Perera v Prestige Property Services Pty Limited

[2003] NSWCA 316

CITATION:	Perera v Prestige Property Services Pty Limited [2003] NSWCA 316 revised - 10/11/2003
HEARING DATE(S):	21 October 2003
JUDGMENT DATE:	21 October 2003
JUDGMENT OF:	Spigelman CJ at 1; Tobias JA at 2; Hodgson JA at 54
DECISION:	Appeal dismissed with costs
CATCHWORDS:	NEGLIGENCE - whether failure to take certain precautions resulted in breach of duty of care - PRACTICE - whether trial judge's reasons were adequate - s75A Supreme Court Act - ND
LEGISLATION CITED:	Supreme Court Act, s75A
CASES CITED:	Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Kingsgrove RSL Club Limited v Spasevski (2002) NSWCA 342
PARTIES :	Albert Suwantha Perera Prestige Property Services Pty Limited
FILE NUMBER(S):	CA 40788/02
COUNSEL:	A: D E Baran R: P Deakin QC / N Gambie
SOLICITORS:	A: Carroll & O'Dea R: Herbert Greer & Rundle

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1412/01
LOWER COURT JUDICIAL OFFICER :	Balla J

CA 40788/02
DC 1412/01

SPIGELMAN CJ
TOBIAS JA
HODGSON JA

21 October 2003

ALBERT SUWANTHA PERERA v PRESTIGE PROPERTY SERVICES PTY LIMITED

Judgment

1 SPIGELMAN CJ: I will ask Justice Tobias to deliver the first judgment.

2 TOBIAS JA: On 26 February, 1998 the appellant, who was employed by the respondent as a cleaner, suffered injuries to his face when he was assaulted whilst performing cleaning work at the Mandarin Centre (“the Centre”) in Chatswood. He instituted proceedings in the District Court against the respondent, alleging a breach of its duty of care in failing to ensure that proper security measures were in place to avoid the foreseeable risk of the appellant being assaulted during the course of his employment.

3 The proceedings were heard by her Honour Judge Balla, who on 19 August 2002 entered judgment for the respondent. It is against that decision that the appellant appeals to this Court.

4 At the time of the accident, the appellant had been working as a cleaner at the Centre for approximately five months. He worked seven days per week from 4.30 pm to 12.30 am. On the night in question, the appellant was assaulted at approximately 11.04 pm.

5 The Centre is a small to medium sized retail shopping complex in Chatswood, comprising five retail levels above basement car parking. The appellant was required to work on the ground, first and second floors. The ground floor comprised retail shops; the first floor comprised shops and a Time Zone video arcade, together with a security office; the second floor comprised a food court; the third floor comprised a Hoyts cinema complex (“the cinema”) and video arcade; and the Gordon Rugby Club (“the club”), which was licensed, occupied the fourth and fifth floors. The second floor was accessible from both the lower and upper floors via stairs, a set of escalators and two lifts.

6 At the time of the assault, the shops within the Centre, including those on the second floor, were closed. However, the cinema and the club were both open. Patrons of both the club and the cinema had access to the second floor where the appellant was working. A security video (exhibit 8) revealed that around the time of the assault a relatively steady stream of people were passing through the second floor.

7 Plans of the Centre admitted in evidence revealed the following means of pedestrian access to the floors of the building. Access from the ground floor to the first floor was by a two-bank lift (“the lift”) and dual (that is to say two-way) escalators (the escalators). Access from the first floor to the second floor (where the appellant was working at the relevant time) was via the lift, the escalators (in a different location) and a set of stairs. Access from the second floor to the third floor (the cinema foyer) was also by the lift, the escalators (again in a different location) and a continuation of the same set of stairs. The plans also reveal that access from the third floor to the fourth floor (the foyer of the club) was by a further continuation of the stairs and the lift, although the proceedings seem to have been conducted on the basis that the only access to the fourth and fifth floors was via the lift. The stairs referred to above do not include fire stairs. There was no escalator access from the 3rd floor to the 4th and/or 5th floors.

8 Immediately prior to the assault, the appellant was mopping the floor at a location approximately five to seven metres west of the top of the escalators leading down to and up from the 1st floor. A man aged in his mid-twenties (the assailant), accompanied by a female, walked past the appellant and, in doing so, scuffed with his shoes the floor that the appellant had recently cleaned. Nothing was said by the appellant to the assailant, who then proceeded with his companion to the floor below via the escalators.

