Nguyen v Hiotis and City of Charles Sturt No. Scgrg-98-1281

NGUYEN v HIOTIS & CITY OF CHARLES STURT
[2000] SASC 88

Full Court: Doyle CJ, Mullighan and Bleby JJ

DOYLE CJ:In an action in this Court, the plaintiff has sued two defendants, claiming damages for personal injury said to have been caused by the negligence of each of the defendants.
The second defendant, the present appellant, applied for an order striking out the Statement of Claim, on the ground that it failed to disclose any cause of action against the second defendant. A Master declined to strike out the Statement of Claim, but gave the plaintiff leave to file an Amended Statement of Claim. The plaintiff did this. After hearing further argument, the Master dismissed the application to have the Statement of Claim struck out.
The second defendant appeals against this decision. For convenience, I will continue to refer to the parties by their original titles.

The Court’s Powers

The application is made under r 46.18(a) of the Supreme Court Rules. That provision gives the court power to strike out a pleading that “discloses no reasonable cause of action …”. The court also has an inherent jurisdiction to dismiss proceedings that fail to show a reasonable cause of action.
It is not necessary to consider the differences that might attend the exercise of either source of power. The appeal was argued solely by reference to the terms of the Statement of Claim. Neither party invited the court to consider evidence of relevant facts.
It is common ground that the power to strike out the Statement of Claim, or to dismiss the proceedings, is not to be exercised unless the plaintiff’s case “is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 Barwick CJ. It is likewise common ground that the power is to be exercised with great care, to ensure that a plaintiff is not improperly or inappropriately deprived of the opportunity for the trial of the case in the usual way. In particular, if such an application gives rise to a substantial and difficult question of law, usually the application should be dismissed. However, in some cases it will be appropriate to hear extensive argument with the view to demonstrating that the Statement of Claim should be struck out: General Steel at 130.
The point to be emphasised is that the Statement of Claim will be struck out only if the claim as pleaded cannot succeed, or is clearly doomed to fail. It will not be struck out merely because the claim is weak or doubtful.
The issue in this case is whether the claim pleaded by the plaintiff against the second defendant discloses a tenable or arguable cause of action in negligence. That is all that the court has to decide.
That requires an examination of the Statement of Claim. Does it allege facts which are capable in law of founding the duty of care that the plaintiff alleges the second defendant owed to him?
At times, Mr Tilmouth QC for the plaintiff, submitted that facts might come out at trial that would strengthen the plaintiff’s case, or fill a gap in the cause of action as pleaded, if there was a gap. The application cannot be disposed of on that basis. The plaintiff must plead the elements essential to the existence of the duty of care upon which the plaintiff relies: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 252, Brennan CJ. The plaintiff must plead the material facts that could possibly establish that the second defendant owed it the duty of care alleged: Esanda at 289, McHugh J.

