Lesandu Blacktown Pty Ltd v Gonzalez - [2013] NSWCA 8

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8
Hearing dates: 9 November 2012
Decision date: 08 February 2013
Before: Basten JA at [1];
Meagher JA at [41];
Davies J at [77].
Decision:
(1) Grant the applicant leave to appeal.
(2) Direct the applicant to file, within seven days, the draft notice of appeal.
(3) Allow the appeal and set aside the judgment in the District Court.
(4) Order the respondent to pay the applicant's costs in this Court.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - duty of care - respondent customer injured on applicant's premises as result of collision with third party - third party fleeing premises after being detained by employees of applicant - no general duty owed by applicant to protect customers and the public from actions of third party - whether "special relationship" existed between customer and applicant - whether applicant's ability to control access to and presence on premises and existence of a foreseeable risk of harm of kind suffered by applicant sufficient to give rise to a duty of care - whether primary judge failed to apply ss 5B and 5D of the Civil Liability Act 2002
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D; Part 1A, Div 2
Liquor Act 1982
Supreme Court Act 1970 (NSW), s 101
Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479
Betts v Whittingslowe [1945] HCA 31; 71 CLR 637
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Chapman v Hearse [1961] HCA 46; 106 CLR 112
Chappel v Hart [1998] HCA 55; 195 CLR 232
Graham v Hall [2006] 67 NSWLR 135
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431
Smith v Leurs [1945] HCA 27; 70 CLR 256
Smith v Littlewoods Organisation Ltd [1987] AC 241
Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267
Category: Principal judgment
Parties: Lesandu Blacktown Pty Ltd (Applicant/Appellant)
Manuel Gonzalez (Respondent)
Representation:
Counsel:

J A Gracie (Applicant)
D W Elliott (Respondent)
Solicitors:
Gillis Delaney Lawyers (Applicant)
Gerard Malouf & Partners (Respondent)

File Number(s): CA 2012/56249

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: [2013] NSWCA 8
Decision Date: 08 February 2013

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Lesandu Blacktown Pty Ltd (the applicant) sought to appeal a decision of the District Court concerning a negligence claim brought by Mr. Gonzalez (the respondent). The respondent, a customer on the applicant's premises, sustained injuries when he collided with a third party who was fleeing the premises after being detained by the applicant's employees. The core of the dispute revolved around whether the applicant owed a duty of care to the respondent to protect him from the actions of this third party.

The legal issues before the Court of Appeal included whether the applicant owed a general duty to protect its customers from the actions of third parties, and more specifically, whether a "special relationship" existed between the applicant and the respondent that would give rise to such a duty. The court was also required to consider whether the applicant's control over its premises and the foreseeability of harm of the kind suffered by the respondent were sufficient to establish a duty of care. Furthermore, the appeal raised questions about whether the primary judge had correctly applied sections 5B and 5D of the *Civil Liability Act 2002* (NSW) in determining the existence of a duty of care.

The Court of Appeal found that there was no general duty owed by the applicant to protect its customers from the actions of third parties. The court reasoned that the circumstances did not establish a "special relationship" that would impose a duty of care on the applicant to prevent harm caused by the actions of others. The court concluded that the primary judge had erred in finding that a duty of care was owed and in applying the relevant provisions of the *Civil Liability Act 2002*.

Consequently, the Court of Appeal allowed the appeal, set aside the judgment of the District Court, and ordered the respondent to pay the applicant's costs in the Court of Appeal. The respondent was granted a certificate under the *Suitors' Fund Act 1951* (NSW).

Orders

Orders of the court

(1) Grant the applicant leave to appeal.

(2) Direct the applicant to file, within seven days, the draft notice of appeal.

(3) Allow the appeal and set aside the judgment in the District Court.

(4) Order the respondent to pay the applicant's costs in this Court.

(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8
Hearing dates:	9 November 2012
Decision date:	08 February 2013
Before:	Basten JA at [1]; Meagher JA at [41]; Davies J at [77].
Decision:	(1) Grant the applicant leave to appeal. (2) Direct the applicant to file, within seven days, the draft notice of appeal. (3) Allow the appeal and set aside the judgment in the District Court. (4) Order the respondent to pay the applicant's costs in this Court. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - duty of care - respondent customer injured on applicant's premises as result of collision with third party - third party fleeing premises after being detained by employees of applicant - no general duty owed by applicant to protect customers and the public from actions of third party - whether "special relationship" existed between customer and applicant - whether applicant's ability to control access to and presence on premises and existence of a foreseeable risk of harm of kind suffered by applicant sufficient to give rise to a duty of care - whether primary judge failed to apply ss 5B and 5D of the Civil Liability Act 2002
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D; Part 1A, Div 2 Liquor Act 1982 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Chapman v Hearse [1961] HCA 46; 106 CLR 112 Chappel v Hart [1998] HCA 55; 195 CLR 232 Graham v Hall [2006] 67 NSWLR 135 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 Smith v Leurs [1945] HCA 27; 70 CLR 256 Smith v Littlewoods Organisation Ltd [1987] AC 241 Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267
Category:	Principal judgment
Parties:	Lesandu Blacktown Pty Ltd (Applicant/Appellant) Manuel Gonzalez (Respondent)
Representation:	Counsel: J A Gracie (Applicant) D W Elliott (Respondent) Solicitors: Gillis Delaney Lawyers (Applicant) Gerard Malouf & Partners (Respondent)
File Number(s):	CA 2012/56249