Karatjas v Deakin University
[2012] VSCA 53
•28 March 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0026 | |
| ANNE KARATJAS | Appellant |
| v | |
| DEAKIN UNIVERSITY | Respondent |
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| JUDGES | NETTLE and HANSEN JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 March 2012 |
| DATE OF JUDGMENT | 28 March 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 53 |
| JUDGMENT APPEALED FROM | Karatjas v Deakin University (Unreported, County Court of Victoria, Judge Cohen, 10 February 2011) |
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NEGLIGENCE – Duty of care – University – Contractor engaged by University to conduct on-campus cafeteria – Employee of contractor violently attacked by third party while walking from cafeteria to on-campus car-park – University having exclusive management and control of university campus, including provision and regulation of on-campus car-parks and means of access to and from on-campus car-parks – Whether University owed duty to contractor’s employee to take reasonable care to prevent violent attack by third party while walking on path from cafeteria to on-campus car-park – Relevance of University’s statutory obligation as person having management and control of workplace to provide means of leaving workplace without risks to health – Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, distinguished; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, considered; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; Chomentowski v Red Garter Restaurant (1970) 29 WN (NSW) 1070, Fraser and Fraser v State Transport Authority (1985) 29 SASR 5, Sartori v Public Transport Corporation [1997] 1 VR 168, English v Rogers [2005] NSWCA 327, applied – Occupational Health and Safety Act 2004 (Vic), s 26.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J Ruskin QC with Ms B Y Knoester | Zaparas Lawyers |
| For the Respondent | Mr R J Stanley QC with Mr A W Middleton | Moray & Agnew |
NETTLE JA:
This is an appeal from a judgment and verdict for the respondent (‘Deakin’) which was entered by direction after the trial judge ruled that Deakin did not owe the appellant (‘Mrs Karatjas’) a duty to take care to prevent her being assaulted by a third party while walking from the cafeteria to the car-park on the Deakin University Melbourne campus at Burwood.
The facts
The evidence at trial was not all the one way. For the purposes, however, of determining to direct the jury to return a verdict in favour of Deakin, the judge was required to proceed on the view of the evidence most favourable to Mrs Karatjas which it was open to the jury to take.[1] The following statement of the facts is similarly based upon the view of the evidence most favourable to Mrs Karatjas which it was open to the jury to take.
[1]Naxakis v Western General Hospital and Anor (1999) 197 CLR 269, 271–2 [2] (Gleeson CJ), 273 [12] (Gaudron J), 284 [45] (McHugh J), 289 [58] (Kirby J).
At relevant times, Deakin retained Wilson Security to provide security on the campus. That consisted principally of the provision of two security officers stationed on campus twenty four hours a day seven days a week, who conducted security patrols and policed the Deakin parking regulations. A third officer was available on a more restricted basis to patrol the student residential village at the north west corner of the campus.
At relevant times, the lighting in some of the areas of the campus was sub-standard. In a survey dated 2 May 2005, which was commissioned by Deakin, it was reported that:
Areas of the Melbourne Campus at the time of inspection were not well illuminated. Road lighting and pedestrian lighting performance was not up to design requirements. There were systemically both individual and circuits of lights not operating.
Works to improve the lighting to the standard recommended in the study did not begin until after 16 July 2006, and they were not completed until after Mrs Karatjas was injured on 7 August 2006. According to Deakin records, the improvements involved:
installation of new and restoration of existing external light fittings to ensure that the areas identified comply with current design standards to alleviate potential night time security and safety hazards.
At relevant times, Deakin retained Spotless Services Australia Ltd (‘Spotless’) to operate a cafeteria for students, academic and other staff. It was located near to the centre of the university campus on the west side of the main concourse.
In or about February 2005, Spotless employed Mrs Karatjas to work in the cafeteria. To begin with, her working hours were between 11.00 am and 4.00 pm each week day. In February 2006, they changed to between 11.00 am to 6.00 pm, and sometimes later than 6.00 pm if there were functions, and she was given responsibility for being last to leave and lock up the cafeteria. Consequently, during winter months, it was dark when she finished work each day.
Mrs Karatjas travelled to work by car and parked in the only car-park in which she was permitted to park on campus. It was located 100 or so metres south west of the cafeteria at the eastern edge of the playing fields situate at the western boundary of the campus. Ordinarily, she walked to and from the car-park to the cafeteria by a relatively well lit, wide concrete path which progressed from the cafeteria door, west along the southern side of the cafeteria, then south along the east side of building H3 and then west to the car-park along the south side of building H3. It was described at trial as the ‘blue path’ because it was marked in blue on a map of the campus which was tendered as Exhibit ‘E’.