The Statement of Claim

At the hearing of the appeal, Mr Tilmouth put forward a further Draft Amended Statement of Claim. Mr Hevey, counsel for the second defendant, did not object to the appeal being argued by reference to this document. Both parties were anxious to resolve the substantive issue, and the further document did no more than allege some facts which appear to be relatively uncontroversial. Accordingly, for convenience I will refer to the Draft Amended Statement of Claim, although leave was not sought to substitute it for the existing Statement of Claim.
In what follows the italics emphasis indicates material that was added to the original Statement of Claim, and was before the Master, when he refused to strike the Statement of Claim out. The bold emphasis indicates material raised for the first time before the Full Court.
The Statement of Claim begins as follows:
“1.     The plaintiff is a person born on the 28th day of January, 1975.
2...... Angelo Hiotis (“the first defendant”), is and was at all material times the registered proprietor of APS Security, carrying on business as a security firm in the State of South Australia.
3.The City of Charles Sturt (“the second defendant”) is and was at all material times the owner and occupier of the Woodville Town Hall located at 72 Woodville Road, Woodville in the said State and is situated adjacent to the second defendant’s offices.
3A.... The said Hall has a seating capacity for up to 1,000 persons and is and was at all material times advertised by the second defendant as a Community Hall available for hire.
4.On the 7th October, 1995 at approximately 9.00 pm (‘the said evening’), the plaintiff, his partner and two friends attended a fashion parade at the Woodville Town Hall (‘the hall’), organised by one Pablo Vein and one Dominic Pham, who had on or about the 6th day of October, 1995 hired the hall from the second defendant as a venue for a concert and the said fashion parade. The terms and conditions of the said hiring were, inter alia, that:
4.1    a fee of $750.00 was to be paid;
4.2    a bond was required of $250.00;
4.3... the Hall would be used for a concert and a fashion parade;
4.4    at least 300 people were expected to attend;
4.5    sub-letting was prohibited.
5...... The organiser of the event hired the first defendant to provide security on the said evening at the hall to provide for the safety and security in and around the hall.”
The plaintiff then pleads that he paid an admission fee to a security guard at the hall, entered the hall, and took a seat at a table. The plaintiff pleads that while in the hall he was threatened by a group of men. The plaintiff decided to leave the hall. There were four or five security guards in the hall at the time, and at least two of them in the foyer of the hall. The plaintiff pleads that they were servants or agents of the first defendant. The plaintiff pleads that as he left the hall he was attacked by the group of men and the attack continued outside the hall. He pleads that requests to the security guards for help met with no response. After the plaintiff was seriously injured, security guards intervened and the attack stopped. The plaintiff then pleads:
“14... The said injuries to the plaintiff were caused by the negligence of the first or second defendant or either of them. In the circumstances pleaded in paragraph 1 to 13 inclusive hereof, the first and second defendants were under a duty of care to ensure the safety and security of the plaintiff. The second defendant was under a non-delegable duty of care to ensure the safety and security of those using the Hall (including the plaintiff) and/or to ensure that those hiring or licensing the Hall put in place adequate safety and security measures for the purposes of hiring and/or letting.
14AIn the alternative the defendants owed a duty of care to the plaintiff pursuant to s 17c of the Wrongs Act 1936.”
The plaintiff pleads that his injuries were caused by negligence and breach of the duty of each of the defendants. The particulars of negligence pleaded against the second defendant are these:
“17... The second defendant was negligent by itself, its servants and/or agents in that it or they:
(a).... Failed to ensure that there were sufficient security measures in place to protect the patrons including the plaintiff at the event.
(b)Failed to direct the organisers of the event as to the number of security guards required at the event.
(c).... Failed to ensure that there was an adequate system of security in place to protect patrons, including the plaintiff.
(d)Failed to ensure that the first defendant had in place an adequate system of security for the purpose of the said hiring.
(e).... Failed to instruct the first defendant as to an adequate system of security for the purpose of the said hiring.
(f)Failed to put in place and/or failed to direct the first defendant to put in place an adequate security system to deal with contingencies such as disruptions including fights and/or violence in or about the Hall.”

The plaintiff then pleads his injuries.

It can been be seen that the plaintiff alleges that the matters pleaded against the second defendant in paragraphs 3, 3A and 4 in particular, coupled with the fact that the plaintiff attended the hall, and paid an admission fee, and perhaps the fact that the event organiser hired the first defendant to provide security, gave rise to a duty of care on the part of the second defendant.
The plaintiff claims that the second defendant owed him a duty of care to ensure his safety and security while using the hall. Further or alternatively he pleads that the second defendant owed him a duty to ensure that the hirer of the hall made adequate arrangements for safety and security at the hall. In the alternative, the plaintiff pleads that the second defendant owed a duty of care to the plaintiff because the second defendant was an occupier of the premises. Section 17C(1) of the Wrongs Act 1936 (SA) provides that:
“... the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.”

I very much doubt whether s 17C has any application to the facts alleged by the plaintiff. The plaintiff’s claim is not related to the state or condition of the premises in question, but to the need for controls to be exercised over the behaviour of persons attending the premises. However, as s 17C simply invokes the principles of the law of negligence, its applicability can be put to one side.

