Muller v Lalic

[2000] NSWCA 50

CITATION:	Muller v Lalic [2000] NSWCA 50
FILE NUMBER(S):	CA 40552/98
HEARING DATE(S):	18 and 22 February 2000
JUDGMENT DATE:	22 March 2000
PARTIES :	Garth Simon Muller (Appellant) Nikola Lalic (Respondent)
JUDGMENT OF:	Handley JA at 1; Powell JA at 2; Stein JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 1690/96
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	J D Hislop QC/ R I Goodridge (Appellant) M Anstee (Respondent)
SOLICITORS:	Firths The Compensation Lawyers (Appellant) In Person (Respondent)
CATCHWORDS:	NEGLIGENCE - whether storage of loaded rifle was unsafe - whether storage of loaded rifle was breach of duty of care - inherently dangerous chattel CAUSATION - whether son discharging rifle was novus actus interveniens - Firearms Act 1989 s 12. D
LEGISLATION CITED:	Firearms Act 1989; s 12
CASES CITED:	Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Burfitt v A and E Kille [1939] 2 QB 743 Chappel v Hart (1998) 195 CLR 232 Curmi v McLennan [1994] 1 VR 513 Dominion Natural Gas Co Ltd v Collins [1909] AC 640 Donoghue v Stevensen [1932] AC 562 Kavanagh v Akhtar (1998) 45 NSWLR 588 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 Medlin v SGIC (1995) 182 CLR 1 Smith v Leurs (1945) 70 CLR 256 Sullivan v Gordon (1999) Aust Torts Reports 81 - 524
DECISION:	1. Appeal allowed with costs; 2. The respondent, Nikola Lalic, to have a certificate under the Suitors' Fund Act, if otherwise entitled; 3. The verdict in favour of Nikola Lalic set aside; 4. Verdict and judgment entered in favour of Appellant against Respondent Nikola Lalic in the sum of $201,589.07; 5. The order that the plaintiff pay defendant's costs of the trial set aside and order that defendant Nikola Lalic pay plaintiff's costs of the trial be substituted; 6. Orders of Patten DCJ not otherwise to be disturbed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40552/98
DC 1690/96
HANDLEY JA
POWELL JA
STEIN JA

Wednesday, 22 March 2000

MULLER v LALIC

The appellant was seriously injured when he was shot in the chest by Michael Lalic with a gun Michael had taken from a locked wardrobe in his father’s bedroom.

Damages for negligence were sought in the District Court and a verdict against Michael Lalic was found. A verdict was found for the parents of Michael Lalic, Nikola and Darinka Lalic.

At first instance

The trial judge found that the fact that the gun was left with ammunition in its magazine did not warrant a conclusion of negligence by the respondent because the gun was kept in a secure location.

The discharging of the gun was an intervening act by Michael Lalic for which the respondent should not be held responsible.

Held (Stein JA, Handley and Powell JJA agreeing):

1. The weapon was negligently stored.

2. The weapon was stored in breach of s 12, Firearms Act 1989. Failure to comply with statutory requirements is evidence of negligence, Curmi v McLennan [1994] 1 VR 513 applied.

3. The chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage, Medlin v SGIC (1995) 182 CLR 1, Sullivan v Gordon (1999) Aust Torts Reports 81 - 524 applied.

Here, the conduct of Michael Lalic was not a novus actus interveniens that broke the chain of causation.

4. Appeal allowed.

OoO

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40552/98
DC 1690/96
HANDLEY JA
POWELL JA
STEIN JA

Wednesday, 22 March 2000

MULLER v LALIC
JUDGMENT

1    HANDLEY JA: I agree with Stein JA. 2    POWELL JA: I agree with Stein JA. 3    STEIN JA:

Introduction:

4    The appellant, Garth Muller, was seriously injured on 29 March 1994 when he was struck in the chest by a bullet fired from a high calibre military-style rifle (a .308 Winchester Calibre Ruger) by Michael Lalic. 5    The appellant sued three defendants in the District Court for damages for negligence. The first defendant, Nikola Lalic, is the father of Michael Lalic. The second defendant, Darinka Lalic is his mother, and Michael was the third defendant. At the hearing before Patten DCJ, counsel represented Nikola and Darinka Lalic. Michael Lalic however appeared in person. He conceded, so it seems, that he was negligent and did not dispute his liability for damages to the plaintiff, see CAB 209. 6    His Honour found a verdict against Michael Lalic, and gave judgment for the appellant in the sum of $201,589.07. The trial judge found a verdict for the defendants, Nikola Lalic and Darinka Lalic. The appellant appeals from the verdict in favour of the respondent. He does not now seek to disturb the judgment against the son Michael, nor seek to appeal the verdict in favour of Darinka Lalic.

