Inghams Enterprises Pty Ltd v Tat - [2018] QCA 182

SUPREME COURT OF QUEENSLAND

CITATION:

Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182

PARTIES:

INGHAMS ENTERPRISES PTY LTD
ACN 130 793 609
(appellant)
v
KIM YEN TAT
(respondent)

FILE NO/S:

Appeal No 5334 of 2017
DC No 2317 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)
General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 2 May 2017
(Martin SC DCJ)

DELIVERED ON:

3 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2017

JUDGES:

Gotterson and Morrison JJA and Bond J

ORDERS:

1.   The applicant is granted leave to appeal.

2.   The appeal is allowed.

3.   The judgment of the primary judge is set aside and in lieu thereof it is ordered that judgment is entered for the applicant on the respondent’s claim.

4.   The respondent must pay the applicant’s costs of the proceeding below, and of the application for leave to appeal.

CATCHWORDS:

APPEALS AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – GENERALLY – where the respondent brought an action in negligence – where the respondent was employed by the appellant – where the respondent was attacked by a third party in the appellant’s car park – whether the primary judge erred in finding the risk was reasonably foreseeable – whether the primary judge erred in finding the appellant breached its duty of care – whether the primary judge erred in finding the breach caused the injury

APPEALS AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – GENERALLY – where the primary judge found the appellant’s breached its duty of care by failing to educate staff as to security awareness – where the primary judge found that with proper education security would have intervened to prevent the injury to the respondent – where intervention turned on whether other employees would have reported suspicious conduct and identified the assailant – whether the primary judge erred in inferring that a different course of events would have occurred

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – OTHER GENERAL FACTORS – where the primary judge found there was a not insignificant risk of third party violence to female employees in the appellant’s car park late at night – whether the primary judge erred in concluding the risk met the “not insignificant” threshold

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the primary judge found the appellant breached its duty of care by failing to educate its employees to report suspicious behaviour and by failing to implement security measures geared towards addressing the risk of third party violence – where the primary judge made reference to a staff instruction issued immediately after the incident – where the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCA 182
Decision Date: 3 August 2018

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd was the appellant in an appeal against a judgment in favour of the respondent, Tat, who brought an action in negligence. Tat was employed by Inghams and was attacked by a third party in the appellant’s car park. The appeal challenged the primary judge’s findings that the risk of third-party violence was reasonably foreseeable, that the appellant breached its duty of care, and that this breach caused Tat’s injury.

The court was required to determine whether the primary judge erred in finding the risk of third-party violence was reasonably foreseeable, whether the primary judge erred in finding the appellant breached its duty of care, and whether the primary judge erred in inferring that a different course of events would have occurred had reasonable steps been taken to give workers security awareness training. The court needed to consider whether the primary judge’s findings involved the application of hindsight and whether the primary judge failed to provide adequate reasons.

The court found that the primary judge’s conclusions concerning the events that would have occurred had reasonable steps been taken to give workers security awareness training were not supported by the evidence. The court held that the evidence did not give rise to a reasonable and definite inference in favour of the conclusions that at least one worker would have reported Brain to security, that the security guard would have found Brain, that the guard would have required Brain to leave the car park, and that Brain would have complied and not returned in time to injure Tat. The court noted that the degree of apprehension experienced by the workers varied, and it was speculative to conclude that security awareness training would have changed the nature of their perception of Brain. Therefore, the court found that the primary judge erred in inferring that a different course of events would have occurred.

ORDERS:
1. The applicant is granted leave to appeal.
2. The appeal is allowed.
3. The judgment of the primary judge is set aside and in lieu thereof it is ordered that judgment is entered for the applicant on the respondent’s claim.
4. The respondent must pay the applicant’s costs of the proceeding below, and of the application for leave to appeal.

Orders

Orders of the court

1. The applicant is granted leave to appeal.

2. The appeal is allowed.

3. The judgment of the primary judge is set aside and in lieu thereof it is ordered that judgment is entered for the applicant on the respondent’s claim.

