Modbury Triangle Shopping Centre v Anzil

[2000] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A26 of 1999

B e t w e e n -

MODBURY TRIANGLE SHOPPING CENTRE PTY LTD

Applicant

and

TONY PAUL ANZIL

First Respondent

CHRISTINE ANZIL

Second Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 MARCH 2000, AT 1.27 PM

Copyright in the High Court of Australia

MR D.M. QUICK, QC:   May it please the Court, I appear with my learned friend, MR K.G. NICHOLSON, for the applicant.  (instructed by Thomson Playford)

MR B.F. BEAZLEY:   May it please the Court, I appear with my learned friend, MR P.D. PEDLER, for the respondent.  (instructed by Knox and Hargrave)

KIRBY J:   Yes, thank you, Mr Quick.

MR QUICK:   If the Court pleases, this application concerns the duty of care and scope of duty of care the occupier of premises in respect of the criminal conduct of third party entrants ‑ ‑ ‑

CALLINAN J:   A group of footpads.

MR QUICK:   Pretty nasty, I agree, your Honour.  The commencing point for our argument on the application is the general principle that there is generally no duty of care to control the conduct of third parties.  There are exceptional cases.  The general principle is stated, if I could just refer to two brief passages both appearing in the applicant’s book of documents, both emanating from the House of Lords.  One is at page 430 of the book of documents ‑ ‑ ‑

CALLINAN J:   This is your authorities book?

MR QUICK:   Yes, your Honour.  In part of the excerpts from Balkin & Davis on Tort at the top of page 430 there is a quotation from a passage appearing in the speech of Lord Diplock in Dorset Yacht Limited v The Home Office.  At the top of page 430 the passage on which I rely is quoted:

[T]he risk of sustaining damage from the tortious acts of criminals is shared by the public at large.  It has never been recognized at common law as giving rise to any cause of action against anyone but the criminal himself.

KIRBY J:   What about where the negligence merges into criminal negligence or where the negligence merges into the breach of a statutory duty with criminal sanctions?  It cannot be stated in such absolute terms, can it?

MR QUICK:   No, those would be different situations because there is then criminality on the tortious person as well, the person who is alleged to have committed the tort.  The second ‑ ‑ ‑

KIRBY J:   The suggestion here in this case is that the tortious liability arose because whilst you welcomed the respondent into the premises, you turned off the lights, you allowed bushes to be placed in the proximity of an obvious entrapment and position of danger and that this is rather a special set of factual circumstances that peculiarly attract to you an obligation of care which you breached.  That is how it is, as I understand it, decided below.

MR QUICK:   Your Honour, that is not factually quite correct.  There were bushes in the car park.  There is no evidence that the assailants in this case were actually hiding behind the bushes or anything of that nature.  It was simply a case of darkness and the darkness being a circumstance in which the criminal people acted, not necessarily even established that they acted in that way because of the darkness.  It is a different situation from the type that your Honour puts.

KIRBY J:   There is an argument about causation in this case as well.

MR QUICK:   There is an argument about causation as well.  I will come to that later, if I may, but the general principle on which we rely or the foundation for the argument is that there is in general no specific duty to guard against the criminal actions of third parties.  Now, there are exceptions to that.  The second of the general statement of principles to which I refer is found very briefly in a judgment of Mr Justice Mason, the President of the Court of Appeal Supreme Court of New South Wales in the case of W D & H D Wills v State Rail Authority of New South Wales where his Honour quotes a passage from a speech of Lord Goff in Smith v Littlewoods in 1987.  The quotation to which I refer appears at the middle of page 453 of the book of authorities alongside E, quoting Lord Goff at page 271 of (1987) AC his Lordship held:

“There is no general duty upon a householder that he should act as a watchdog, or that his house should act as a bastion, to protect his neighbour’s house.”  His Lordship explained why this was so, starting from the fundamental reason that the common law does not impose liability for what are called pure omissions.  He pointed out that liability in negligence for harm caused by the deliberate wrongdoing of others cannot and is not (on the cases) founded simply upon foreseeability of loss.  Some special relationship, such as that based on contract or assumed responsibility of control of another is required.