Approximately three weeks before Mrs Karatjas was injured, Deakin erected barricades on the concrete forecourt to the cafeteria, as part of arrangements for a student union function. The barricades blocked off a substantial section of the blue path. Consequently, Mrs Karatjas was in effect required to use another path, which was narrower and not as well lit, which ran diagonally south west through bushes to building H3 where it joined up with the last section of the blue path. That narrower path was described at trial as the ‘red path’ because it was marked in red on Exhibit ‘E’.
Mrs Karatjas complained to her Spotless supervisor (Garth Watkins), and to two Deakin security guards and a cleaner who came into the cafeteria from time to time, about the fact that the barricades remained up and were blocking the blue path. But nothing was done about it, even though there was no longer any need for the barricades, and so Mrs Karatjas was obliged to continue to use the red path.
The blocking of the blue path corresponded with a failure of security lighting outside the cafeteria. On 6 July 2006, the university cleaner reported that the exterior light was not operating outside ‘H4’; that being the name of the cafeteria building. The problem was not rectified until 29 August 2006, after Mrs Karatjas was injured.
The blocking of the blue path also corresponded with reports that a man was loitering in the bushes along the red path. Mrs Karatjas gave evidence that, before she was attacked, she was told by students of concerns about a man loitering on campus. Her evidence in that respect was corroborated by Garth Watkins who gave evidence that he was told by Deakin security officers, after Mrs Karatjas was attacked, that they had known before she was attacked that a man was loitering in the bushes which bordered the red path.
On the night of 7 August 2006, Mrs Karatjas locked up the cafeteria at approximately 7.00 pm and set off on the red path towards the car-park. It was cold and dark and she walked quickly because she was scared of the dark and of passing between the bushes along the path. They were overgrown and tended to obscure such little light as there was. As she moved along the path, a man jumped out of the bushes, yelled at her and tried to seize her hold-all bag. But she held on to it. He grabbed her by the left arm and started pushing her and she fell to the ground
injuring her knee and arm. Then she heard men’s voices close by and, apparently fearing detection, the attacker fled.
Mrs Karatjas suffered a fracture of her left wrist with consequent De Quervain’s Tenosynovitis and a fracture of her right elbow. Her injuries required repeated surgical intervention and have been productive of lasting pain and suffering.
The day after the attack, Mrs Karatjas reported the matter to Garth Watkins. He took her to the Deakin medical centre where she was x-rayed, and he also reported the matter to Deakin security officers. According to Garth Watkins’ evidence, it was then that the security officers told him that they had been aware before Mrs Karatjas was attacked that a man was loitering in the bushes adjacent to the red path.
After the attack, Deakin trimmed back the bushes along the red path and ejected the man who had been sleeping in the area. Thenceforth, Deakin also provided a security officer to escort Mrs Karatjas from the cafeteria to the car-park each night.
The appellant’s case at trial
Mrs Karatjas’ case at trial was that there was a special relationship between her and Deakin which arose out of Deakin’s engagement of Spotless to conduct the cafeteria for Deakin; Deakin’s knowledge that Spotless engaged employees to operate the cafeteria; Deakin’s management and control of the campus, including its directions as to where Spotless employees engaged in conducting the cafeteria were to park; Deakin’s control of the pathways to and from the car-park to the cafeteria; and thus the assumption by Deakin of responsibility for the security of employees of Spotless engaged in conducting the cafeteria as they moved on campus to and from the cafeteria to the car-park. As counsel for Mrs Karatjas[2] expressed the case in his submissions to the trial judge, by reason of that concomitance of circumstances Deakin owed Mrs Karatjas a ‘Brodribb type’[3] duty of care akin to the duty which is owed by an employer to an employee to take reasonable care to ensure a safe working environment.
[2]Not the same counsel who appeared on the appeal.
[3]Stevens v Brodbribb Sawmilling Company Pty Ltd (1986) 160 CLR 16.
It is to be observed in passing that Mrs Karatjas’ case was not pleaded with the same clarity as counsel achieved in his submissions to the judge. As expressed in the substantive paragraphs of the Statement of Claim endorsed on the Writ, the claim consisted of no more than that: ‘at all material times [Deakin] was a university occupying premises in Burwood, in the State of Victoria’ and Mrs Karatjas ‘was injured [in the course of the attack] as a result of the negligence of [Deakin]’. But the position was to some extent clarified in the particulars given under the heading of ‘Particulars of Negligence of [Deakin]’. It was there alleged that Deakin had been guilty of negligence in, among other ways, failing to provide Mrs Karatjas with safe egress from her place of work; failing to provide any or any appropriate lighting for a pathway likely to be used by Mrs Karatjas at night; causing and further or alternatively allowing Mrs Karatjas to use an unlit pathway through a bush park at night to access her car with consequent unreasonable risk of injury to her in the circumstances; and ‘failing to comply with the provisions of the Occupational Health & Safety Act 2004 and the regulations made thereunder’. In substance, counsel’s submission to the judge tracked the particulars.
