Medical Board of SA v Wong No. DCCIV-97-216 Judgment No. D3925

[1998] SADC 3925

TONY PAUL ANZIL AND CHRISTINE ANZIL

v
MODBURY TRIANGLE SHOPPING CENTRE PTY LTD
[1999] SADC D3935

HIS HONOUR JUDGE DAVID
CIVIL JURISDICTION

1 The plaintiffs’ claim damages against the defendant for personal injuries to Tony Paul Anzil as a result of being criminally assaulted by three people on the evening of the 18th July 1993.
2 It has been agreed that if the plaintiff Tony Paul Anzil succeeds damages to be agreed will be awarded to the second plaintiff his wife, Christine Anzil.  For the purposes of my judgment I will refer to the plaintiff in the singular, being the plaintiff Tony Paul Anzil.
3 At the time of the assault was the Manager of Focus Video Pty Ltd who was a tenant of the defendant at the Modbury Shopping Centre.  The tenant conducted a video rental business known as Focus Video.  The plaintiff’s claim is for damages for personal injuries caused by the said assault as a result of a breach of the defendant’s duty of care or by reason of the negligence of the defendant. 
4 The gist of the plaintiff’s case is that the defendant breached its duty of care owed to the employer’s of the plaintiff by turning off lights that illuminated a common car park area adjacent to the video store at a time when the defendant knew that employees of the video store would still be working.  It is alleged that breach caused the damages claimed by virtue of the fact that the plaintiff’s attackers could operate in almost complete darkness in carrying out their criminal assault.
5 The defendant argued that there was no duty of care owed by the defendant to the video store and its employees.  It also argued that if there was such a duty it was not breached and in any event if there was a breach (by prematurely turning off the lights) there was no nexus between that breach and the attack upon the plaintiff.
6 Damages have been agreed by the parties in the amount of $205,000.00 in addition to all payments made by the Health Insurance Commission on the plaintiff’s behalf.
7 The Modbury Triangle Shopping Centre contains a large number of shops and other facilities such as a restaurant and banks and other commercial businesses.  There is a large car park area which is part of the "common area".  The whole complex is bound, roughly in a triangle, by Smart Road, Main North East Road and Reservoir Road, Modbury.  The Shopping Centre was owned by the defendant at all material times and Focus Video Pty Ltd (the employers of the plaintiff) pursuant to a Memorandum of Lease dated the 1st January 1988 (Exhibit P5) was a tenant of the defendant.  The position of the video store is clearly set out on a plan of the complex (Exhibit P2).  It is adjacent to the car park with a verandah between the video store and the car park.  It is common ground that at all relevant times there were four towers for lights in the car park.  Underneath the verandah surrounding a major part of the Shopping Centre (including the video store) there were various fluorescent lights which adequately lit the area under the verandah but had little effect upon the car park.  It is also common ground that the four tower lights when on adequately lit the car park at night.  The car park was a large open area with a number of shrubs or trees.  I heard evidence and accept that from the position of the Focus store a person has a view across the car park which is adequate enough to be able to see people on Main North East Road.  That of course is when the light towers are on.  When they were turned off at night the car park was, obviously, very dark despite a small amount of spillage from the verandah light. 
8 I turn to the plaintiff’s case. The plaintiff himself gave evidence but his memory of events was badly impaired due to his injuries.  As there was no basic dispute with his evidence the defendant through its counsel fairly and properly allowed a statement which the plaintiff gave to the Police on the 1st September 1993 to be received as evidence as to the truth of its contents.  By a combination of his oral evidence in Court and that document (contained in Exhibit P5) I was told that the plaintiff was a Manager of Focus Video Pty Ltd at Modbury in July of 1993.  On the evening in question he left the store at about 10.15 p.m.  He was, as is his practice, working alone between the hours of about 8.00 p.m. and 10.00 p.m.  The store was closed at 10.00 p.m. but after clearing up, which included counting money, he left the store via the front door.  This was after locking up and turning on the alarm.  He went to his vehicle which was parked about 10 metres away from the front door in a space in the car park which was closest to the video store.  He told the Court that he then saw three youths one of whom was carrying a baseball bat.  He attempted to get into his car as quickly as possible and from then on can remember very little.  He remembers collapsing and being hit very hard by the youth with the baseball bat around the head on a number of times.  When the attack ceased the plaintiff staggered to a service station and next remembers being taken in an ambulance to hospital with a very severe head injury.  The plaintiff gave very clear evidence that when he left the store there were no lights on in the car park and it was very dark.  He also gave evidence that there were no other stores open at the time and the only other store open on that night at all was the chemist which closed at 8.00 p.m.  The plaintiff also gave evidence that at the time of the incident he had been working at the video store for about three years.  During that period of time he would regularly work a shift which started at 1.00 p.m. and ceased at 10.00 p.m.  This happened about three nights a week.  On all occasions when he worked on this late shift the car park lights had never been on when he left the store to go home.  Because of that his practice before leaving the store at that late hour was to look outside before he left the store to see if anybody was around.  If there were people in the vicinity he would take the understandable precaution of not leaving the store until they left.  On the night of the attack he did not see anybody while looking from the store out into the car park until he was outside.