KIRBY J:   Well, there was a contract here.  His Lordship is not suggesting, I think, that the contract decides conclusively the entire parameters of liability because if you have got a claim in contract, you have got a claim in contract.

MR QUICK:   That is right.

KIRBY J:   You do not need to resort to tort, but there was a relationship between you and the respondent.

MR QUICK:   Not direct, because the person injured was the employee of the shop-owner.

CALLINAN J:   Mr Quick, on this point, on this aspect, is not possibly your best point that what was stated by Justice Mullighan at page 23 at about line 16 is just far too wide on any view:

The appellant chose not to operate the lights at times which compromised the safety of such persons, including the respondent –

which rather suggests to me the imposition of a positive obligation to operate the lights in such a way at all times as would ensure that the safety of nobody was ever compromised?

MR QUICK:   I agree with your Honour.  Indeed, it states widely the so‑called duty of care in this circumstance.  Whether or not that is my best point ‑ ‑ ‑

CALLINAN J:   And it states it far too widely.  That would be your submission, would it not?

MR QUICK:   It is far too wide, I agree.  The lights would have to be on at all times effectively.

CALLINAN J:   Well, perhaps not at all times but ‑ ‑ ‑

MR QUICK:   Well, your Honour, there was a – I did not mean to cut your Honour off.

CALLINAN J:   At any time when any person like the respondent might be there.

MR QUICK:   Your Honour, there was an ATM machine in the premises.

CALLINAN J:   Yes, I understand that.

MR QUICK:   They could have been – some people would have been coming and going to that perhaps at any time of the day or night.  So it really is an all time situation.

KIRBY J:   But the suggestion here is that having regard to the nature of this shop that you knew, and it was a video shop and that, therefore, it has to be open late night, that in those circumstances, factually, this imposed upon you some common law obligation to ensure that the perils which sadly are part and parcel of suburban shopping centres today and other outlets of that kind would not befall the respondent.

MR QUICK:   That is what was said, your Honour, and we would agree that it is relevant to the issue of foreseeability, but when it comes to the existence of a duty there is no authority of this Court’s status which says that a duty does exist in those circumstances.  The authorities are related to special relationship cases:  teachers and schoolchildren, parents and children, employers and employees, special category situations and possibly a new and emerging one recognised or referred to in Wills’ Case, although in that case liability was held not to exist, but there is no case that takes the issue from – that is a case of this Court’s status – that takes the issue from foreseeability and says, therefore, there is a duty.

There is, in our submission, powerful authority to the contrary in the rejection, in property damage case, of the same - of the existence of a duty, and that is in Wills’ Case to which I have already very briefly referred.  In that case – and this is where the possibility of a new and emerging source of liability arises – in that case Justice Mason, the President of the court, spoke of the possibility of a duty and the relevant passage is set out in full at page 41 of the application book beginning at line 35.  I have not given the Court the citation to Wills. It is (1998) 43 NSWLR 338.

KIRBY J:   I notice that there was a difference of opinion in the court about the cross‑appeal.  Does that touch this point or not?

MR QUICK:   No, it does not.

KIRBY J:   Yes.

CALLINAN J:   Mr Quick, I was just looking at page 24.

MR QUICK:   Of the application book, your Honour?

CALLINAN J:   Yes.  Justice Mullighan says at line 33 that:

turning on the lights was obviously a reasonable and simple measure to remove that potential danger.

MR QUICK:   Your Honour, we would say that goes to breach of duty rather than the existence of it.

CALLINAN J:   But how do we know it would remove the danger?

MR QUICK:   Your Honour, that takes into account – that absolutely encapsulates the causation point that we say exists in this case completely.  It is a very strong case for there being no causation.

CALLINAN J:   It depends on the class of footpad, does it not, how light averse they were?