In any event, there does not seem to have been any objection taken to the pleading or any complaint that counsel for Mrs Karatjas put the case in terms which deviated from the pleading. Possibly, the judge should have required the statement of claim to be amended to accord to counsel’s submissions.[4] But the fact that it was not amended is not fatal. Failure to amend does not necessarily preclude a judgment
upon the facts as have emerged.[5] It is necessary to look at the actual conduct of the case to see whether the point was taken at trial.
[4]Wong v Mura [2001] NSWCA 366, [4].
[5]Dare v Pulham (1982) 148 CLR 658; Water Board v Moustakas (1988) 180 CLR 491, 497; Tourello Nominees Pty Ltd v Begg Dow Priday Advertising Pty Ltd [1986] ANZ Conv R 613, (1986) V Conv R 54–185.
Deakin’s case at trial
Deakin’s case at trial was that the facts of this case were relevantly indistinguishable from those in Modbury Triangle Shopping Centre Pty Ltd v Anzil[6] and, by analogy with the decision in ModburyTriangle, that Mrs Karatjas failed to establish that Deakin owed her a duty of care to guard against the risk of criminal attack of the kind to which she was subject.
[6](2000) 205 CLR 254.
The judgment below
In effect the judge accepted Deakin’s submission. Her Honour ruled that:
In my view just because the university provided some security services to the overall outside areas of the campus, and the availability of a personal escort if requested, does not go far enough so as to create a duty of care in it as occupier equivalent to that of an actual employer. For one thing, the university had no control over when or in what circumstances the plaintiff was to leave her work each day, such as locking up alone, and if that was after dark whether she should be alone…
…
In my view – and assuming that this evidence [of the security guards having known of a man loitering in the bushes before Mrs Karatjas was attacked] is all accepted – this does not take the case outside the limits on the occupier’s duty of care enunciated in the Modbury Triangle case…
…
… In my view [the jury] could not properly infer from that evidence that knowledge of the presence of that person created the high degree of foreseeability that she or another person walking on the pathway at night would be attacked, absent any other evidence connecting the presence of that person with the attack on Mrs Karatjas or on any other person on the campus.
…
In my view the assumption of responsibility by [Deakin] for the maintenance of the pathway, bushes and lighting, is no more than pursuit of the occupier’s general duty of care in relation to the state of the premises whether for the purpose of safety or security. The only extra feature here is that it did take on provision of some security services, by having two guards 24 hours a day on site, and sometimes three, and that their duties included providing a security escort on the campus to persons who requested it.
…
… I accept that the evidence is capable of showing a recognition by [Deakin] of a risk – that is foreseeability of the risk of such incidents as assaults or robbery occurring on its lawful entrants. However, as I understand the majority judgments in the Modbury case, the assumption of some degree of responsibility for the security of users of its premises [and] the provision of some security services would not extend the occupier’s duty beyond what limited protection those services could provide, and would not extend it to a duty to take reasonable care to prevent assaults or other criminal acts on all persons on its premises.
Modbury Triangle
In Modbury Triangle[7] the High Court held that mere reasonable foreseeability of a criminal attack being made by a third party on a plaintiff on premises occupied by a defendant is not a sufficient basis to impose on the occupier defendant a duty to take reasonable care to prevent that harm. It follows from Modbury Triangle that the mere fact that Deakin was the occupier of the campus would not have been a sufficient basis to impose a duty of care on Deakin to guard entrants to the campus against the risk of criminal attacks by a third party on the campus. To that extent, the judge’s ruling was unexceptionable.
[7]Ibid.
As Gleeson CJ took care to point out in Modbury Triangle, however:
there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee.[8]
[8]Ibid 265 [26] (citations omitted).
Further, as Hayne J explained, where the relationship is one of employer and employee:
… an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harm’s way. The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty … in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken.[9]
[9]Ibid 292 [110] (citations omitted).
The duty to protect an employee from criminal behaviour
The kind of duty to which Hayne J referred was recognised by the New South Wales Court of Appeal in Chomentowski v Red Garter Restaurant Pty Ltd.[10] There a court comprised of Sugerman P and Asprey and Mason JJA held that that the proprietor of a restaurant owed to one of its waiter employees a duty to take reasonable care to guard him against the risk of criminal attack while transporting the restaurant’s takings for the evening to be deposited into a night safe at a bank. As Mason JA said:
That the defendants owed a duty of care to the plaintiff is not in controversy. The defendants as employers of the plaintiff were under a duty to take reasonable care for his safety in all the circumstances of the case[11] or, as it was put by Lord Herschell in Smith v Baker,[12] so to carry on their operations as not to subject the plaintiff to an unnecessary risk.