9 The plaintiff also called Sharon Joy Lehmann who was employed at Focus Video, Modbury from April 1988 until some years after the incident.  She was a co-manager with the plaintiff and worked with him for about 1½ years up until the incident.  She gave evidence that during the relevant period of time the store was always open between 10.00 a.m. and 10.00 p.m.  When working a night shift the Manager who was present would invariably be alone at closing time.  The store would close for business at 10.00 p.m. but by the time the money was counted the Manager would not leave for another 15 to 20 minutes.  She gave undisputed evidence that always at 10.00 p.m. there were no other shops open in the Modbury Triangle complex.  The only commercial activity there might be at that time would be random use of an automatic teller machine which was around the corner from the video store.  Ms. Lehmann gave significant evidence about the operation of the car park lights and the effects of that operation upon the staff of the video store.  She told the Court that the video store was brightly lit inside with a clear view for someone outside the store looking in.  She said that about a year before the incident the lights would normally stay on until about 11.00 p.m.  However according to her evidence from that time up until the incident the lights were mostly off at the closing time of the video store.  This caused concern to the witness because of fears for her safety when leaving the premises at night.  She gave evidence that she spoke to the lady from the Centre Management, who would visit the tenants weekly, voicing these concerns.  She said she did this on a number of occasions.  She told the Court that at Christmas 1992 she spoke to that person and as a result of that complaint the lights remained on until about 10.15 to 10.20 p.m.  However according to Ms. Lehmann this only lasted for a couple of weeks over the holiday period.  After that and in the new year the lights reverted to either never coming on or when they did they were only on until 10.00 p.m. at the latest.  When that happened she made more complaints to the same woman on a regular basis about the operation of the lights.  She told the Court that after the incident with the plaintiff for a period of time the lights stayed on until 10.45 p.m.  However her clear evidence was that despite complaints for a number of months from the beginning of the year until the time the plaintiff was assaulted the lights were always off when the store closed at 10.00 p.m.
10 In answer to that evidence the defendant as part of its case called Mary Elizabeth Macklin.  It is convenient to deal with her evidence now.  She told the Court from October 1992 until November 1993 she was employed by Bund and Associates, Property Managers who managed the defendant’s Shopping Centre.  She said that she would visit the Centre each week and talk to the tenants.  Although she can remember generally that the Focus Video people had concerns about the car park lighting not being on during their working hours (evidence page 153) she could not remember specific conversations or complaints about the lights being on or off.  She gave evidence that she certainly cannot remember regular complaints to that effect.  She gave evidence that she had no knowledge of the lights coming on for a longer period of time after the plaintiff was attacked.  However an invoice from a person who did work on the car park lights made out to her employers dated the 5th January 1993 shows clearly that the car park lighting outside Focus Video had its time clock adjusted sometime before the 5th January 1993.  She cannot remember why that was done.  I found Ms. Macklin’s memory of events unreliable and in many ways non-existent.  In relation to the question of complaints made by members of Focus Video to her about the lights not operating I accept the evidence of Ms. Lehmann in preference to the assertions of Ms. Macklin that she could not recall such complaints.  I return to the plaintiff’s case.
11 The plaintiff also called his father-in-law and his wife.  Both gave uncontradicted evidence of the events of that night.  His wife, Christine Anzil, also gave evidence of occasions leading up to the incident when she was present when her husband left work late at night.  She said that this happened about once a month.  She said he would leave the store usually about 20 minutes after the closing time of 10.00 p.m.  There was never any occasion when the car park lights were on and she said it was very dark.  The plaintiff’s final witness was John Anthony Tomaino who was led as an expert witness generally in the area of criminology but more specifically on the topic of the prevention of crime through environmental design.  Apart from giving evidence of his observations of the lighting in the car park which is undisputed he gave expert evidence to the effect that good lighting discourages criminals from committing offences which they might well commit in the dark where there is little chance of detection or identification.  I don’t think I have to delve into statistics to come to the common sense conclusion that the victim of an attack such as this is far more vulnerable in a dark environment than a well lit one.  It is also obvious that an attack such as this where a baseball bat is wielded is far more likely to happen in a dark place then a well lit one. 
12 Other than Ms. Macklin, whose evidence I have dealt with,  the defendant called no other witnesses.  However by consent a report from an engineer named Deane Kemp who examined the lighting conditions in the car park adjacent to the video store was tendered.  Its contents are uncontradicted and uncontroversial. 
13 On the evidence as presented I make the following findings of fact:-