MR QUICK:   Your Honour, there is simply no basis upon which one can say that light had any impact at all.  It depends upon the determination of the individual.

KIRBY J:   Yes, but, Mr Quick, you know that people leave their lights on at home when they are away in order to discourage burglars and other people coming.  I mean, it is a well‑known protection.

MR QUICK:   I agree, your Honour.

KIRBY J:   Crime works in darkness.

MR QUICK:   But there are several things one can say of that.  The first of them is that although lights might be left on, it is a question in issue as to whether or not they are effective, that is an effective way of deterring assailants.  It might even be a situation where with the lights on the assailants can see inside the house, see that there is no one at home, and they might be encouraged.  Each case will depend on its own facts.

CALLINAN J:   Well, I referred to that from the basis of – because it seems to me to be such a far‑reaching conclusion that it would have removed the potential danger.  It may have been perhaps a more acceptable statement if it had been, “It might have reduced the danger”.

MR QUICK:   Agreed, your Honour, and that is our submission.

CALLINAN J:   But it seems to me to be a very far‑reaching conclusion.

KIRBY J:   But the argument on the other side is that this is a very much factual case, that it is the combination of the video shop, the nature of video shops, you tell us of an ATM machine in a corner of a shopping centre, shrubbery, no lights, that this is, in the circumstances of Australia today, really imperilling shopkeepers and their employees such as the respondent.

MR QUICK:   No, your Honour, we would not agree with that submission.

CALLINAN J:   But you would say, would you not, that if the tenants choose to locate those sorts of businesses in that sort of a shopping centre then it is for them to negotiate a term in the lease that might cover those sorts of things?

MR QUICK:   Certainly, and, in addition, to take steps themselves to protect the safety of their employees.

KIRBY J:   That is a 19th century notion, is it not, that obligations rest on contract?  We now live in, well, almost the 21st century where there are obligations that arise from the common law and duty of care.

CALLINAN J:   Which has been very, very greatly extended in the last 70 years.

MR QUICK:   But that is what makes this case a fit case for this Court, because although there are facts and they relate to the particular facts in issue, what is involved here is the extension of a principle.  It is the extension of a principle of liability in connection with third parties which generally does not arise to a particular category, namely occupier.

CALLINAN J:   Well, I was putting that to you perhaps to help you because some people might think that things have gone far enough or nearly far enough so far as the obligations of defendants are concerned.

KIRBY J:   And some will think they have not gone far enough at all.

MR QUICK:   That is another reason – I gratefully accept – I beg your pardon, your Honour.

KIRBY J:   And some will say they have not gone half far enough.

MR QUICK:   Very fitting points to be argued on the appeal, if we might say.

KIRBY J:   Well, your point, I suppose, is that before Northern Sandblasting there was a theory following English authority that landlords were not liable at all.

MR QUICK:   That is so, your Honour, yes.

KIRBY J:   And then suddenly the law is turned on its head and they are liable and that this is an indication that the floodgates have been opened and liability is being pressed far too widely.

MR QUICK:   That is right.

KIRBY J:   And that whether that is so or not is an important issue relating to landlords’ liability, it affects landlords throughout Australia and, therefore, it is a fit matter on which this Court should pass.

MR QUICK:   Precisely.

KIRBY J:   Yes, very well.  Well, I think we might call on the respondent.  Yes, I think it is Mr Beazley’s turn.

MR QUICK:   If the Court please.

MR BEAZLEY:   Yes, thank you, if the Court pleases.  I wonder if I could just perhaps raise the point raised by Justice Callinan first, if your Honours please.  This issue about whether Justice Mullighan went too far or not.  What we were dealing with, with respect, was a car park at the shopping centre which was controlled entirely by the landlord.  When the lease commenced the landlord established lights.  Whether he wanted to, or did not have to do it under the terms of the lease, he did that.  He assumed the responsibility of putting lights in and he operated the lights until 11.30 or 11 o’clock until about a year before the incident arose.

