Morcom v Tander Pty Ltd (Ruling)
[2013] VCC 177
•8 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-11-01301
| JAMES MORCOM | Plaintiff |
| v | |
| TANDER PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 25, 26, 27, 28 February, 1 and 4 March 2013 | |
DATE OF RULING: | 8 March 2013 | |
CASE MAY BE CITED AS: | Morcom v Tander Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 177 | |
RULING
---
Subject: DAMAGES – arising from injury caused by assault
Catchwords: Duty of care – general duty of care – occupier’s duty of care
Legislation Cited: Wrongs Act 1958
Cases Cited:Bainbridge v James [2013] VSCA 12; Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 24; TAB Limited v Atlis [2004] NSWCA 322; Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor [2000] HCA 61; Karatjas v Deakin University [2012] VSCA 53; Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8.
Ruling: The defendant did not owe the plaintiff a duty of care.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Britbart | Wisewould Mahony |
| For the Defendant | Mr J P Gorton SC with Ms K E Foley | Norton Rose Australia |
HIS HONOUR:
1 The evidence in this case is now closed. The issue for me to decide at this stage of the trial is whether or not the defendant owed the plaintiff a duty of care in the circumstances of this case. I am required to take into account a view of the evidence which is most favourable to the plaintiff, James Morcom, in determining whether the defendant owed him a duty of care in this case.
2 The plaintiff’s Counsel, Ms M Britbart, submitted there was a duty of care on the defendant in this case. Mr Gorton, Senior Counsel for the defendant, submitted that there was no duty of care owed by the defendant to the plaintiff in the circumstances of this case. Each party submitted written submissions and addressed the Court on the issue of the duty of care.
The facts
3 The plaintiff, Mr Morcom, attended the drive-through section of the McDonalds Restaurant at 318 Whitehorse Road, Balwyn on 30 March 2008. The McDonalds Restaurant was owned and occupied by the defendant, Tander Pty Ltd. The plaintiff was a front-seat passenger in a vehicle driven by his now fiancée, Britney Danaher. At the time of the plaintiff’s attendance, there were pedestrian customers in the drive-through driveway of the McDonalds Restaurant. The evidence in the case was that the restaurant itself was closed. The drive-through was serving both pedestrians and people attending in cars.
4 The plaintiff attended the defendant’s premises at approximately 3.30am. He had returned from a city nightclub and was seeking food from the defendant’s premises. The plaintiff was very intoxicated.
5 At the time of the plaintiff’s arrival, Mr Chiffley was at the food dispensing window of the driveway. The assailants approached the same window.
6 The assailants then went behind the car in which the plaintiff was an occupant. The assailants had been directed to the ordering area of the drive-through by a member of the defendant’s staff, Mr Marwaha.
7 The assailants were speaking loudly and complaining about the cost of the taxi. They placed some paper or receipts on the rear of the plaintiff’s car. They were leaning on the car.
8 The plaintiff remonstrated with the assailants and told them to get off the car. The plaintiff got out of his car and approached the assailants in a verbally and physically aggressive manner. This is described by Mr Marwaha.
9 The plaintiff was pushing and shoving. The assailants pushed and shoved the plaintiff. Ms Danaher got out of the car and tried to get the plaintiff back into her car. She thought the plaintiff was going to get in the car and moved it forward in the driveway.
10 The assailants appeared to leave the area of the driveway behind Ms Danaher’s car and move to an area out of sight of CCTV.[1] The plaintiff shut the passenger door. The plaintiff then moved in the direction the assailants. The plaintiff went out of CCTV camera range.
[1]Exhibit E
11 Ms Danaher then saw an assailant punching and kicking the plaintiff in the garden section of the defendant’s premises. She marked the area of the assault with an “X” on Exhibit 1. This is an area on the premises away from the drive-through section.
12 Ms Danaher said the assailant then “threw” the plaintiff onto Whitehorse Road and fell on the plaintiff. The plaintiff was then knocked out and did not move.
13 An ambulance and police were called. The assailants were not apprehended or identified.
14 The plaintiff received fractures to the right side of his face and is now blind in his right eye. He also received a fractured skull. The injuries to the plaintiff are very significant.
The Statutory duty of care
15 The plaintiff contends that s14B(3) of the Wrongs Act 1958 sets out the duty of care owed by the defendant, Tander Pty Ltd. It states:
“An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”
16 Ms Britbart submitted that the phrase “the state of the premises” is not confined to the physical structure of the premises. She submitted the duty owed by an occupier, in this case the defendant, extended to the activities conducted on the premises by the defendant. In this case, the defendant conducted a McDonalds’ franchise and sold food to pedestrians and car occupants at the drive-through section of the premises.
