Modbury Triangle Shopping Centre Pty Ltd v Anzil

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, KIRBY, HAYNE AND CALLINAN JJ

MODBURY TRIANGLE SHOPPING
CENTRE PTY LTD  APPELLANT

AND

TONY PAUL ANZIL & ANOR  RESPONDENTS

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
23 November 2000
A16/2000

ORDER

1.   Appeal allowed with costs.

2.   Orders of the Full Court of the Supreme Court of South Australia made on 12 August 1999 set aside. In lieu thereof, order that the appeal to that Court be allowed with costs, the orders of Judge David made on 29 January 1999 are set aside and the action is dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation:

A J Besanko QC with K G Nicholson for the appellant (instructed by Thomson Playford)

S W Tilmouth QC with B F Beazley and P D Pedler for the respondents (instructed by Knox and Hargrave)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ.   The first respondent sued the appellant, in tort, for damages for personal injury.  The injury was inflicted by three unknown men, one armed with a baseball bat, who criminally assaulted the first respondent in a car park.  There is no suggestion that the appellant was vicariously responsible for the conduct of the attackers.  The basis of liability is said to be that the appellant was the occupier of the car park; that, at the time of the attack, the car park lights were off; that, in the circumstances of the case, which will be set out in more detail below, the failure to leave the lights on was negligent; that the risk of harm of the kind suffered was foreseeable; and that the negligence was a cause of the harm.

  2. The primary issue argued in the appeal concerns the principle upon which an occupier of land may be liable, in an action for negligence, to a person who, whilst on the land, is injured as a result of the deliberate wrongdoing of a third party.  There was also an issue as to causation.

    The facts

  3. The appellant was the owner of a shopping centre in a suburb of Adelaide, known as the Modbury Triangle Shopping Centre ("the Centre").  The first respondent was employed by Focus Video Pty Ltd ("Focus Video"), which leased premises in the Centre, used as a video shop.  The Centre had a large outdoor area for car parking.  The video shop faced the car park.  Nearby, there were all-hours automatic teller machines. At night, the car park was dark (except for slight illumination from fluorescent lighting on the roof of the verandah facing the car park), unless the car park lights were turned on.  There were four lighting towers.  They were controlled by timing devices. 

  4. The video shop closed at 10 pm.  The attack occurred at around 10.30 pm on Sunday, 18 July 1993.  The first respondent was the only person who remained in the video shop.…

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Details
Case
[2000] HCA 61
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Full Court of the Supreme Court of South Australia concerning a negligence claim. The appellant, Modbury Triangle Shopping Centre Pty Ltd, owned a shopping centre where the first respondent, an employee of a tenant, was lawfully on the premises. The first respondent was attacked and injured in the centre's car park by third parties after leaving work late at night. The primary issue was whether the shopping centre owner owed a duty of care to protect lawful visitors from the criminal acts of third parties.

The legal issues before the High Court were whether the occupier of the shopping centre owed a duty of care to the respondent to take reasonable steps to protect him from the foreseeable criminal acts of third parties, and if so, whether that duty had been breached and caused the respondent's injuries. The Court was required to determine if the existing principles of negligence law were sufficient to address liability for harm caused by the deliberate wrongdoing of others, or if a special rule applied to such circumstances.

The High Court reasoned that claims in negligence for damage resulting from the criminal acts of a third party are not excluded as a distinct category. Instead, such claims are evaluated by applying ordinary principles of negligence. The Court found that the relationship between a landlord managing a commercial shopping centre and the employees of its tenants, who are lawfully on common property, establishes a duty of care. This duty arises from the reasonable foreseeability of harm, geographical and circumstantial proximity, and the potential for the landlord's actions or omissions to directly affect individuals like the respondent. The Court noted that the occupier is liable for its own breach of duty in failing to take reasonable steps to safeguard those to whom a duty is owed from foreseeable consequences of third-party criminal acts, rather than being vicariously liable for the criminal acts themselves.

The High Court allowed the appeal, setting aside the orders of the Full Court of the Supreme Court of South Australia. Consequently, the appeal to that Court was allowed, the orders of the trial judge were set aside, and the action brought by the respondent was dismissed.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Orders of the Full Court of the Supreme Court of South Australia made on 12 August 1999 set aside. In lieu thereof, order that the appeal to that Court be allowed with costs, the orders of Judge David made on 29 January 1999 are set aside and the action is dismissed with costs.