The central issue in this case is whether the facts pleaded, if established, are capable of leading to the conclusion that, as a matter of law, the second defendant owed to the plaintiff a duty to take reasonable care for his safety, including a duty to take reasonable care to ensure that the behaviour of persons attending the hall was supervised and controlled so as to avoid the risk of harm to the plaintiff from misconduct of the type alleged here. In the alternative, the question is whether the facts are capable in law of giving rise to a duty of care on the part of the second defendant to ensure that the hirer of the hall had made adequate arrangements in relation to the control and supervision of persons attending the hall, to ensure that the plaintiff was not exposed to the risk of injury from misconduct of the type that is alleged.
In short, did the second defendant owe to the plaintiff a duty of care to ensure that adequate crowd control or security measures were implemented while the hall was being used for the concert and fashion parade, or a duty to take reasonable care to ensure that the person who hired the hall had made adequate arrangements for crowd control or security for the protection of persons using the hall during the hiring?
It is relevant to note that there is no allegation that the second defendant is vicariously liable for any negligence on the part of the first defendant.
The question of whether the second defendant owed the pleaded duty of care to the plaintiff, in its capacity as the owner and occupier of the hall, is to be determined by applying the ordinary principles of negligence: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
The question will not be determined by considerations relevant to the existence of a duty of care relating to the state of the hall, in sense of the structural safety, or the safety of the premises themselves. This is not a case of that sort. It would be easier if it was, because I have no doubt that even when the hall is let out, the second defendant owes to persons using the hall for the purpose of the hiring a duty to take reasonable care to ensure that the premises are safe to use.
To succeed in the present case, the plaintiff must establish more than that. The plaintiff must establish that the owner of a large hall, made available to the community for hire, and hired for a fee for a function like a concert and fashion parade, the function to be attended by a significant number of people (at least 300) is under a duty to take reasonable care to control the behaviour of persons attending the function, with a view to preventing harm to persons attending as a result of careless or unlawful or unruly behaviour by persons attending, or that the owner of the hall must at least take reasonable care to ensure that the hirer of the hall will take reasonable measures to control the behaviour of persons attending.
Nor will the question be determined by considerations relevant to cases in which persons actually conducting an event, or managing premises such as an hotel, have been held to be under a duty to take reasonable care in relation to what I will call crowd control. There is little doubt these days that a court will fairly readily conclude that the organiser of certain types of events, or a person whose business involves certain types of activity, will come under a duty of care to patrons in relation to crowd control. But in the present case the plaintiff claims that such a duty is imposed upon the second defendant even though it had nothing to do with the conduct of the concert and fashion parade, beyond the fact that the concert and fashion parade took place in its hall, and that it had agreed to that happening, in return for the payment of a fee.