Thereafter, when the lights were switched off before this business closed at about 10 pm, my clients and the other employees of Focus Video complained to the landlord about the fact of the lights being off, not for the reason that someone might fall over in the carpark and, of course, if I may say that. if, in fact, the lights had not been turned on and someone fell over in the darkness, there could be no dispute about the fact of the landlord being liable.

CALLINAN J:   That may or may not be right.  That is a very sweeping statement too.  Merely because somebody fell over when the lights were out would not mean that the landlord was liable.  There still has to be some negligence demonstrated.  I know that the view might be among plaintiff’s lawyers that you do not have to bother about negligence, but you still have to prove it.

MR BEAZLEY:   Can I answer this way, if your Honour pleases?  There could be no doubt there was a duty of care owed by the landlord to all visitors and, in particular, tenants and tenants’ employees and if one of those had tripped over in the dark walking through the shrubbery or otherwise, there could have been no doubt at all about liability, with respect, your Honour.

CALLINAN J:   No doubt at all because somebody tripped, is that your submission?

MR BEAZLEY:   No, your Honour.  I am talking about the fact of it being as dark as can be.  You walk outside and you can see nothing.

KIRBY J:   Can I ask you is there any authority in this Court that suggests that there are circumstances in which a landlord is liable for the criminal acts of third parties?

MR BEAZLEY:   No, not in respect of a landlord, your Honour.

KIRBY J:   Is there any authority in this Court that answers the points of the House of Lords authority that we have had our attention drawn to?

MR BEAZLEY:   No, your Honour.

KIRBY J:   Are not the answers to that question indicative of the fact that whether you ultimately succeed or not, this is an important issue that the Court should examine.

MR BEAZLEY:   The only way I can answer that, your Honour, is this, to say that the peculiar facts of this case are such that you do not need to consider, for the purposes of this case, the matters put by my learned friend Mr Quick, namely about other people using the ATMs or otherwise.  This was a case where, upon the unusual set of facts, the landlord was aware that this cash business operated until 10 o’clock of a night time.  It knew that.  The circumstances were that complaints had been made.  It was aware of those complaints.  It chose to put the lights back on when complaints were made and then, at the time of this accident, the lights were off.

Now, it is an unusual set of circumstances.  It will not answer what my friend Mr Quick was putting to you, namely as to whether if someone were to visit an ATM there needs to be lights on all night or whether, in fact, you need to have a guard outside a bank which has been robbed.  The circumstances here were so unusual, and this is such a factual case and, in my respectful submission, it is not an appropriate vehicle for this Court to consider the matter.

I wonder if I could, perhaps, just go further and say this.  It is true that this Court has not had the opportunity of considering the question which has been raised but, in our submissions at page 50 of the appeal book, we set out at note 4 at the foot of page 50 of the application book the sorts of cases where courts have found a person responsible to another for harm caused to that party by the intentional criminal conduct of a third party.  It is not a novel proposition.

It really depends on a case‑by‑case basis and added to that list, of course, can be the New South Wales case which is in the book that we prepared of The Trustees of the Roman Catholic Church v Koffman where, again, students were about 400 metres away from the school and what actually happened in that particular case was a third party, that is to say no one under the school’s control, came down and assaulted one of the students and in those circumstances there was no hesitation in finding that the school was responsible for failing to control the circumstances giving rise to the accident.

But again, my learned friend Mr Quick has referred to a series of cases including the Wills’ Case.  The Wills’ Case has nothing to do with this case.  The Wills’ Case was a case where the incident did not even happen on the property owned by the party to be sued.  The question in that case was as to whether, because he owned the property next door, it was in some way a launching pad for the activities.  In this particular case this carpark was exclusively controlled by the landlord. 

If I can take you back to your Honour Justice Callinan’s point again when speaking about the negotiation of the lease, the fact is this landlord did it.  It established lights, had the lights operating until 11 o’clock and then chose, at the end of it, to stop doing so.  In my respectful submission, that makes this a rather special case in the sense of a factual case and it is not an appropriate vehicle to try and, as it were, discuss all of the landlord’s responsibilities to tenants or others.