Background

Background to the litigation

The primary issue argued in the appeal concerns the principle upon which an occupier of land may be liable, in an action for negligence, to a person who, whilst on the land, is injured as a result of the deliberate wrongdoing of a third party. There was also an issue as to causation.The facts The appellant was the owner of a shopping centre in a suburb of Adelaide, known as the Modbury Triangle Shopping Centre ("the Centre"). The first respondent was employed by Focus Video Pty Ltd ("Focus Video"), which leased premises in the Centre, used as a video shop. The Centre had a large outdoor area for car parking. The video shop faced the car park. Nearby, there were all-hours automatic teller machines. At night, the car park was dark (except for slight illumination from fluorescent lighting on the roof of the verandah facing the car park), unless the car park lights were turned on. There were four lighting towers. They were controlled by timing devices. The video shop closed at 10 pm. The attack occurred at around 10.30 pm on Sunday, 18 July 1993. The first respondent was the only person who remained in the video shop. The only other shop that had been open that night was a chemist shop, which had closed at 8 pm. The first respondent, who was the manager, closed the video shop and walked a distance of about 10 metres towards his car, which was parked in the car park. The car park lights were not on at the time. The first respondent was attacked by the three assailants, and was badly injured. Under the terms of the lease between the appellant and Focus Video, certain services, including lighting of the common areas, were provided at the discretion of the appellant. The car park was one of the common areas. The lease provided that the tenant would be liable to pay a proportion of the cost of certain operating expenses, the other proportions being paid by the other tenants. Those operating expenses included all charges for electricity and lighting in the common areas. Before July 1992 the practice had been to leave the car park lights on until 11 pm. This practice had ceased in July 1992, but in December 1992 the lights were left on until around 10.15 pm for a few weeks over the holiday period, following a request by the co-manager of the video shop. In early 1993, the co‑manager, Ms Lehmann, made complaints to the appellant's representatives about the time at which the lights went off. From the beginning of 1993 until the attack on the first respondent in July 1993, the lights were not left on after 10 pm. There was uncertainty in the evidence as to exactly what time the car park lights were turned off on the night of the attack, and during the period immediately before that night. In opening at the trial, counsel for the respondents said that the evidence would show that, at the relevant time, the lights switched off automatically at about 10 pm. However, the evidence was not so precise, and much of it was expressed in ambiguous terms. The trial judge was not able to make a finding as to exactly when the lights went off. He said: "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 pm." The problem is that Ms Lehmann's attention was directed to the fact that the lights were not on after 10 pm. Since the video shop closed at 10 pm, and the person in charge would take some time to be ready to leave, that person would leave the shop at a time when the car park lights were off. Ms Lehmann did not give clear evidence as to whether the lights went off at 10 pm, or at some earlier time, or at different times on different nights. Nobody appears to have mentioned, at the trial, that if the lights were timed to go off at 10 pm, the complaints from the video shop might have been resolved by closing the shop a little earlier. It is understandable that the lights may have been timed to switch off at the closing time of the last shop in the Centre to remain open. That could explain why they went off at 10 pm. It is not easy to understand why they might switch off earlier, or why they might switch off at different times on different nights. The trial judge's finding on the matter is ambiguous. When, in the course of argument in this Court, the ambiguity was pointed out, senior counsel for the respondents first said that his understanding of the evidence was that on the night in question the lights went off at 10 pm. Subsequently, he said there was no precise evidence about that. The trial seems to have been conducted on the basis that all that mattered was that the lights were not on after 10 pm.The proceedings