The events of 29 March 1994

7    On the afternoon of 29 March 1994, the plaintiff, a mutual friend Mr Ibraham and Michael Lalic went to Michael’s home at Hinchinbrook. The house was owned by Michael’s father and mother, Nikola and Darinka Lalic. They went to Michael’s bedroom, which was upstairs. His parents were at home but were elsewhere in the house. When inviting the appellant and Mr Ibraham to his room, Michael told them he would show them his gun collection. He left the room and went to his father’s bedroom where he obtained an air gun and the subject weapon, the Winchester Ruger rifle, in a rifle bag. Michael returned to his room and took the rifle from the bag. The appellant noted that it had a single barrel, a dark stock and telescopic sight. When it was pointed, a red dot was displayed on the object. Michael proceeded to point it successively at the appellant and Mr Ibraham. According to his Honour, Michael then did something with the bolt and again pointed it at the appellant, who became extremely anxious and called out. 8    Michael pulled the trigger and a projectile hit the appellant in the chest. The appellant collapsed and suffered injuries which, for a while, were life threatening. 9    His Honour accepted that the shooting, although highly irresponsible, was an accident since Michael did not know that the gun was loaded.

The storage of the weapon

10    The trial judge found that the gun was owned by Nikola Lalic and kept in a wardrobe in his bedroom. He occupied a different bedroom from Darinka Lalic, as they had been estranged for many years. The wardrobe was locked and ‘for the most part’ the ammunition for the rifle was kept in a separate although adjoining wardrobe. The key to the wardrobe was kept on a dressing table in a box, which was also locked, and that key kept elsewhere. The only other occupants of the home were Michael and his younger brother, Rad. 11    The evidence was that Michael and his brother had at some time prior to the event been into their father’s room, found the key in the box and taken the rifle out. That is how Michael came to know how to gain access to the rifle on the occasion in question. 12    As against Nikola Lalic his Honour found as follows:

In my view the plaintiff has not established a breach of duty of care by Mr Nikola Lalic. In my opinion the keeping in a secure location of a gun which required the action of its bolt to introduce a cartridge into its breech in a house where there were only adults, adults albeit who had knowledge of and experience with guns, was not an act which would render the owner of the gun liable for the intervening act of an adult who, contrary to his father’s express directions, removed the gun from its locked wardrobe, worked the bolt so as to introduce ammunition into the breech and discharged it at his friend.

13    It should be mentioned that Nikola Lalic attended the District Court hearing but did not give evidence.

The appellant’s case

14    The appellant advanced four acts of Nikola Lalic which, so it was submitted, were negligent. These are:

(i) leaving the firearm loaded when there was no need to do so;
(ii) leaving the bolt in the firearm;
(iii) leaving the firearm safety catch off;
and
(iv) telling others that the rifle is never loaded, when this was untrue.

15 In addition, the appellant relies on a breach by the father of the requirements of s 12 of the Firearms Act 1989. As I understand the submission, it is not suggested that the provision provides an independent statutory count. Rather that breach of the requirements of the Act was evidence of negligence on the part of Nikola Lalic. 16 As at the date of the shooting s 12 relevantly provided as follows:

(1) A person who possesses a firearm must take all reasonable precautions to ensure its safe keeping.

(2) A person who possesses a firearm must ensure, … that the firearm and any ammunition for the firearm are stored in secure, locked storage …
(3) A firearm (being a firearm from which the bolt or firing mechanism is able to be removed with reasonable facility from the balance of the firearm and not being a pistol) and any ammunition for the firearm are taken to be stored in accordance with subsection (2) if:
(a) the bolt or firing mechanism is removed from the balance of the firearm; and
(b) the bolt or firing mechanism and the balance of the firearm are stored separately from each other; and
(c) no ammunition is in the firearm; and
(d) no ammunition is stored with the firearm.

17    Counsel for the appellant, Mr Hislop QC, points to evidence that the bolt was not removed from the balance of the firearm and the bolt was not stored separately. Further, according to the evidence, the firearm contained ammunition when Michael Lalic took it from his father’s bedroom.