Duty of Care

The claim pleaded is novel, in the sense that I am unaware of any decision holding that the owner of a hall made available for hiring for use by the public, owes a duty of care, when hiring the hall out, that requires the owner to take reasonable care for the safety of users of the hall by taking measures to ensure that appropriate crowd control measures will be adopted, and owes that duty simply because it is the owner, hires the hall out, and can expect a sizeable number of people to attend the hall for the purpose of the event to be conducted by the person hiring the hall. Neither party referred us to any decision imposing a duty of care, or denying one, in these circumstances or similar circumstances.
It is therefore necessary to consider whether it is arguable that a duty of care will be held to exist.
There is no settled approach by which an Australian court answers this question in a situation not governed by existing authority. This is sufficiently indicated by recent decisions of the High Court such as Pyrenees Shire Council v Day (1998) 192 CLR 330 and Perre v Apand [1999] HCA 36; (1999) 164 ALR 606. Although each of those cases raised the issue of the existence of a duty of care in a problematic but quite different situation to the present case, the reasons of the members of the High Court disclose that there is no single general approach required to be taken in deciding, for the first time, whether a duty of care will be held to exist in a particular situation: see, for example, Pyrenees at 416-420 Kirby J, Perre at 624 McHugh J.
This is not surprising. The law of negligence has been greatly extended in the second half of the 20th century. Courts have more openly identified the many factors that can be and should be considered in deciding whether to impose a duty of care in circumstances in which a duty of care has not previously been imposed. Earlier, more rigid and mechanical approaches have fallen out of favour, as it has become evident that a more discriminating approach is called for. It may be that no universal answer to the question, should a duty be imposed for the first time, will emerge. It may be that matters to be considered vary so much that it will be impossible to identify anything more than a general approach to be taken.
Be that as it may, the second defendant in this case is nevertheless entitled to have its application decided. The court cannot escape its responsibility to decide whether or not it is arguable that a duty of care will be held to exist. If the claim is ultimately doomed to fail, the court should say so now.
To the extent that it is necessary to take a particular approach to answer the question now posed, I favour the approach taken by McHugh J in Perre. He called this approach the incremental approach. But I make it clear that in answering the question posed, I do not consider myself to be controlled by that approach. I will endeavour to consider the matter from all angles.
The starting point is that the case is not one in an established category in which a duty of care has been held to exist.
Was the harm that the plaintiff alleges he suffered a reasonably foreseeable consequence of the alleged failure by the second defendant to ensure that appropriate crowd control measures were taken?
In my opinion that question should be answered in the affirmative. It is reasonably foreseeable that a person attending a function at a hall, the function being open to the public and likely to be attended by a sizeable number of people, will be injured by careless, unruly or unlawful conduct of other persons attending, if appropriate crowd control measures are not adopted.
I turn then to some analogous situations.
The courts have imposed a duty of care on owners of premises, in relation to the safety of those premises, when the premises are let out by the owner to a hirer who will invite or permit members of the public to attend: see, for example, Voli v Inglewood Shire Council (1963) 110 CLR 74 at 89, 95-96. The basis of the imposition of that duty is the control of the premises, and the ability to control admission to them, coupled with the existence of the power that an owner has to remedy defects in the presence. More recently the duty has been held to exist in relation to premises let to a tenant, and to be owed to persons whom the tenant permits to reside at or enter the premises: Northern Sandblasting Pty Limitedv Harris (1997) 188 CLR 313.
Although this category of cases has been limited to a duty of care in relation to defects in the premises, it can be said that the foundation of that duty, control over the premises, exists in the present case. The second defendant’s ownership and control of the hall gave it power to require that appropriate crowd control measures be implemented, or power to take them itself, if it saw fit. That could have been a condition of the hiring of the hall. On the other hand, the owner of a hall hired or let out does not have the same measure of control or influence over an activity to take place in the hall, as that owner has over the physical state of the premises at the time of the letting or hiring.
But, so far as I am aware, the duty of care has not extended to a duty of care generally in relation to activities undertaken by the hirer of premises or by a tenant, in relation to any risk of harm to others that may be attendant upon that activity. In saying that I put to one side cases in which premises are hired or let for an activity which the owner of the premises knows are likely to be hazardous to persons or to adjoining property.
Such a case is Wilkinson v Joyceman [1985] 1 QdR 567. In that case the owner of land granted to an association a licence, terminable on three months’ notice, to use the land for stock car and motor cycle events. The association constructed a track for racing and a “pit area” on the land. The appellant’s husband was killed when struck by a car which ran off the track, out of control. The deceased was a spectator at an event organised by the association. The owner of the land had no involvement in the affairs of the association, or in the conduct of the racing event in question.

