Ogden v Bells Hotel Pty Ltd - [2009] VSC 219

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7666 of 2007

SUSAN OGDEN	Plaintiff
v
BELLS HOTEL PTY LTD	Defendant

---

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATES OF HEARING:	21-24, 27-31 October, 3, 5-7, 10-12 November 2008
DATE OF JUDGMENT:	5 June 2009
CASE MAY BE CITED AS:	Ogden v Bells Hotel Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 219

---

NEGLIGENCE –Duty to prevent harm from criminal activity –Plaintiff employee victim of robbery at hotel – Psychiatric injury – Whether breach of employer’s duty by failure to take reasonable security measures - Effect of prior stressors – Subsequent police raid of victim’s home - Improper police behaviour - Causation - Whether police raid a novus actus interveniens – Damages – Whether damages for loss of earning capacity should include compensation for loss of benefit of investment of employer’s superannuation contribution

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Meldrum QC with Mr M. Walsh	Clark Toop and Taylor
For the Defendant	Mr R. H. Gillies QC with Ms M. Britbart	Minter Ellison

TABLE OF CONTENTS

The Claim............................................................................................................................................ 2

Duty of Care........................................................................................................................................ 2

Breach................................................................................................................................................... 3

Causation............................................................................................................................................. 3

Contributory Negligence.................................................................................................................. 4

Damages............................................................................................................................................... 4

The witnesses...................................................................................................................................... 4

The facts............................................................................................................................................... 5

Background.................................................................................................................................... 5
Employment at Bells Hotel.......................................................................................................... 8
Ms Ogden’s duties........................................................................................................................ 9
Security at Bells Hotel................................................................................................................. 11
The “two man rule”.................................................................................................................... 13
The robbery.................................................................................................................................. 19
Ms Ogden’s treatment and progress........................................................................................ 22
The Bells’ relationship with police after the robbery............................................................. 26
The Police raid............................................................................................................................. 27
Ms Ogden’s condition after the police raid............................................................................. 29

Conclusions....................................................................................................................................... 39

Breach............................................................................................................................................ 39
Causation...................................................................................................................................... 43
Contributory negligence............................................................................................................ 45
Damages....................................................................................................................................... 46

Pain and suffering and loss of enjoyment of life...................................................................... 46
Loss of earning capacity........................................................................................................... 46
Pre-trial earnings................................................................................................................... 46
Post trial earnings and superannuation............................................................................. 47

Overall assessment..................................................................................................................... 49

HER HONOUR:

The Claim

The plaintiff (“Ms Ogden”) claims damages for injuries which she alleges she sustained as a result of the negligence of the defendant (“Bells”), when she was the manageress of its “Bells Hotel” business and involved in an armed robbery on 23 May 2005. Her alleged injuries are of a psychological or psychiatric nature.

Bells denies that it was negligent. Alternatively, it denies that any negligence on its part caused injury, loss or damage to Ms Ogden. It also says that any injury, loss or damage she did suffer was caused by or contributed to by a police raid upon her home about a year after the robbery and by her own negligent failure to follow instructions in relation to opening the hotel or, alternatively, by her entry into the hotel when aware of the associated risks.

Duty of Care

It is common ground that, in the context of their relationship of employer and employee, Bells owed Ms Ogden a duty to take reasonable care to prevent harm to her caused by criminal activity.[1] The duty was one to provide a safe system of work.[2] It was not a duty to prevent harm per se[3] or a warranty of safety,[4] but rather…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ogden v Bells Hotel Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 219
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the case of Ogden versus Bells Hotel Pty Ltd, the plaintiff, Ogden, sought damages for psychiatric injury sustained as a result of a robbery at the defendant's hotel, where Ogden was an employee. The plaintiff argued that the defendant hotelier failed to take reasonable security measures, thereby breaching its duty to prevent harm from criminal activity. The defendant, Bells Hotel Pty Ltd, contended that the plaintiff's pre-existing stressors and subsequent police raid on the plaintiff's home, which involved improper police behaviour, were independent intervening events that broke the chain of causation. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court had to address were whether the defendant hotelier breached its duty of care by failing to implement adequate security measures, and if so, whether this breach was a proximate cause of the plaintiff's psychiatric injury. The court also needed to determine whether the police raid constituted a novus actus interveniens that broke the chain of causation, and whether damages for loss of earning capacity should include compensation for the loss of benefit of the employer's superannuation contribution.

The court found that Bells Hotel Pty Ltd did owe a duty of care to its employees to provide a reasonably safe workplace. The defendant had failed to take reasonable security measures, which contributed to the plaintiff's robbery and subsequent psychiatric injury. The court held that the police raid on the plaintiff's home, which involved improper police conduct, was not a novus actus interveniens. Instead, it was a foreseeable consequence of the initial breach by the defendant hotelier. The court also determined that damages for loss of earning capacity should include compensation for the loss of benefit of the employer's superannuation contribution.

The court ordered Bells Hotel Pty Ltd to pay damages to the plaintiff, including compensation for the loss of benefit of the employer's superannuation contribution, as well as damages for the psychiatric injury sustained by the plaintiff as a result of the robbery. The court's decision emphasised the importance of employers taking reasonable security measures to protect their employees from harm caused by criminal activity, and the need to consider all foreseeable consequences of a breach of duty in determining causation and damages.

Orders