17 I accept that the statutory duty of care is not confined to the “physical state of the premises” and does include the activities of the defendant conducted on the premises.
18 The duty is expressed in terms:
“…to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged … .”
19 This necessarily means the duty is to be considered in all the circumstances of the case. The care to be taken is reasonable care.
20 The question of whether the defendant owed a duty of care to the plaintiff is a question of law. In order to determine if a duty of care to the plaintiff exists requires the determination of the scope, extent or content of the duty of care.
21 Ms Britbart submitted that the defendant owed a duty of care to the plaintiff. The submission was based on the foreseeability of a conflict arising because cars and pedestrians were allowed to come into the proximity of one another in the drive-through section of the premises whilst they were buying food there.
22 It was submitted on behalf of the plaintiff that the factors giving rise to a duty of care were:
(i) the time of night gave rise to potential for alcohol-affected people on their way home from pubs and nightclubs to be present in the drive-through section of the premises;
(ii) the defendant had the drive-through section of the premises open to capture the trade of people going home at that time of the day and servicing their need for food;
(iii) because of the mix of the time of day (≈4.00am) and alcohol-affected people, there was a potential for conflict between them;
(iv) unpredictable situations can arise when pedestrians and people in cars are allowed to be in proximity of one another in the drive-through section of the premises.
23 Ms Britbart submitted that the defendant failed to address the safety of customers at the overnight drive-through section of the premises. It was submitted that the omissions were:
(a) The defendant did not comply with its own guideline or policy not to serve pedestrians in the drive-through section;
(b) The defendant failed to prevent arguments between customers;
(c) The defendant failed to keep customers in cars apart from pedestrian customers.
24 The above three matters really go to a breach of a duty of care if such a duty existed. The alleged breaches by omission inform the scope, content and extent of a duty of care.
25 The first of the alleged omissions is a failure by the defendant to comply with its own guidelines or “rules”, as Ms Britbart referred to them. Exhibits D, E, F and G all set out guidelines that “walk-up” customers are not to be served at the drive-through window area of the premises. The security measures referred to in the guidelines in each of these exhibits are predominantly to do with the safety and security of staff. A fair reading of these guidelines leads to a conclusion that the parts of the guidelines that are directed to the safety of customers is the contemplation of the safety of pedestrians in the vicinity of cars going through the drive-through area. In short, pedestrians were not to be run over by cars. The guidelines are not directed to keeping pedestrians and cars (and their occupants) apart for the purpose of avoiding potential violent conflict or aggressive behaviour. In that regard, there is no omission on the part of the defendant to follow its own guidelines.
26 The plaintiff was not injured or harmed as a result of a collision between a car and a pedestrian. He was injured as a result of an assault which ultimately took place not on the drive-through section of the premises but another part of the premises after he had alighted from his car and gone around the side of the building in pursuit of people who became his assailants.
27 In oral submissions, Ms Britbart, for the plaintiff, developed the argument that the defendant had a duty to minimise the potential for interaction between potential customers who are known to be intoxicated. This was an extension of the proposition that it was an omission on the part of the defendant to do what was reasonable to prevent arguments arising between known customers at that time of the night. It was submitted that intoxicated people in close proximity to each other results in the unpredictability of such a situation, in this case, an assault of the plaintiff.
28 This alleged omission submission against the defendant is directed to a breach of duty of care. This allegation however, goes to inform what the scope, extent and content of the duty of care is in the first place. Whilst the defendant operates a food outlet in the early hours of the morning in what has been described as a “nice” and “quiet” area, the imposition a duty of care on the defendant to prevent its customers coming in close proximity to one another is not practical, sensible or in accordance with the law of the State.
29 In Bainbridge v James,[2] Harper JA said, at paragraph 22:
“It would also impose an indeterminate duty on an indeterminate class. One thinks of corridors in shopping centres used during ordinary business hours by the public to access public toilets; indeed, any slightly out of the ordinary activity otherwise taking place in perfectly ordinary circumstances which might by some chance attract wayward criminal behaviour.”
[2][2013] VSCA 12
30 I agree with these observations, and they apply to this case.
31 The third submission in respect of the statutory duty of care imposed on the defendant was that the pedestrian assailants should not have been allowed in the proximity of the car in which the plaintiff was a passenger, such that they could “lean” on the car. It was submitted the “leaning on” the car caused discomfort to the occupants of the car, including the plaintiff. The evidence in relation to the ultimate assailants leaning on the car is not clear-cut. In assessing the issue of whether a duty of care exists in this case, I accept the plaintiff’s case at its highest, i.e., the assailants were touching or leaning on the back of the car in which the plaintiff was a passenger.