The first question to arise in the present case is whether it was reasonably foreseeable that by requiring the plaintiff to deliver the takings to the night safe without taking any precautions the defendants were exposing him to a likely risk of injury…
…
… I should have thought that the occurrence of some such event as that which occurred was by no means improbable and that it could be reasonably foreseen as the likely result of sending the plaintiff on the errand on which he was sent in the absence of any protection designed to safeguard him from the danger to which he was exposed.[13]
[10](1970) 92 WN (NSW) 1070.
[11]Paris v Stepney Borough Council [1951] AC 367.
[12][1891] AC 325, 362.
[13](1970) 29 WN (NSW) 1070, 1084.
Chomentowski was decided when reasonable foreseeability was still conceived of as the principal criterion of duty. Later, there was a period in which the High Court focused greater attention on what Brennan J described in Hawkins v Clayton[14] as the ‘Delphic criterion’ of proximity.[15] Later still, the High Court discarded the idea of proximity as a principle. Now, according to more recent pronouncements, the test is ‘whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated’.[16] In turn, that entails the application of what different members of the High Court have variously described as ‘principle and policy’,[17] ‘the totality of the relationship between the parties’,[18] a ‘fact-value complex’, and ‘questions of fairness, policy, practicality, proportion, expense and justice’.[19] At the same time, a majority of the High Court have rejected the idea that those tests are synonymous with the English criteria of ‘fair, and just and reasonable’,[20] albeit recognising that they may lead to the same result.[21]
[14](1988) 164 CLR 539, 555.
[15]See Sappideen and Vines, Fleming’s The Law of Torts, 10th Ed, [8.20].
[16] Tame v New South Wales (2002) 211 CLR 317, 331 [12] (Gleeson CJ); see also Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [45] (per the Court).
[17]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 32 [73] (McHugh J).
[18]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 596 [145] (Gummow and Hayne JJ).
[19]Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79] (McHugh J).
[20]Sullivan v Moody (2001) 207 CLR 562, 579 [49] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); but cf Perre v Apand Pty Ltd (1999) 198 CLR 180, 275–6 [259]–[261] (Kirby J) and Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 275 [62] (Kirby J, in diss).
[21]Vairy v Wyong Shire Council (2005) 223 CLR 422, 444–5 [66]–[67] (Gummow J).
The authority of Chomentowski is not in doubt, however. Over the last 20 years, it has been followed and applied repeatedly, with the result that the aspect of an employer’s duty of care which it identified is now well established and its nature is well understood.[22]
[22]Cf Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 262 [13] (Gleeson CJ).
Not long after Chomentowski was decided, Bollen J held in Fraser and Fraser v State Transport Authority[23] that the South Australian State Transport Authority owed a duty to its bus drivers to take reasonable steps to guard them from attacks by third parties and hence that, by requiring a female bus driver to drive her bus to a terminus and stop there in a lay-over for five minutes, where she was attacked, the authority had been negligent in failing to provide a safe system of work. After referring to Chomentowski, Bollen J continued:
I think that the risk of injury was real and foreseeable. I think the magnitude and its degree of probability was such that action by the defendant was demanded. Applying Hamilton v Nuroof (WA) Pty Ltd.[24] I think that the degree of injury and the degree of risk was each sufficient to call for action by the defendant. Chomentowski’s case leads to the same conclusion. True it is, I say again, that assaults like those on Miss Byron and Mrs Fraser rarely happen. But that does not mean that the risk of serious brutal assault on operators was ever so far fetched as not to be real and capable of being foreseen.
The nature of the society in which we live denies that an employer who sends an employee to quiet places cannot foresee a risk of serious assault on that employee. And that risk is increased if the employee is female. The risk of sexual assault can and should be foreseen by the employer. It is a very real risk in this day and age…[25]
[23](1985) 39 SASR 57.
[24](1956) 96 CLR 18.
[25](1985) 39 SASR 57, 68.
Later, in Public Transport Corporation v Sartori,[26] this court held that an employer’s obligation to provide a proper system of work extended to security of the personal safety of the employee. Consequently, in circumstances where an employer provided an apparently secure car-park for the use of its employees, expecting them to enter and leave the car-park in the dead of night, it was held that the employer owed to the employees a duty to take reasonable care to guard them against the risk of criminal attack by third party trespassers. Charles JA, who delivered the principal judgment, said that:
The security precautions taken by the appellant were directed to preventing the entry into the carpark of intruders such as the plaintiff's assailant. If those security precautions were undertaken without due care, a dangerous situation would be likely to arise from the wrongful entry of trespassers with criminal intent, especially late at night. The entry of such wrongdoers could properly be called a normal risk of the egress from the premises which the appellant encouraged its employees to use. In circumstances where an employer provides an apparently secure carpark for the use of its employees, expecting them to enter and leave the carpark at dead of night, I should have thought that proximity, the foreseeability of injury and the existence of a duty were all readily apparent. There might be situations in which it would be necessary to consider whether the circumstances giving rise to the duty of care were sufficiently connected with the course of the plaintiff's employment. In this case I think they were plainly so connected: cf Chomentowski v Red Garter Restaurant;[27] Fraser and Fraser v State Transport Authority.[28] For all these reasons the appellant's first submission should, I think, be rejected.[29]
[26][1997] 1 VR 168.