4. The respondent must pay the applicant’s costs of the proceeding below, and of the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant submitted, correctly, that it was either expressed or implied in the conclusion reached by the primary judge that he made a finding on the balance of probabilities in favour of each of the following four conclusions concerning the events which would have occurred had reasonable steps been taken to give workers security awareness training:(a)Conclusion 1: at least one of the workers involved in the three encounters which took place between 11:00pm and 11:45pm would have been sufficiently concerned about Brain that they would have called security and reported the details of the encounter they had had with Brain;(b)Conclusion 2: the security guard receiving the report would have left the security office and would have found Brain;(c)Conclusion 3: the interaction between the security guard and Brain would have had the outcome that the guard required Brain to leave the car park; and(d)Conclusion 4: Brain would have complied, and, critically, would not have returned in time to encounter and injure the respondent. The applicant challenged those conclusions. It submitted that a proper evaluation of the evidence did not permit the finding that they had been established on the balance of probabilities. For the reasons which follow, I agree that the evidence did not give rise to a reasonable and definite inference in favour of the conclusions. The question is whether at least one of the workers involved in the three encounters which took place between 11:00pm and 11:45pm would have would have been sufficiently concerned about Brain that they would have called security and reported the facts justifying that concern. It may be accepted (as the respondent submitted) that a likely outcome of the applicant taking reasonable steps to give workers security awareness training is that workers would take steps to report suspicious conduct to security. But the report would not occur unless the worker perceived the conduct as suspicious and had the means and opportunity to make the report in a timely manner. The evidence of the female workers Brain approached was that Brain’s conduct caused each of them to experience a degree of apprehension. However the degree to which that occurred varied and the level of apprehension which they say they experienced must be thought to have been expressed by them through the prism of hindsight and with the knowledge that Brain had actually posed a danger to them. As to Ms An:(a)Ms An gave evidence at the trial. She did not report anything to the security guard even though after Brain’s approaches to her she returned to the security office to pick up the car key which her husband had left for her there. She plainly had the means and opportunity to make a report.(b)She thought that when she started work with the applicant in 2012 she had been told to report to security anything unusual.[33] The following question and answer is telling:Is there any reason why you didn't report this incident to the security guard that night?---I was finishing work and I was just - I thought it was just strangers come in and ask direction for the train station.But you were scared?---Yes. But - yeah, it was - I was just trying to find my parking - my car to go home.[34](c)There is no evidentiary basis to conclude that security awareness training would have changed the nature of Ms An’s perception of Brain. The result is that it seems to me to be speculative to conclude that Ms An would have reported Brain to security had she received security awareness training.[33] T3-45 at lines 33-40: AR274 and T3-47 at lines 34-46: AR276.[34] T3-45 at lines 42 to 47: AR274.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182
PARTIES:	INGHAMS ENTERPRISES PTY LTD ACN 130 793 609 (appellant) v KIM YEN TAT (respondent)
FILE NO/S:	Appeal No 5334 of 2017 DC No 2317 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil) General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 2 May 2017 (Martin SC DCJ)
DELIVERED ON:	3 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2017
JUDGES:	Gotterson and Morrison JJA and Bond J
ORDERS:	1. The applicant is granted leave to appeal. 2. The appeal is allowed. 3. The judgment of the primary judge is set aside and in lieu thereof it is ordered that judgment is entered for the applicant on the respondent’s claim. 4. The respondent must pay the applicant’s costs of the proceeding below, and of the application for leave to appeal.
CATCHWORDS:	APPEALS AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – FINDINGS ON ISSUE OF NEGLIGENCE – GENERALLY – where the respondent brought an action in negligence – where the respondent was employed by the appellant – where the respondent was attacked by a third party in the appellant’s car park – whether the primary judge erred in finding the risk was reasonably foreseeable – whether the primary judge erred in finding the appellant breached its duty of care – whether the primary judge erred in finding the breach caused the injury APPEALS AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – GENERALLY – where the primary judge found the appellant’s breached its duty of care by failing to educate staff as to security awareness – where the primary judge found that with proper education security would have intervened to prevent the injury to the respondent – where intervention turned on whether other employees would have reported suspicious conduct and identified the assailant – whether the primary judge erred in inferring that a different course of events would have occurred TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – GENERALLY – OTHER GENERAL FACTORS – where the primary judge found there was a not insignificant risk of third party violence to female employees in the appellant’s car park late at night – whether the primary judge erred in concluding the risk met the “not insignificant” threshold TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where the primary judge found the appellant breached its duty of care by failing to educate its employees to report suspicious behaviour and by failing to implement security measures geared towards addressing the risk of third party violence – where the primary judge made reference to a staff instruction issued immediately after the incident – where the…