KIRBY J:   Yes, but if there is some general principle that the common law does not lend its aid to tenants in relation to the acts of third parties against their employees to bring home liability to the landlord, then that is thrown up by the facts of this case.

MR BEAZLEY:   I accept that.  That is definitely the ultimate conclusion.  I would accept that that would be brought out.

KIRBY J:   It is your client’s misfortune to become involved in a case that throws up a broad or potentionally broad legal principle.

MR BEAZLEY:   I accept that, your Honour.  I think the highest that I could put the matter to you is this, that in the recent cases of Perre and also Romeo, your Honour Justice Kirby in particular has set out the authority with respect to what is the scope of a duty of care and this case is all about the scope of a duty of care rather than the duty of care.  In my respectful submission, given the special circumstances here of these premises actually operating with lights and the light being switched off, in my respectful submission, this is not an appropriate case for the wider ‑ ‑ ‑

KIRBY J:   You have said that three times now.  We understand that submission.  What do you say about causation?  I mean, even assuming you get home on the lights and the shrubs and so on, is there not a serious problem about causation?

MR BEAZLEY:   No, with respect.  The way I deal with causation is this.  So far as the principles are concerned, they are satisfied well and truly in Chappel v Hart, Naxakis and March v Stramare.  No further elucidation in this Court is required on the question of causation.  It is one of fact.  Here there have been concurrent findings of fact made by the three judges down below and the Court of Appeal and also the trial judge and if I may say with respect to Justice Callinan it was, in my respectful submission, inevitable the finding would be made and the reason I say that is this.

CALLINAN J:   Which finding?

MR BEAZLEY:   This is the finding that if the lights were on there would, at least, been less likelihood of there being a ‑ ‑ ‑

CALLINAN J:   No, no.  The passage I quoted Justice Mullighan said it would have removed, not reduced, but removed the risk.

MR BEAZLEY:   Thank you, your Honour.  I do not need to go that far, if the Court pleases, but can I just paint this picture if I may?  What you have, in this particular case, is three men with a baseball bat.  In the circumstances of this case they could have sat out in a deckchair in the carpark looking at the Focus Video store all lit up like a Christmas tree.  Lights go off.  They can wait there.  Man comes out and he is assaulted.

If the lights are there, there is no way they would have carried a baseball bat around the carpark.  It would have put the victim in this particular case in the case of being able to look out the window, see what is there and have concluded either to go outside to his car, make it to his car or ring the police if he sees people in the carpark.  That opportunity was taken away completely because of what actually occurred here, it being a very

dark area, trees around, shrubs around and in my respectful submission this is a case where the Court ought not intervene on the question of causation.

KIRBY J:   Yes, thank you, Mr Beazley.  Is there anything else you wish to say?

MR BEAZLEY:   No, I do not, your Honour.  Thank you.

KIRBY J:   Anything in reply, Mr Quick?

MR QUICK:   There are a couple of matters, your Honour.  First of all, my learned friend submitted that the park was entirely within the control of the applicant.  The situation is not entirely within the control of the applicant.  The court found that the employer or the injured person himself could have taken steps for their own safety.  That is at pages 23 point 9 and 24 point 1 of the application book.

There are a number of things they could have done.  They could have had additional people there.  They could have erected a light themselves on the outside of the verandah.  There were a number of things of that nature so it is not a case for the control being exclusive.

The second point that I wish to reply on is that my learned friend submits that the facts here are unusual.  They are peculiar facts.  In our submission the essential facts are absolutely everyday facts.  There was a shopping centre.  The landlord did know what time the tenants were operating and knew what time they were closing.

CALLINAN J:   There would be literally hundreds and hundreds of shopping centres of this kind in Australia.

MR QUICK:   I agree, your Honour, and that is our submission.

CALLINAN J:   With some amount of night trading of some kind going on.