[27](1970) 92 WN (NSW) 1070, 1073 (Sugerman P) and 1084 (Mason JA).
[28](1985) 39 SASR 57, 64, 66–8(Bollen J).
[29][1997] 1 VR 168, 173.
Other more recent cases in which the duty has been recognised and applied include English v Rogers[30] in which the New South Wales Court of Appeal held that the owner of an hotel was liable for injuries sustained by an employee of a contract hotel cleaner when ambushed while working cleaning the hotel in the early hours of the morning, and Gittani Stone Pty Ltd v Pavkovic,[31] in which the New South Wales Court of Appeal held an employer liable for injuries sustained by an employee when shot by another employee after leaving the place of employment.
[30][2005] NSWCA 327.
[31][2007] NSWCA 355.
Accordingly, in this case it was not and is not disputed that Spotless, as Mrs Karatjas’ employer, owed to her a duty to take reasonable care to provide a safe system of work, including providing safe means of ingress and egress to and from work, and thereby to protect her against the risk of being robbed as she locked up and left the cafeteria in the darkness of an August night. The question here is whether Deakin, which was not her employer, owed her a similar duty.
The duty to protect employees of a contractor from criminal behaviour
As was earlier noted, the judge rejected Mrs Karatjas’ contention that Deakin owed a similar duty, for the reason, the judge said, that it was not enough that Deakin provided ‘some security services to the overall outside areas of the campus… to create a duty of care in it as occupier equivalent to that of an actual employer’.
With respect, however, Mrs Karatjas’s case was not that Deakin owed her a duty of care just because it provided ‘some security services to the overall outside areas of the campus’. It was rather and more importantly because, as the party who retained Spotless as contractor to conduct the cafeteria for the benefit of students and university staff, Deakin owed Mrs Karatjas what counsel described in his submissions to the judge as a ‘Brodribb type’[32] duty of care. The judge did not deal with that contention.
[32]Stevens v Brodbribb Sawmilling Company Pty Ltd (1986) 160 CLR 16.
In Brodribb,[33] Mason J said that, where a party engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work, and where there is a need for that party to give directions as to when and where the work is to be done, that party has an obligation to prescribe a safe system of work, and the fact that the contractors are not the party’s employees or that the party does not retain a right to control them in the manner in which they carry out their work, does not affect the existence of the party’s obligation to prescribe a safe system of work.[34] Wilson and Dawson JJ,[35] Brennan J[36] and Deane J[37] expressed similar views.
[33]Ibid.
[34]Ibid 31.
[35]Ibid 45.
[36]Ibid 47.
[37]Ibid 53.
Parity of reasoning implies that, where a defendant retains an independent contractor to carry out work; the contractor carries out the work through the agency of employees; and there is a need for the defendant to give directions as to when and where work is to be done by those employees, the defendant owes to the employees an obligation to provide a safe system of work in relation to those aspects of the work.
Of course, there is a difference. In Brodribb, there was a contractual relationship between the principal and the contractor. In a case like this, where the principal retains a contractor and the contractor engages the employees, there is no contract between the principal and the injured employee. But the lack of a contract is not determinative. Liability in negligence turns on foreseeability and proximity, the total relationship between the parties and questions of fairness, policy, practicality, proportion, expense and justice. Contract aside, the question is whether it is reasonable to require the principal to have in contemplation the risk of injury to the worker which eventuates. Hence, as English shows, where a principal retains a contractor who engages employees, but the principal retains control over some aspect of the work, it may be reasonable for the principal to have in contemplation the risk of injury to the contractor’s employee arising out of that aspect of the work.
More generally, in terms of foreseeability, it can be just as foreseeable that the employees of the contractor are likely to be hurt in carrying out that aspect of the work as if the principal had retained the employees directly. In terms of proximity, or the total relationship between the parties, there may be little in reality to distinguish between the relationship between principal and contractor with respect to an aspect of the system of work over which the principal retains control and the relationship between principal and contractor’s employee with respect to an aspect of the system of work over which the principal retains control. And in terms of ‘principle and policy’, the ‘fact-value complex’ and ‘questions of fairness, policy, practicality, proportion, expense and justice’, where a principal retains control over some aspect of the system of work, it is likely to be just as reasonable to require the principal to have in contemplation the risk of injury to an employee of a contractor as it is to have in contemplation a similar risk to the principal’s employee.