32 I note for completeness at this point that Mr Marwaha said, in his evidence:
“Maybe they were just leaning on it, just touching it, but not smashing it or standing on it or anything.[3]
… Not being a danger to the car or the person inside the car or – yes.”[4]
[3]Transcript (“T”) 259, L12-13
[4]T259, L14-15
33 Mr Marwaha was in the best position of all the witnesses in this case to observe the actions of the men behind the car at this particular time.
34 The plaintiff, in a severely intoxicated state, alighted from the car and screamed at and pushed and shoved the men behind the car. He ordered them to get off the car. The full exchange between the plaintiff and the ultimate assailants does not need to be recited here. It is sufficient to say the plaintiff left the passenger-side of the car. He confronted the men behind the car in a verbally and physically aggressive manner. Ms Danaher unsuccessfully intervened and tried to get the plaintiff back in the car.
35 Whilst the sequence of events is hazily captured on CCTV,[5] it is clear that the two ultimate assailants left the area behind Ms Danaher’s car in the driveway. The men headed in the direction of Whitehorse Road at the front of the McDonalds Restaurant. The plaintiff then closed the passenger door of Ms Danaher’s car and followed the men around the corner of the building and out of sight of the CCTV cameras.
[5]Exhibit C
36 The assault was witnessed by Ms Danaher occurring at the front of the McDonalds Restaurant which she marked “X” on Exhibit 1. The assault finished on the roadway of Whitehorse Road. The plaintiff received fractures to the right side of his face and a fracture to his skull. The most severe and long-term injury is that he has lost the sight of his right eye.
37 The harm that has caused the plaintiff’s injury is a direct result of the criminal act of third parties in this case, the men behind Ms Danaher’s car.
38 In the circumstances of this case, there is no duty of care owed to the plaintiff by the defendant to prevent injury or damage to the plaintiff by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises.
39 The damage and injury to the plaintiff occurred as a result of the criminal act of one or both of the men referred to as “assailants” after the plaintiff had unreasonably initiated a verbal and physical exchange whilst in a heavily intoxicated state. In those circumstances, the defendant did not owe him a duty of care.
The Common-Law duty of care
40 Ms Britbart, on behalf of the plaintiff, submitted that the defendant owed the plaintiff a general duty of care to take reasonable care to protect him from the risk of foreseeable injury.
41 The plaintiff relied on the principles set down in Canterbury Municipal Council v Taylor & Ors.[6] In the Canterbury Case, the Council was occupier and manager of a venue. At that venue, the Council authorised the premises to be used as a velodrome and touch-football venue at the same time. There was a collision between a cyclist and a touch-footballer when he crossed the path of oncoming cyclists.
[6][2002] NSWCA 24
42 The plaintiff submitted that the parallel in the instant case was that the defendant:
(i) agreed to serve customers at the drive-through overnight;
(ii) encouraged both pedestrians and motorists to use the drive-through overnight to obtain food;
(iii) remained open to “capture” the custom of people returning home from pubs and clubs late at night or early morning seeking something to eat.
43 The plaintiff submitted this gave rise to a general duty of care on the part of the defendant to take reasonable care to avoid injury to the customers of whom the plaintiff was one.
44 This submission fails to take into account that the plaintiff was injured as a result of a criminal act. The criminal act occurred after the plaintiff reacted unreasonably to the touching of the boot of his fiancée’s car in the driveway of the premises. The plaintiff initiated the verbal and physical aggression with the assailants. He pursued them to the front of the defendant’s premises away from the drive-through area to where the ultimate assault causing injury to him occurred.
45 The plaintiff also relied upon the authority of TAB Limited v Atlis.[7] In that case, the plaintiff was injured when he intervened when intoxicated patrons at the TAB would not quieten down. There was an altercation and the plaintiff was injured. The assailants had been intoxicated and warned by the management a number of times before the altercation causing injury to the plaintiff occurred. The assaulting customers were known to and had been warned by management of the TAB on a number of occasions.
[7][2004] NSWCA 322
46 In this case, the assailants are and were unknown to the plaintiff and the defendant. There was no forewarning that any unruly or violent behaviour would be perpetrated by them. Indeed, the evidence in this case is that the subject incident of violence is the only violent episode at the premises.[8] There had been previous arguments and nuisance complaints at this McDonalds’ venue but no violence.