MR QUICK:   It is all over the place. 

KIRBY J:   Unfortunately, assaults of this kind are all over the place in Australia too and I just think we have to be a little careful picking up passages of earlier times in England when things were much more law abiding to Australia today.  I am not saying what the answer is but I just think you have to develop the law of negligence in the setting of the social environment in which it operates.

MR QUICK:   Your Honour, in response I would say that is a fitting matter to be discussed on the hearing of the appeal but, in so far as my learned friend says there should not be an appeal because it is unusual, your Honour has just added an additional point of usuality – I have just invented a word – an additional point of common occurrence, that is, unfortunately, these events do occur.

The third point that I wish to respond on is my learned friend referred to a series of cases.  They are the ones referred to in the third footnote of the appeal book.  All of those cases, save for one, I think, are cases in which there is a special relationship – employer/employee.

KIRBY J:   What was Dorset Yacht?  That was the Borstal ‑ ‑ ‑

MR QUICK:   The Borstal Boys.

CALLINAN J:   The Borstal Boys escaped.

MR QUICK:   They escaped from an establishment close by the water and stole a boat and damaged it.

KIRBY J:   There is no relationship between the Borstal Boys and the yacht company, was there.  There was with the Home Office but to the Home Office they were strangers who were engaged in a criminal enterprise and yet, as I remember it, the Home Office was held liable.

MR QUICK:   Liability arose there because of the obligation of control over the Boys.  There was an obligation imposed on them.  They knew of their likelihood to escape.  They had done it before.  They were near boats.

KIRBY J:   I suppose the analogy that would be urged on us here is that the obligation arose here on you not to control them but to reduce significantly the risks that they would hit employees with a baseball after 10 pm.

MR QUICK:   That is the issue to be debated on the appeal, if the Court pleases.

MR QUICK:   You keep saying that, Mr Quick.  You seem very confident.

CALLINAN J:   Because you look at the Borstal Boys Case it is a little like Rylands v Fletcher which we used to have in this country too, is it not?  Escape?

MR QUICK:   Dangerous escape, yes.

CALLINAN J:   Stored up, locked up and then allowed to escape.

MR QUICK:   There is that similarity, I agree, but the foundation of liability in Dorset Yacht is the duty to control persons known to be likely to escape and known to cause damage and in the proximity and in the circumstances knowing of the yachts being there.

My learned friend sought to rely upon Perre and Romeo’s Case.  They are both very different.  Neither of those concerned the obligations of a landlord to control the criminal acts of third parties.  On the causation issue, my learned friend gave an example in relation to light.  Light was not the essential thing here.  It does not even satisfy the “but for” test.  It was not an essential pre‑condition at all.  The crucial factor might just as equally have been the absence of other people.

CALLINAN J:   I suspect having brought their baseball bat to commit an assault, they were not going to take their bat home without something, whether the lights were on or not or when they went on.

MR QUICK:   It is a very good point, your Honour, and one we would seek to make, that these people were determined.

KIRBY J:   Well, I just repeat that people do leave their lights on and they do that because that does tend to discourage or deter criminality.

MR QUICK:   But people still break into houses with their lights on as well.

KIRBY J:   That is true.

MR QUICK:   May it please the Court, those are our submissions in reply.

KIRBY J:   Yes.  If the Court were to grant special leave we would expect both sides with their thoroughness, as is indicated in footnote 4, to have a look at the Canadian and New Zealand and other countries, not just confine it to England and Australia, and also any academic writing on the issue.

MR QUICK:   We would certainly do that, your Honour.

KIRBY J:   Justice Callinan reminds me that if there are any photographs in the record concerning the layout of the carpark, we would expect those to be reproduced for the benefit of the Court.

MR QUICK:   If the Court pleases, your Honour.

KIRBY J:   Yes, plans and photographs.

MR QUICK:   If your Honour pleases.

KIRBY J:   There will be a grant of special leave in this matter.

AT 1.57 PM THE MATTER WAS CONCLUDED