Distinguishing English
Counsel for Deakin argued that English was very different to this case in that the hotel in English exercised a co-ordinating role in a situation when its activities helped to create the relevant risk; the hotel knew that the cleaner was in a specially vulnerable situation; the cleaner’s access to and within the workplace was controlled by the hotel whose managers also gave the cleaner directions from time to time as to the mode of performance of his work; and those directions included directions to make sure that all doors were locked and the alarms activated before leaving. It was only on that basis, counsel said, it was held that:
[t]he relationship between the [hotel] and [the cleaner] was … so closely analogous to that of an employer, at least as regards safety in the workplace, as to generate a duty of care that was not trumped by glib citation of Modbury.[38]
[38]English v Rogers [2005] NSWCA 327, [87].
In contrast, counsel submitted, Deakin did not exercise a co-ordinating role; it did not create or help create the risk of physical attack; it did not know or have reason to believe that Mrs Karatjas was especially vulnerable; and it did not control Mrs Karatjas’ access to and within the workplace or give directions as to the mode of performance of her work or require her to lock up and activate alarms. As counsel put it, the relationship between Deakin and Mrs Karatjas was nothing like that between employer and employee or otherwise such as to invoke a duty of care of the kind contended for.
There is some substance in those submissions. Evidently, there are some differences between English and this case, and the most obvious of them is that Deakin did not exercise any control over the mode of performance or Mrs Karatjas’ work in the cafeteria. But the differences are not as great as counsel suggested and, in terms of principle, the fact that there are differences does not gainsay that Deakin owed Mrs Karatjas a relevant duty.
It is true that Deakin did not exercise a co-ordinating role in the way that the hotel did in English. Deakin’s retainer of Spotless as a reputable independent contractor may well have meant that Deakin was entitled to rely on Spotless to prescribe a safe system of work within the confines of the cafeteria[39] and would not have been liable for an injury suffered by a Spotless employee by reason of an unsafe
work practice adopted within the cafeteria.[40] Other things being equal, Deakin might also have been entitled to rely on Spotless to attend to the safety of employees travelling to and from the cafeteria and would not have been liable therefor. But, in this case, other things were not equal for the reason that, beyond the confines of the cafeteria, Deakin exercised exclusive powers of management and control over the campus, including power to direct where Spotless employees should park their cars and, in effect, the paths which should be made available to them in order to pass between that car-park and the cafeteria. To that extent at least, Deakin did retain a power of supervision.
[39]Cf Stevens v Brodbribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, 47–8 (Brennan J).
[40]On the evidence, there is nothing to suggest that Deakin retained the right or ever attempted to give directions as to when or where work was to be done within the cafeteria, otherwise (it might be supposed) than by means of a contractual specification as to the quality of work and health and safety standards required.
It is true that Deakin did not create the risk of attack on Mrs Karatjas in the same way that the hotel in English created the risk of attack on the cleaner - by directing the cleaner to clean in a dangerous environment. But Deakin did create or exacerbate the risk of attack on Mrs Karatjas by directing her as to where she was to park her car and then barricading the blue path so as to leave her with only the poorly lit and overgrown red path as the sole practical means of getting from the cafeteria to the car-park during the hours of darkness.
It is also true that, according to the evidence, Deakin did not know of any previous attacks, in the sense that the hotel in English knew that there had been previous attacks on hotel staff. But Deakin did know, if indeed it did not specify, the hours of operation of the cafeteria and thus that, in winter months, the cafeteria closed in hours of darkness. Deakin also knew that it was part of Mrs Karatjas’ responsibility to lock up the cafeteria and thus that, in winter months, she was required to do so during the hours of darkness. Deakin knew, too, that its campus lighting was sub-standard and productive of ‘potential night time security … hazards’. In fact, Deakin was sufficiently concerned about the risk of attacks on students and members of university staff during hours of darkness that it made available to students and staff on request a security officer escort service. Deakin was also sufficiently concerned about the risks of robbery on campus during the hours of darkness to have provided a security officer escort for another Spotless employee when taking the day’s earnings from the internet café elsewhere on campus to the safe in the cafeteria.
Moreover, Deakin knew, before Mrs Karatjas was attacked, that a man was loitering in the bushes adjacent to the red path, and it did not eject him from the campus until after Mrs Karatjas was attacked. Deakin knew that Mrs Karatjas was concerned about having to use the red path in those circumstances, but it did nothing about it. Deakin declined to remove the barricades, even though the need for them to be there had passed, and it did not offer the security officer escort service either directly to Mrs Karatjas, or through Spotless to her, until after she was attacked. To that extent at least Deakin did know that Mrs Karatjas was particularly vulnerable.
Distinguishing Modbury Triangle
Counsel for Deakin invoked the observations of Gleeson CJ in Modbury Triangle[41] that, in the absence of contract or other special relationship, it is contrary to principle to impose a burden upon an occupier of land to prevent harm to somebody lawfully on the land from the criminal behaviour of a third party who comes onto the land, and that the principle cannot be negated by listing all the particular facts of the case and applying to them the question-begging characterisation that they are special.