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ (dissent) GAUDRON J KIRBY J CALLINAN J
Additionally, common knowledge, which would be attributed to the appellant, would indicate the specific dangers to employees of a cash business in a store in a suburban shopping centre operating late at night. Thieves tend to target cash businesses of such a kind, especially operating in hours of darkness. The risk that thieves will do so, particularly where they hope that their victim may be carrying cash, is more than reasonably foreseeable. If there is a routine that can be readily observed from the safety of darkness, an attack of the kind that happened to the respondent will not only be possible in contemporary Australia – it may, depending on the circumstances, be probable. And in this case, what happened was not only predictable – it was predicted.The relevant questions and issues for decision The process before this Court is an appeal, not a trial. It is therefore necessary for the appellant to show that the judges below, and all of them, were in error in the conclusions which they reached[38]. Such error might involve an error of law in the approach which the judges took to the issues for decision. Or it might involve an error of fact-finding. Ordinarily, this Court does not disturb concurrent findings of fact at trial and on appeal, at least without strong reasons to do so[39].[38]Eastman v The Queen (2000) 74 ALJR 915 at 959 [247]; 172 ALR 39 at 98; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1364-1365 [68]-[72]; 174 ALR 585 at 605-606.[39]Louth v Diprose (1992) 175 CLR 621 at 634. In Romeo v Conservation Commission of the Northern Territory[40], I pointed out that, in disputed claims framed in negligence, "[u]nless particular issues are conceded, it is highly desirable that trial courts should approach such disputes by considering, in turn, the standard questions". Of the six issues which I set out, four are presently relevant[41]:"1.Is a duty of care established? (The duty of care issue.)2.If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.)3.Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.)4.If so, was the breach the cause of the plaintiff's damage? (The causation issue.)"[40](1998) 192 CLR 431 at 475 [115].[41]Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 475 [115]. In the way in which the present case was litigated, the first issue was not seriously in contest. According to the respondent, that issue was actually conceded by the appellant before the Full Court. In any case, the relationship of a landlord to the employees of a tenant, coming onto common property pursuant to, and within the scope of, a tenancy, involves an established duty relationship[42]. Certainly, in the case of a landlord managing the operations and common property of a commercial shopping centre, all of the elements are present to create the relationship which Lord Atkin described in Donoghue v Stevenson as being that of a "neighbour"[43]. There is reasonable foreseeability of injury. There is also geographical proximity[44]. There is, moreover, circumstantial proximity. In the present case, there is also causal proximity, in the sense that the actions or omissions of the appellant were of the kind that would directly affect a person such as the tenant's employee.[42]cf Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 120; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Bryan v Maloney (1995) 182 CLR 609 at 617-618; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 340, 342-343, 347, 358-359.[43][1932] AC 562 at 580.[44]Jaensch v Coffey (1984) 155 CLR 549 at 584-585; cf Katter, Duty of Care in Australia (1999) at 44-45.

Ratio Decidendi

Legal Principle Established

Established by: GAUDRON J, KIRBY J, CALLINAN J

This review of legal authority therefore demonstrates that neither in Australia nor in any other common law country examined have claims in negligence for damage consequent upon the criminal acts of a third party been excluded as a universal category or class. Such claims have been evaluated by the application to the facts of each case of the ordinary principles of negligence law. For this Court now to hold that no duty of care of a relevant scope requiring reasonable preventive measures can arise in respect of the criminal acts of a third party would amount to a departure from basic legal doctrine. Moreover, it would isolate the approach of the common law in Australia from that of other like countries.Policy considerations sustain liability Is it "fair, just and reasonable" that the law should impose a duty on the appellant, in a case such as the present, to take reasonable care to avoid foreseeable risks of injury from the criminal acts of third parties to persons such as the respondent? The appellant submitted that it was not. Several arguments can be deployed to support the appellant's proposition. However, in my view, each of these arguments, when analysed, is shown to be wanting. The liability is personal not vicarious: First, it might be suggested that it is offensive to common sense to burden one person with the consequences of the wilful criminal conduct of another. On this view, society should extract its penalties, both criminal and tortious, from the person actually guilty of the wrongdoing and not impose them on another person by classifying the resulting damage as an outcome of the latter's negligence. But this is not the approach of the common law in any country. The putative tortfeasor is not, in truth, held liable in law for the criminal acts of a third party. There is no vicarious liability for such acts. The tortfeasor is liable, instead, for its own breach of duty in failing, in the circumstances, to take its own steps to safeguard, from the foreseeable consequences of such acts, those to whom a duty is owed by it. Legal ingenuity is irrelevant: With respect, it is completely irrelevant that, but for a statute in South Australia[85], the respondent might have sued his employer and not the appellant[86]. That fact merely affords a possible explanation for the bringing of the proceedings against the appellant alone. It does not help to resolve the question of whether, in law, those proceedings are entitled to succeed. Legal ingenuity is not the sole preserve of corporations or those who successfully rely on such ingenuity to advance their legal interests[87]. Sometimes ordinary citizens and injured workers, like the respondent, are the beneficiaries of accurate legal advice. They have no less claim on the law's bounty. If in law they are entitled to recover, the courts must so hold.[85]Workers Rehabilitation and Compensation Act 1986 (SA), s 54(1).[86]Reasons of Callinan J at [120].[87]eg Byrnes v The Queen (1999) 73 ALJR 1292 at 1307-1308 [78]-[81]; 164 ALR 520 at 542-543; Bond v The Queen (2000) 74 ALJR 597; 169 ALR 607.