The police record of interview of Nikola Lalic

18    While his Honour referred to Nikola Lalic participating intelligently in a police record of interview, his Honour made no reference to the contents of the interview. This is unfortunate because it is clear that the contents are critically relevant to the question of the father’s liability. 19    The accident occurred at around 4 pm. At 8.51 pm Nikola Lalic participated in a record of interview with police. His son Rad was present. The record of interview was admitted into evidence and became exhibit H. There was no objection by his counsel to its admission into evidence. 20    A reading of the record of interview tends to support his Honour’s assessment of the state of mind of Nikola Lalic when interviewed. It seems to be a rational and coherent account responding directly and clearly to the questions asked. 21    In the interview Nikola says that he was downstairs in the rumpus room when the incident occurred. Mrs Lalic was in the backyard and the boys were upstairs. He heard a shot and went up and saw the appellant lying on the floor. Michael told his father that he had accidentally shot the appellant. 22    Nikola Lalic said that he owned the rifle, which he described as ‘powerful’. He had owned it for about 3 years and used it on his farm to shoot rabbit and fox. 23    The questioning then turned to the security of the rifle in the home. The respondent indicated that the rifle was kept in his bedroom in a wardrobe. He said that it was kept in a rifle bag with the wardrobe locked. He was then asked some questions which may be seen to be equivocal, as also were the answers.

Q.43 Would you agree with me that each door to your wardrobe has a key in the lock?
A. Yes.
Q.44 Is there anything on the door from preventing people from opening the doors where the rifles were kept?
A. I don’t think so.

24    It is difficult to know what to make of this and it is inconsistent with Michael Lalic’s evidence of the locked wardrobe with the key in a locked box on the dressing table. What may be noted about the statement in the record of interview however is that Nikola Lalic did not explain to police the security system of locked wardrobe, the key to which was kept in a locked box on the dressing table, with the key to the box being kept in a drawer. 25    Nikola went on to tell police that the bolt was kept with the rifle and not removed. That is, that the rifle and the bolt were not stored separately but stored together.
26    He was then asked some crucial questions:

Q.50 Can you tell me if the rifle was left loaded in the wardrobe?
A. Yes. Probably one or two shots was in.
Q.51 Can you tell me why you left the rifle loaded?
A. No reason at all.

27    He was then asked further questions about safety instructions and answered ‘Always used to say be careful with the weapons’. He said that the ammunition was kept on the top shelf of the wardrobe. Nikola Lalic also said that the last time he had seen the rifle was ‘nearly 3 weeks ago’ when he used it to frighten off dogs. 28    On behalf of the respondent, Mr Anstee of counsel has submitted that the record of interview of his client should be given little or no weight because of Nikola’s mental condition. This submission must be rejected. It flies in the face of his Honour’s finding about Nikola’s mental capacity at the time. The record of interview was admitted without any objection by his counsel appearing at the trial. No voir dire was sought on its admissibility. There is in fact no evidence upon which this Court could conclude that Nikola Lalic was mentally disturbed or impaired at the time of making the interview. Indeed, the interview itself lends no support to the submission. Nikola Lalic was present in Court during the trial but not called to give evidence and no medical evidence was adduced as to his medical condition. There is no reason why the record of interview should not be given due weight.

The judgment at first instance

29 His Honour reasoned that the fact that the gun was left with ammunition in its magazine did not warrant a conclusion of negligence by Nikola Lalic because the firearm was kept in a secure location. He expanded on his conclusion in the manner I have already set forth earlier in para 10. 30 In addition, his Honour went on to hold that the discharging of the weapon was an intervening act by Michael Lalic for which his father should not be held responsible. 31 His Honour also held that even if the rifle was stored in contravention of s 12 of the Firearms Act, this did not warrant a finding of liability against Nikola Lalic. The question, however, did not arise because it was not established, according to his Honour, that the gun was kept in breach of the provision.

Liability

32    A loaded firearm is an inherently dangerous chattel, Dominion Natural Gas Co Ltd v Collins [1909] AC 640 at 646. A higher degree of care is required for a dangerous thing than for a non-dangerous thing. Lord Dunedin said:

It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms , poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter. A loaded gun will not go off unless some one pulls the trigger , a poison is innocuous unless some one takes it, gas will not explode unless it is mixed with air and then a light is set to it. [Emphasis added]

See also Donoghue v Stevenson [1932] AC 562 at 596 and 611; Burfitt v A and E Kille [1939] 2 QB 743 and Smith v Leurs (1945) 70 CLR 256 at 259, reference by Latham CJ to ‘loaded guns’.