[41](2000) 205 CLR 254, 268 [35] (Gleeson CJ).
No doubt that is so although one might be forgiven the thought that the line which separates question-begging characterisation from logical conclusion is not always clear. This is not a case, however, of randomly aggregating the facts of the case and applying to them the question-begging characterisation of special. It is one of identifying the well established special relationship identified in Brodribb and examining whether on the particular facts of this case Deakin owed Mrs Karatjas a ‘Brodribb’ type duty of care sufficient to distinguish this case from Modbury Triangle. In my view it did.
Given that an employer’s obligation to provide a proper system of work extends to securing the personal safety of the employee entering and leaving a car-park which the employee is encouraged to use, as this court held in Sartori; and that, in this case, Deakin exercised control over that aspect of the system of work by determining where cafeteria employees should be encouraged to park their cars and the paths which should be made available for passage from there to the cafeteria, I consider that Deakin did owe a duty to cafeteria employees of a ‘Brodribb type’ to take reasonable care to secure the personal safety of Spotless employees moving to and from the car-park to the cafeteria; and, in particular, to secure those employees against what the judge found was a foreseeable risk of Spotless employees being attacked as they moved between the car-park and the cafeteria.
In terms of foreseeability, and thus in terms of the analysis undertaken by Bollen J in Fraser v State Transport Authority, the nature of the society in which we live denies that an organisation which encourages an employee of its cafeteria contractor to park in a remote, dimly lit car-park towards the edge of the campus, and to move to and from that car-park to the cafeteria during hours of darkness by means a dimly lit and overgrown path, cannot foresee a risk of serious assault on that employee. And especially is that so where the employee is a woman.
In terms of proximity, and thus in terms of the reasoning expressed in Public Transport Corporation v Sartori,[42] in circumstances where Deakin required or at least encouraged Mrs Karatjas as an employee of Deakin’s contractor to run the risk of moving to and from the car-park during the hours of darkness, by means of the inadequately lit and overgrown red path which was believed to be frequented by a man loitering in the bushes, and when it was known that Mrs Karatjas was concerned for her safety, proximity or special relationship, foreseeablity and thus the existence of duty were all readily apparent.
[42][1997] 1 VR 168, 173.
Equally, in terms of fairness, policy, practicality, proportion, expense and justice, a duty to take reasonable care to prevent Mrs Karatjas being attacked as she moved from the cafeteria to the car-park required Deakin to do no more than comply with the obligations imposed on it under s 26 of the Occupational Health and Safety Act 2004, to ensure so far as reasonably practicable that Mrs Karatjas’s means of entering and leaving her workplace on the campus were safe and without risks to health. The existence of the obligation imposed by s 26 is thus some evidence of[43] and further or alternatively supports[44] the existence of the duty at common law which I have identified.
[43]Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, 102.
[44]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 437 [26].
As counsel for Deakin submitted, the observations of Heydon JA (as his Honour then was) in Proprietors of Strata Plan 17226 and Anor v Drakulic[45] tend to point the other way. In that case, his Honour noted that the reasoning in Modbury Triangle rested not only upon resistance to the notion of making occupiers of premises liable for the criminal conduct of third parties but also on a more general aversion to what his Honour described as the ‘irrationality of making a defendant liable for not preventing conduct which the efforts of society as a whole through the legislature, the police force and the criminal courts are directed to preventing’.[46] His Honour’s remarks were grounded in statements to similar effect made by Hayne J in Modbury Triangle. On one possible view of them, it would never be reasonable to require a person to have in contemplation the risk of injury inflicted by the criminal conduct of a third party.
[45](2002) 55 NSWLR 659, 678–9 [69]–[73].
[46]Ibid 678 [72].
That does not appear to be the way, however, in which the High Court, including Hayne and Heydon JJ, approached the problem in the later case of Adeels Palace Pty Ltd v Moubara.[47] In Adeels, their Honours stressed the importance of recognising that the duty alleged in Modbury Triangle was said to be founded only on the defendant’s position as occupier of the land controlling the physical state of the land, and that what was said in ModburyTriangle must be understood as responding to those arguments. As Adeels shows, it is different where there are considerations which set a case apart from Modbury Triangle.[48]
[47](2009) 239 CLR 420, 435–6 [23]–[24] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).
[48]See, too, Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Rep 81-636, [666], (Heydon JA) ; TAB Ltd v Beaman [2006] NSWCA 345, [85] and [86] (Young CJ in Eq).