The Full Court of the Supreme Court of Queensland held, reversing the trial judge, that the owner of the land owed a duty of care to the appellant’s husband. Significantly, that decision was reached on the basis of findings that motor racing was a dangerous sport, that the owner knew that spectators would be present and that the owner knew that reasonable safety precautions were not being taken: see Campbell CJ at 573-574, McPherson J at 588, 589-590.
The decision in that case has some analogies to the present case, but it is clear that the Full Court put considerable weight on the owner’s knowledge of the danger of motor racing, of the lack of proper precautions being taken, and of the continuation of that activity with that knowledge, the owner having power to terminate the activity. No such matters are pleaded in the present case.
There are many cases in which the courts have imposed a duty of care that requires a person to exercise reasonable care to control the conduct of others. That control might be required to be exercised in relation to unlawful or careless conduct by others. Such duties have been imposed on the occupiers of premises, on employers, on carriers, on persons who assume responsibility for the management of an event or for the conduct of others (such as children). There is little doubt that if the hirer of the hall had been sued in the present case, the court would conclude that a duty of care was owed by the hirer in relation to crowd control measures. In such cases the duty is probably founded on the foreseeability of harm and the fact that the person subjected to the duty organises or conducts an event that gives rise to the foreseeable risk of harm, or carries on a business or activity that gives rise to a foreseeable risk of harm. There is also the fact that in such cases the person, the subject of the duty, is in control of the event or business or activity, and usually benefits from it. Once again, no cases were drawn to our attention in which a person who was merely the owner of premises, on which another conducted an activity, with the owner’s permission, has been subjected to a relevant duty of care in respect of the activity, the owner having no interest in the activity and having no knowledge of dangers associated with the activity.
In the present case it is not pleaded that the second defendant had anything to do with the event at which the plaintiff was injured, beyond the fact that the second defendant permitted its premises to be used with knowledge that an event of the type described would take place in them.
The present case is also to be distinguished from cases such as Modbury Triangle Shopping Centre Pty Ltd v Anzil and Anzil [1999] SASC 335; (1999) 204 LSJS 212. There, the owner of a shopping centre was held to owe a duty of care to provide lighting for a car park that was used in association with the shopping centre. The shopping centre comprised individual shops that were let by the owner to tenants. The car park area was used by tenants and persons visiting their shops, and was owned and occupied, in the technical legal sense, by the owner of the shopping centre. The duty of care in respect of lighting was held to relate not just to the safe use of the car park (adequate lighting to avoid obstacles at night), but also to the provision of reasonable protection against the risk of attack by third persons at night. The plaintiff, who worked at the shopping centre, was attacked and injured when leaving the shopping centre at night. The duty of care that the court imposed in that case no doubt rests on the foreseeability of harm, and the fact that the owner of the shopping centre was the occupier of the common car park, and had the power and authority to manage, light and control the common area.
In the present case, the pleading does not suggest that the plaintiff was injured in an area that remained under the control of the second defendant. There is no suggestion that the activity conducted by the hirer was one in which the second defendant had an interest, or that the second defendant was in fact exercising any powers of management or supervision during the event.
There are no other analogous areas of the law of negligence that occur to me as being of particular relevance to the present case. The fact that the decided cases have gone no further than they have suggests that the owner of hired premises might not have a sufficient interest in or control over an activity conducted by the hirer to justify the imposition of the pleaded duty of care. In referring to the pleaded duty of care I again emphasise, as I will explain in a little more detail, that nothing is pleaded to suggest that the second defendant should have anticipated a particular need for care to be taken in relation to the relevant function.
The plaintiff does not plead as against the second defendant that it had any statutory powers or duties in relation to the use of the hall that might be a source of a duty of care. The second defendant itself did not invite anyone to attend the function. The plaintiff does not plead that the second defendant is vicariously liable for any negligence on the part of the hirer of the hall or on the part of the first defendant.
As I have already mentioned, the plaintiff does not plead any matters capable of suggesting that in the particular circumstances of the case there was any particular need for the second defendant to anticipate a need for crowd control. These matters might be more important in relation to breach of duty than to existence of duty, but as Wilkinson v Joyceman [1985] 1 Qd R 567 demonstrates, a duty of care might be imposed on an owner who hires out a hall for an activity which is, for some reason, evidently attended with a risk of harm to persons attending the hall from careless, unruly or unlawful conduct. There are a number of matters worth mentioning under this head. The plaintiff does not plead that the number of persons permitted to attend the hall would exceed the capacity of the hall, or was such as to be likely to give rise to behavioural problems. The plaintiff does not plead that the second defendant knew or should have known that the function was of a type likely to give rise to unruly or unlawful behaviour. The plaintiff does not plead that the second defendant knew or should have known that there were persons likely to be in attendance who might behave in an unlawful or unruly manner. There is nothing at all pleaded to suggest that the second defendant had any particular reason to anticipate behavioural problems at the event. The function itself, said to be “a concert and a fashion parade”, seems a relatively harmless sort of event. The plaintiff does not plead that the second defendant usually provided crowd control at the hall to protect persons attending functions at the hall. The plaintiff does not plead that alcohol was being served at the function. The plaintiff does not allege any history of fighting or unruly behaviour at events conducted at the hall. These are all matters that might give rise to a duty of care of the type pleaded in a particular case, although I do not say that they would do so in fact.
On the other hand, I accept that a user of the hall in the night in question was in a vulnerable position, in the sense that there was little or nothing that a user of the hall could do to protect himself or herself from unruly or unlawful behaviour, were it to occur.
The plaintiff does not plead any general reliance upon the second defendant in particular, or upon the owners of halls that are hired out, to take measures to ensure that appropriate crowd control measures are adopted. For what it is worth, I do not consider that a user of such a hall would usually expect the owner of a hall to implement crowd control measures. If anything, it would be expected that the hirer of the hall would do that.
In that connection I also bear in mind that community and club halls are regularly hired out for all sorts of functions, but that it is not usual, so far as I know, for the owner of such halls to assume a responsibility for crowd control.
It is not easy to identify a relationship of proximity between the plaintiff and the second defendant. Persons attending the hall did not do so at the invitation of the owner of the hall. Subject to any limit as to numbers imposed by the second defendant, persons attended the hall on terms and in numbers to be determined by the hirer of the hall. On the other hand, the second defendant did know that a sizeable number of the public would attend. I also accept that there is a sufficient relationship of proximity to give rise to a duty of care in relation to the physical state of the premises. Under this heading it might also be relevant to observe that ordinarily the second defendant, as owner of the hall, would have only a limited knowledge of the nature of the event to take place, the number attending and the crowd control requirements. It would not be easy for the owner of the hall to inform itself fully about an event with a view to making an informed assessment as to the crowd control requirements.
It does not seem to me to be fair, just or reasonable to impose a duty of care in the circumstances pleaded. It has not been generally thought that the owner of hired premises is responsible as a matter of course for the protection of persons attending those premises from harm caused by other persons attending the premises for the purpose for which they are hired. I recognise, however, that it is not necessarily imposing a heavy burden to require at least that the owner take reasonable care to ensure that the hirer has made adequate arrangements in relation to crowd control and security. But, as I have already mentioned, it is not easy to see how the owner acquires sufficient information about the event to be conducted to make a realistic assessment of the hirer’s proposals. In that context, I mention that there is no allegation in the present case that the second defendant knew or had reason to believe that the hirer would not implement any or any adequate crowd control arrangements.