1. On the evening in question the plaintiff was assaulted by three assailants and beaten with a baseball bat.

1. As a result the plaintiff suffered severe head injuries.

1. On that evening when leaving the Focus Video store the car park lighting was not operating.

1. At the time the area where the plaintiff was assaulted was essentially dark.  At most there may have been a small amount of spillage of light from the verandah.

1. The plaintiff did not see his attackers until he was quite close to his car.  He certainly did not and could not see his attackers from within the video store before he left.

1. I accept the evidence of Ms. Lehmann that for approximately 12 months the car park lights either did not operate at night or were turned off before 10.00 p.m.

1. I find that complaints were made to the defendant through its Managers to keep the lights of the car park on until employees from the video store had left work at about 10.20 p.m.

1. I find that those complaints had no effect except for a period around the New Year of 1992 and for a period of time after the assault on the plaintiff.

1. I find that the plaintiff on that night and on other nights took the precaution when leaving late at night of looking out of the window towards his parked car to see if there was anybody of a suspicious nature in the vicinity.

1. That such a safety precaution was of limited use when the car park lights were off because of the darkness of the car park area.

1. I find that the Focus Video store was the last premises to close at the Shopping Centre each evening.

1. I find that the likelihood of the incident happening was enhanced by the fact that the car park was in darkness.  I find that to be so because of the obvious fact that the attackers could act under cover of darkness with little chance of being identified and also the plaintiff had an inability to see his attackers until it was too late.

14 I now turn to the law.
15 Duty of Care
16 Does the defendant owe a duty of care to the plaintiff who was an employee of one of the defendant’s tenants? It has now been clearly established that the long held common law view that the mere relationship of landlord and tenant precluded the existence of a duty of care now no longer exists. Cavalier v Pope [1906] AC 428 has been overruled by the High Court of Australia in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313. The High Court in that case approved the decision in Parker v South Australian Housing Trust (1986) 41 SASR 493. Those cases clearly established that the landlord owes a duty of care to a tenant and its customers if such duty is established on the ordinary principles of the law of negligence.
17 It is clear that the existence of a duty of care extends beyond the issue of foreseeability. For such a duty to be established there must be "proximity" as explained in The Council of the Shire of Sutherland v Heyman and Another (1985) 157 CLR 424. That decision was followed in Swan (By his Next Friend) v State of South Australia (1994) 62 SASR 532. As to what is meant by "proximity" Deane J. in Sutherland’s case at page 497 said:-
"The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff.  It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connexion or relationship between the particular act or course of conduct and the loss or injury sustained.  It may reflect an assumption by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the person or property of another or reliance by one party upon such care being taken by the other in circumstances where the other party knew or ought to have known of that reliance.  Both the identity and the relative importance of the factors which are determinative of an issue of proximity are likely to vary in different categories of case.  That does not mean that there is scope for decision by reference to idiosyncratic notions of justice or morality or that it is a proper approach to treat the requirement of proximity as a question of fact to be resolved merely by reference to the relationship between the plaintiff and the defendant in the particular circumstances.  The requirement of a relationship of proximity serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed.  Given the general circumstances of a case in a new or developing area of the law of negligence, the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction.  On the other hand, the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from notions of what is `fair and reasonable’ (cf. Per Lord Morris of Borth-y-Gest, Dorset Yacht Co. v. Home Office(89) and per Lord Keith of Kinkel, Peabody Fund v. Parkinson (90)), or from the considerations of public policy which underlie and enlighten the existence and content of the requirement."

