the report of Selwyn Taylor and Harrison Wardle as 'very astute' employees of having carried out the locking and double checking the locking of the perimeter doors. Ms Lee thereafter unlocked the front door to permit Ms Chin's entry into the store. She relocked it after her entry. Aside from Mr Hall unlawfully hiding in the store and opening the rear sliding door, being a criminal act over which Ms Lee and Daymaster did not have control, the store was otherwise secure for the purpose of Ms Chin's safety. Ms Lee was not negligent. Ms Chin's injury was not caused by any want of care by Ms Lee.
The acts of Mr Hall
Mr Lafferty submitted that this case, involving a store closing policy, was different to the Modbury case, which did not have any system for lighting the car park. However, this submission cannot be accepted. The evidence points to the store closing policy having been adhered to by its employees, whether they knew it accorded with a written policy or not. Mr Hall's criminal activity, together with his two co‑offenders, was the sole cause of Ms Chin's injuries.
It cannot be said that Mr Hall's wrongful act of unlocking the rear sliding door was committed in the course or scope of his employment: Prince Alfred College [41]. It matters not that Mr Hall was an employee of the store.
In order for Mr Hall's act to attract common law liability to Daymaster, his act of opening the rear sliding door must have been either an act authorised by Daymaster or an unauthorised mode of doing some authorised act or an unauthorised act provided that it was so connected with an authorised act that it may be regarded as a mode, although improper, of performing that authorised act: Prince Alfred College [42]. It was none of these things.
Mr Lafferty sought to connect Mr Hall's act of opening the rear sliding door to his employment by reference to Ms Lee's request of him to assist Ms Chin select timber. However, on the evidence, he had already unlawfully unlocked the rear sliding door prior to Ms Lee's discovery of him in the store and his continued presence in the store at that time was only for criminal purposes. In any event, he did not assist Ms Chin. That his employment afforded an opportunity for the commission of a criminal act is not of itself a sufficient reason to attract vicarious liability. There are no particular features here of any special role assigned by the store to Mr Hall vis-à-vis Ms Chin.
Daymaster cannot be held to be vicariously liable for any failure of Mr Hall as the employee to lock the rear sliding door when his very purpose in the store was to unlawfully open that door to enable access into the store by his two co‑offenders for the purpose of robbing it.
Given the reasons detailed above, there cannot be any vicarious liability attaching to Daymaster by reason of the acts of either Ms Lee or Mr Hall.
Conclusion
It is for Ms Chin to prove her case. There is no doubt that she has suffered a serious injury from a vicious assault. However, she must prove some want of care against Daymaster. This requires her to prove first, some relevant duty and then, a breach of that duty on the part of the store employees. Her case is that that the store employees left the rear sliding door to the warehouse unlocked. She has not proved that it is more probable than not that this is the case. On the contrary, the probabilities are that Mr Hall unlocked the door as part of a criminal enterprise as explained above. There are, of course, other matters which she is required to prove in order to establish her case, but this finding is fatal to her case.
The claim must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
ASSOCIATE TO JUDGE GOETZE15 JUNE 2018
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