Conclusion

On the bare facts pleaded, it would be a substantial extension of liability in negligence to impose a duty of care. As I have said, the plaintiff pleads no more than that the second defendant let out the hall for a fashion parade and concert for 300 people. Ultimately, that is the basis of the alleged duty. That is, the grant of permission, in return for a payment, to use a community hall for a function involving about 300 people, there being nothing about the function to suggest a particular need for crowd control. There is no pleading of any particular factor that should have caused the second defendant to anticipate a need to implement crowd control measures, or to ensure that the hirer of the hall had done so. Nothing is pleaded to suggest that the second defendant knew or should have known that the hirer might not take adequate measures. The second defendant’s control over the use of its premises, coupled with the reasonable foreseeability of harm of the type in question, seems to me to be the sole basis for imposing the duty pleaded, and to be an inadequate basis.
My conclusion is that there is no reasonable prospect of a court holding that a duty of care does exist in these circumstances. Accordingly, I would allow the appeal, set aside the order of the Master, and substitute an order striking out the Statement of Claim as against the second defendant, but giving the plaintiff liberty once more to amend his Statement of Claim, if so advised. I would make that last order on the basis that during argument Mr Tilmouth QC indicated that, if necessary, there were further matters that the plaintiff might plead that might give rise to an arguable duty of care. I took him to refer to matters going beyond those raised in the document set out earlier in these reasons.
MULLIGHAN J: I agree that the appeal should be allowed and the Statement of Claim should be struck out for the reasons given by the Chief Justice. I also agree that the plaintiff should be at liberty to further amend his Statement of Claim if so advised.