18 Applying those principles to the facts of the present case I find that proximity has been established because of the following factors:-

1. The lease itself (part of Exhibit P5) establishes an obligation upon the defendant to provide lighting in the car park.  In those circumstances it is fanciful to suggest that if the car park lighting is not on that there would be an obligation upon any of the tenants to provide substitute lighting in those common areas.

1. The defendant, through its Managers, was continually warned about the dangers of turning off the car park lighting before the video shop closed at night.

1. At a practical level it was not difficult to provide adequate security for the employees of the video store.  The defendant merely had to allow the lights to remain on until about 10.20 p.m. on each night.

19 I reject the defendant’s argument that because the acts of third parties were involved there can be no duty of care.  It has clearly been established by a number of authorities cited to me (although in different circumstances) that there can be a duty of care to prevent damage or injury from the acts of third parties.  I also reject the argument that if there is a duty of care by the defendant to the tenants it is for the total security of the tenants and customers and this would entail all of the paraphernalia involving total security.  It is argued that such a duty would be far too onerous.  In my view the duty of care need not extend that far and I find that there is a duty of care for the security of the tenants and their customers merely concerning security as affected by the lighting of the common area.  
Standard of Care

20 Having found that there is a duty of care the next question is the standard of care and what is reasonable in the circumstances.  I find that to discharge the duty of care the defendant merely had to keep the lights of the common area on until all of the tenants had finished work in the evenings.  To do so was not difficult and in fact on the evidence I have heard was done for a period of time after the incident.  I have found that it was clearly not done for a considerable period of time leading up to and including the night of the incident.

Causation

21 I refer to the authority of March v E. & M.H. Stramare Pty Limited and Another [1991] 171 CLR 506. At page 517 Mason C.J. said:-

"The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff’s injuries are not a consequence of the defendant’s negligent conduct.  In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk:  see Chomentowski v. Red Garter Restaurant Ltd. (57).  To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content.
It has been said that the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening act:  see Chapman v. Hearse (58); M’Kew (59); Caterson v. Commissioner of Railways (60).  But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant’s negligence.  In Dorset Yacht(61), Lord Reid observed:
         `But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal.  Unfortunately, tortious or criminal action by a third party is often the `very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant."
Much the same approach was adopted by this Court in Caterson where Gibbs J.(60) (with whom Barwick C.J., Menzies and Stephen JJ agreed) pointed out that, if the plaintiff’s action in jumping from the train was, in the ordinary course of things, the very kind of thing likely to happen as a result of the defendant’s negligence and was not unreasonable, the jury was entitled to find that the plaintiff’s injuries were caused by the defendant’s negligence.  The finding that the plaintiff’s action was not reasonable was then essential to that conclusion because contributory negligence was a defence in New South Wales at the relevant time.  See also Chapman v. Hearse (62); and note the reference in Mahony (63), to the acceptance by Gibbs J. in Dillingham Constructions Pty Ltd v. Steel Mains Pty Ltd (64), of the suggestion that, if a pedestrian were run over by two drivers consecutively and both were negligent, the injuries caused by the second driver would be damage for which both drivers were liable if those injuries were also the foreseeable consequences of the first driver’s negligence.
As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things.  In such a situation, the defendant’s negligence satisfies the `but for’ test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it."

22 Applying those principles I find that the defendant’s negligence in not keeping the lights on was a clear cause of the injuries to the plaintiff despite the intervening behaviour of the three assailants.  One of the very purposes of the lights being on (as the defendant was warned) was to protect employees and customers against criminal activity.  For the reasons given in my finding of fact there is a clear connection between the safe guard of the lighting of the common area being denied to the plaintiff and the attack.
23 Consequently there will be judgment for the plaintiff Tony Paul Anzil in the sum of $205,000.00.  I will here the parties as to costs and interest.