33    While the distinction between things dangerous in themselves and things not so inherently dangerous has been criticised, it has survived as a reminder that, though no longer a determinant of duty, inherently dangerous chattels may call for a higher degree of care. See Fleming The Law of Torts 9th Ed 545 and cases there cited. 34 As I have said, there is no reason why due weight should not be given to the statements of Nikola Lalic in his police record of interview. Indeed, his admission that ‘probably one or two shots’ were in the rifle when he left it in the wardrobe and that he had no reason for so doing, explains how the accident occurred. Michael had no reason to know that his father had left the rifle in a loaded condition. Indeed, Michael gave evidence that his father’s practice and the house rules were to always ensure that the gun was kept unloaded, see also Michael’s record of interview. 35 That the father’s record of interview has some inconsistencies with Michael’s evidence is hardly surprising given that he was lead into answers in cross-examination by his father’s counsel. In the circumstances one might question the weight to be given to some of his answers. 36 It seems to me plain that the weapon was negligently stored. It was stored in clear breach of s 12 of the Firearms Act, which requirements are no more than common sense, and simple to apply. Two breaches are apparent on the evidence. The bolt was not removed from, and was not stored separately from the balance of the firearm, and the weapon was loaded. Safe storage required that these precautions be adopted. It is abundantly clear that if the rifle had not been stored in a loaded condition, the accident would not have happened. The failure to comply with statutory requirements is evidence of negligence, see Curmi v McLennan [1994] 1 VR 513. 37 It was submitted on behalf of the respondent that the system of locking of the wardrobe and the security of placing the key in a locked box with its key in a drawer, negatives any negligence in leaving the gun stored in a loaded condition. I disagree. Besides the respondent, at least three others knew of the security system for storage of the guns. Mrs Lalic knew because her husband had told her. Both Michael and his brother knew because they had searched their father’s room ‘when we were kids’ and found the keys. Clearly Michael knew that his father’s guns were stored in the locked wardrobe and he was intent on gaining access to them. That he (and Rad) were both adults at the time of the incident matters not. Common sense demands that a high degree of care is required when storing dangerous weapons such as this rifle. To store it in a loaded condition bespeaks of negligence notwithstanding that it was in a locked wardrobe. That one of the sons, or a stranger for that matter, might gain access to the loaded gun was foreseeable. 38 As Mason CJ held in March v E & M H Stramare Pty Limited (1991) 171 CLR 506, causation in negligence is a question to be determined by applying common sense to the facts. The test also applies to the question of whether some particular damage resulted from the negligent act or omission (Medlin v SGIC (1995) 182 CLR 1). As Beazley JA observed in Sullivan v Gordon (1999) Aust Torts Reports 81 - 524, Medlin demonstrates that the chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant’s negligence. See also Chappel v Hart (1998) 195 CLR 232, Kavanagh v Akhtar (1998) 45 NSWLR 588 and Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307. 39 In my opinion, the learned trial judge was wrong to find that the conduct of the son was a novus actus interveniens which broke the chain of causation. Pulling back the bolt and pulling the trigger, when he reasonably believed from what his father had told him that the gun was not loaded, is not such an intervening act. 40    The onus was on the respondent to prove that the damage was caused not by his negligence but by a novus actus interveniens. That was not discharged in my view. The evidence was that Michael did not intend the consequences which occurred. It comes back to what Lord Dunedin said in Dominion Natural Gas. A loaded gun will not go off unless someone pulls the trigger. There was no break in the chain of causation by the conduct of the son. 41    In my opinion, the appeal should be upheld with costs and the following orders made:

1. Appeal allowed with costs.

2. The respondent, Nikola Lalic, to have a certificate under the Suitors’ Fund Act , if otherwise entitled.

3. The verdict in favour of Nikola Lalic should be set aside and a verdict and judgment entered in favour of the appellant against Nikola Lalic in the sum of $201,589.07.

4. The order that the plaintiff pay Nikola Lalic’s costs of the trial should be set aside and an order that Nikola Lalic pay the plaintiff’s costs of the trial be substituted.

5. The orders of Patten DCJ should not otherwise be disturbed.

OoO