I approach this case accordingly. As it seems to me, there are four important considerations which set this case apart from Modbury Triangle.[49] First and foremost, the complaint in this case is not that Deakin as occupier of the campus failed to provide lights adequate to deter an attack on an entrant to the campus. It is that Deakin, as the party who retained Spotless to run the cafeteria on Deakin’s campus for the benefit of Deakin, and retained control over that part of the work place encompassed in the pathway to and from the car-park which it encouraged Spotless employees to use, provided an unsafe system of work by requiring or at least encouraging Mrs Karatjas to park her car where she did and then closing off the safe blue path to and from that car-park.
[49]Cf Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 436–7 [25].
Secondly, unlike Modbury Triangle, where the occupier had no knowledge of or interest in the time of day at which the plaintiff came to the car-park, Deakin either required or authorised Spotless to keep the cafeteria open as long as it did for the benefit of academic staff and students and thus Deakin knew or ought to have known that Spotless employees were likely to walk to and from the cafeteria to the car-park during hours of darkness. In this case, it did know, because Mrs Karatjas told the Deakin security guards of her concerns about the closure of the blue path and, for the reasons already given, it knew or ought to have known that Mrs Karatjas was particularly vulnerable.
Thirdly, unlike Modbury Triangle, where compliance with a duty of the kind contended for would have required the occupier to keep the parking station lights on all night or for an indeterminate extra period (which the majority of the Court appears to have thought would impose an unreasonable burden on the occupier),[50] compliance with the duty to take reasonable care to guard Mrs Karatjas against the risk of attack as she moved from the cafeteria to the car-park would have required no more of Deakin than to remove the barricades and thereby restore Mrs Karatjas’ access to the blue path, and further or alternatively to make available to Mrs Karatjas the security officer escort service which Deakin already made available to university staff and students, and to the internet café employee, and which Deakin was prepared to make available to Mrs Karatjas after she was attacked.
[50]See, for example, (2000) 205 CLR 254, 266 [29] (Gleeson CJ); compare, however, the dissenting analysis of Kirby J, at (2000) 205 CLR 254, 285–6 [90].
Finally, unlike Modbury Triangle where recognition of the duty contended for would have subjected the occupier to an obligation not previously known to law, for Deakin to comply with a duty to take reasonable care to guard Mrs Karatjas against the risk of attack would have required Deakin to do no more than comply with the obligations to which it was already subject under s 26 of the Occupational Health and Safety Act 2004, to ensure so far as reasonably practicable that Mrs Karatjas’s means of entering and leaving her workplace on the campus were safe and without risks to health.[51]
[51]Cf Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 436–7 [25].
Alternative basis of liability
Before this court, counsel for Mrs Karatjas submitted that, if it were found that Deakin did not owe to Mrs Karatjas the ‘Brodribb type’ duty of care for which he contended, it should be found that Deakin as occupier of the campus nonetheless owed Mrs Karatjas a duty to take reasonable care to guard her against the risk of physical attack, based on the fact that Deakin had assumed responsibility for the
safety and security of persons on campus, and thus to exclude persons who would pose a danger to the physical safety of lawful entrants.
In case it matters, I do not think that the argument takes the matter any further. As Gleeson CJ said in Modbury Triangle, it is necessary to distinguish between the two different meanings of responsibility: capacity and obligation. Apart from sometimes providing a security officer escort service, there is no evidence here to support the idea that Deakin had the capacity to provide for the protection of all lawful entrants against physical attack by a third party. Moreover, even if Deakin had that capacity, there is nothing to show that it ever exercised it for the purposes of excluding a person suspected of being a threat, at least until after the attack on Mrs Karatjas, still less assumed an obligation to provide for the security of all persons lawfully on campus by excluding persons who might be a danger to lawful entrants.[52]
[52]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 264 [23] (Gleeson CJ).
Contrastingly, the duty which Deakin owed to Mrs Karatjas was a duty, to adopt Hayne J’s expression in Modbury Triangle, to prevent her getting ‘in harm’s way’:[53] by controlling her and the system for her entry and exit to and from her place of work. It was a duty, akin to the duty in Brodribb, which existed because of the relationship between Deakin and Mrs Karatjas the result of Deakin retaining exclusive control over the means of entry and exit to Mrs Karatjas’s place of work as opposed to Deakin’s position as the occupier of the campus or the place of work. It was a duty to provide a safe system of entry and exit to the place of work; not to control the conduct of others on the campus or otherwise.
[53]Ibid 292 [110] (Hayne J).
Conclusion and orders
For those reasons, I would allow the appeal and set aside the judgment and verdict below. In lieu thereof, I would declare that, assuming the facts were as or substantially as set out above, at relevant times Deakin owed to Mrs Karatjas a duty
to use reasonable care to secure her personal safety against the foreseeable risk of her being physically attacked as she moved from the cafeteria to the car-park via the red path during the hours of darkness.
On that basis, I would order that the matter be remitted to the County Court to be retried by a different judge and jury.
HANSEN JA:
I agree with Nettle JA.
KYROU AJA:
I also agree with Nettle JA.
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