BLEBY J: I agree with the orders proposed by the Chief Justice and with the reasons that he gives. I merely add some brief supplementary reasons of my own.
The law of negligence is never static. It has been one of the most productive areas of judicial development since its modern formulation in Donoghue v Stevenson [1932] AC 562. One of the great strengths of the common law is its ability to react in this area to meet new situations and to evolve according to the needs, the requirements and the responsibilities of a modern society.
The Statement of Claim pleads the existence of a duty of care by the defendant and a breach of that duty. When it comes to consider an application to strike out the statement of claim on the footing that the facts pleaded disclose no reasonable cause of action, one must hesitate to cut off the stem for fear of preventing a legitimate bud from developing into a healthy flower and ultimately wholesome fruit. Particularly should such an application be carefully scrutinised where it is apparent that in the law of negligence no analogous case has ever succeeded. Evolutionary change, when it is justified, must be allowed to occur. It will be stifled by over‑zealous striking out of doubtful pleadings.
That is why the test is a stringent one. The pleading must disclose no reasonable cause of action (Rule 46.18), or it must be shown that the cause of action pleaded “is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 130. To return to the horticultural analogy, the stem cannot be cut off if there is an apparent bud which may ultimately bear fruit. It is only if there is no prospect or hint of a bud that there is no risk of the fruit being formed, and the stem may then be severed.
Having said that, however, there must be alleged sufficient material facts which, if proved, will raise at least the possibility of success. The substance of what is alleged by the plaintiff is that the defendant is the owner and occupier of premises for hire, being premises which will seat up to 1,000 people. The premises were hired, apparently only on the day before the event, for a concert and fashion parade. On that basis alone, it is alleged that the defendant owed a non‑delegable duty of care to those lawfully on the premises for the purpose of attending the function, to ensure their safety and security from attack by other persons who might enter the premises, whether legitimately or not.
No case of which I am aware has come remotely near determining that a duty of care exists in these circumstances. That is not to say that the owner or occupier of premises let out for hire to another can never owe a duty of care to a person attending a function to prevent him or her from being injured by virtue of an activity being carried on and forming part of or incidental to the hiring. So much is clear from Wilkinson v Joyceman [1985] 1 QdR 567 referred to by the Chief Justice. However, in that case, there were a great many additional and relevant facts proved. The Statement of Claim in this case does not allege any other material facts beyond those which I have summarised. Those facts by themselves are insufficient, if proved, to impose any duty of care on the defendant in respect of the plaintiff to prevent the injuries he suffered. Additional facts could possibly be alleged which would deny to the defendant its right to have the pleadings struck out. The Chief Justice has given numerous examples of how they might arise.
It is not sufficient, as Mr Tilmouth QC submitted for the plaintiff, that the pleading should be allowed to stand and that it be left to any facts adduced in evidence to prove the existence of the duty. The defendant is entitled to know what the material allegations of fact are on which the plaintiff relies before the matter comes to trial.
I appreciate that the plaintiff may be in a position of disadvantage. He is probably a stranger to both the hirer and the owner/occupier. He may not have ready access to or cooperation from persons who could supply him with information as to negotiations between the hirer and the defendant. However, that is not an unusual situation facing potential plaintiffs. They have available to them pre‑action procedures which may assist. It is also common for injured plaintiffs to have to undertake some professional investigation in order to gather evidence of the facts necessary to be alleged before a cause of action can be pleaded. As long as the plaintiff bears the onus of proof, that situation will continue. The relevant facts may not be confined to the circumstances of negotiations between the immediate parties to the hiring. There could be other material facts quite independent of the hiring which, in the circumstances, create a duty of care. The plaintiff cannot rely on the possibility that he may stumble across such facts in preparing for or in the course of the trial.

[2000] SASC 88

11 May 2000