[8]See the evidence of Mr Curtis at T206
47 The principles of Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor[9] apply to this case.
[9][2000] HCA 61
48 It is fair to say that most events are foreseeable with the application of a bit of imagination; however, foreseeability of an event is not sufficient on its own to impose a duty of care on a party. The imposition of a duty of care requires scope, extent and content of the duty of care to be defined. In Modbury’s Case, Gleeson CJ said, at paragraph 35:
“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. … .”
and at paragraph 29:
“… The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.”
49 The foreseeability of the risk of harm to the plaintiff is not enough in this case to found a duty of care. The issue in this case is whether the defendant owed a duty of care of a kind relevant to the harm which befell the plaintiff. This question goes to the nature, scope and extent or measure of the duty of care.
50 The plaintiff submitted that Modbury’s Case had no application to his case because:
(i) the assailants were at McDonalds to buy food;
(ii) the assailants were “enticed” to be in the drive-through of McDonalds;
(iii) the assailants were instructed where to order the food (control).
51 I reject the submission that Modbury’s Case has no application to the facts and determination of a duty of care in this case.
52 The assailants are strangers to the defendant and the plaintiff. They remain so. No-one knows the identity of either of them or their motives for their behaviour on 30 March 2008. There is no evidence to suggest the assailants had been to that store before or, more importantly, if they had been there before, exhibited tendencies to violence and troublemaking.
53 The plaintiff does not fit within a special relationship with the defendant so as to be an exception to the principles set out in Modbury. The plaintiff is not in a class like Ms Karatjas. In the case of Karatjas v Deakin University,[10] Nettle J sets out where the plaintiff, Ms Karatjas, was in a special relationship with the occupier, Deakin University. The relationship was special because:
[10][2012] VSCA 53
(i) she was required to comply with an unsafe system of work – to go to the car park by a set path;
(ii) she was required to come to the cafeteria – employment-related relationship;
(iii) she had complained about a dark path, and a removal of barriers would have eased the risk;
(iv) Occupational Health and Safety obligation.
In this case there is no special relationship between the defendant and the plaintiff.
54 In the recent case of Bainbridge v James,[11] Harper JA approved of the principle set out in Modbury by Gleeson CJ and set out the duty of care.
[11](supra) at paragraph [25]
55 In Lesandu Blacktown Pty Ltd v Gonzalez,[12] Basten JA stated:
“Thirdly, the language of ‘special relationship’ does not give rise to an abstract exercise in characterisation. Rather, as recognised by all members of the majority in Modbury Triangle, it is a reflection of the legal principle expressed by Gleeson CJ in the passage set out above: at [42]–[43] (Gaudron J); [98] and [117] (Hayne J), and [147] (Callinan J, although focusing on the relationship between the plaintiff and the defendant). In the present case, no criteria were identified which would have warranted the conclusion that there was a special relationship between Mr Gonzalez and the applicant. All that the trial judge found in this respect was a conclusory statement that ‘there was a special relationship between the [applicant] and the members of the public, including customers inside and outside the store’: Judgment, p 24. It would seem to follow that the occupiers of all retail premises in the country, even if they themselves did not conduct the retail businesses but had tenants or franchisees, had a duty to take reasonable steps to protect anyone in or near their stores from criminal attacks or, possibly, other forms of misbehaviour. Such a conclusion would contradict the underlying assumption of the common law referred to in Modbury Triangle.”
[12][2013] NSWCA 8 at paragraph [17]
56 This decision clearly endorses the decision in Bainbridge that the Modbury Case is still good law and applies to this case.
Wrongs Act 1958, Sections 48 and 49
57 Mr Gorton, Senior Counsel, submitted that s48 and 49 of the Wrongs Act 1958 set out what he described as “examining the calculus of negligence”. He also submitted that whilst this division of the Wrongs Act 1958 is headed “Duty of Care”, the provisions are to do with breach of the duty of care.
58 The provisions of the Wrongs Act 1958 do not remove or change the principles of law in relation to the duty of care as set out in Modbury. These sections of the Wrongs Act do not establish a duty of care in the circumstances of this case.
59 At the risk of repetition, the criminal act of the assault on the plaintiff was the event which occasioned the harm to the plaintiff. This assault took place after the plaintiff had reacted to incidental touching or leaning on the car by the ultimate assailants. The plaintiff’s reaction was one of verbal and physical aggression. The plaintiff followed the assailants after they had left the drive-through area of the defendant’s premises. It is after that separation of the plaintiff from the assailants that the event occasioning the harm takes place. The harm to the plaintiff is caused by the criminal action by unknown assailants.
60 In the circumstances of this case, the defendant did not owe the plaintiff a duty of care.
- - -
0
6
0