9 However, it would appear that the appellant did watch the assailant and his companion descend to the next floor and the assailant observed that he was being watched. He and his companion then returned up the escalator. The appellant saw the assailant starting to ascend and walked towards the top of the escalator to see why he was returning.

10 According to the primary judge, the appellant was not concerned about his safety at that time. He thought that the assailant only wanted to say something to him. Her Honour then found that almost immediately after the assailant arrived at the top of the escalator, he struck the appellant in the face. In cross-examination, the appellant agreed that the assault was sudden and without warning, and that it was only in the few seconds before he was struck that he realised he was in danger.

11 Upon being assaulted, the appellant fell to the floor. The assailant was standing over him and screaming at him, but then apparently he disappeared. The appellant went to the toilet and, after he came out, he contacted security on his two-way radio. Two security officers were in attendance on the appellant eleven minutes after the assault.

12 The appellant did not receive any directions from his supervisor as to how to deal with a potentially violent situation, although he agreed in cross-examination that in December 1997 he had undertaken a short course for a security licence, which included some training in dealing with aggressive people. In any event, the respondent did not give him instructions as to how to handle himself when confronted with a possible or actual assault; nor was he instructed in conflict management.

13 As I have already noted, there was a security office located on the first floor of the Centre, and security officers were present in the building prior to, at the time of and after the assault. The appellant had been provided with a two-way radio, which enabled him to contact the security office. He had not, however, been provided with a panic or duress alarm.

14 Although the appellant gave evidence that he did not see security guards patrolling the area to any great extent, the security video and the stills taken therefrom, reveal a security guard at or near to the top of the escalators at the 2nd floor level at 22.49.50, 22.51.45 and 22.53.45. At 23.03.45 it depicts two persons, being the assailant and his companion, walking in what appears to be an easterly direction towards the top of the escalators. It also shows the appellant cleaning the floor.

15 A still frame from the video at 23.03.48 again shows the appellant cleaning the floor and the assailant and his companion walking in what appears to be a direct line towards the top of the escalators. A frame taken at 23.03.59 shows the assailant and his companion approaching the top of the escalators and shows three other persons descending the escalator ahead of them. A frame at 23.04.05 shows the assailant and his companion on the descending escalator.

16 A frame at 23.04.21 shows the appellant leaving the location where he was cleaning when the assailant and his companion passed by and walking towards the top of the escalators. A frame at 23.04.30 shows the assailant and his companion at the top of the ascending escalator and the appellant walking towards the top of that escalator: the appellant and the assailant being separated by approximately 3-4 metres.

17 A frame at 23.04.31 shows the assailant now at the top of the escalator and the appellant facing him at a distance of approximately 1.5 metres. The next frame at 23.04.33 shows the assailant and his companion at the top of the escalator and shows the appellant on the ground, having just been assaulted. A frame at 23.08.28 shows a security guard who appears to have just come up the escalators, but does not show the appellant who was presumably in the toilet at that time. The final still at 23.15.48 shows the appellant seated at a table close to the top of the escalators speaking to two security guards.

18 The case for the appellant was that the respondent had breached its duty of care by failing to:

(a) conduct a risk assessment to determine the level of risk of assault to which the appellant was potentially exposed and whether the security system or systems in place were commensurate with that level of risk;
(b) provide the appellant with a panic/duress alarm which, when activated, would emit a loud siren type noise;
(c) provide warning notices capable of being observed by members of the public that the area was subject to video surveillance or closed circuit television surveillance;
(d) restrict access to the area where the appellant was working by stopping the lifts from opening at the second floor level after the shops there had closed or roping that area off as a form of access control, or by the provision of some other form of barrier that would discourage persons from entering the area unnecessarily;
(e) take such other steps as would divert crowds away from the escalators and, in particular, the area of the second floor, which was being cleaned;
(f) ensure that the appellant was working with another employee so that he was not on his own;
(g) ensure that the security guards patrolled the area where the appellant was working at regular and frequent intervals.

19 Each party led expert evidence from security consultants. The appellant called a Mr Parker-Smith, who opined that the Centre was exposed to gang activities and that, in particular, businesses such as Time Zone, the cinema, and the food court were likely to attract teenage and young adult age groups which were typical of the age group of members of gangs. Although Mr Parker-Smith accepted that the response time from the security office on the first floor to the top of the escalators at the second floor was only approximately 15 seconds, he considered that the cleaning staff should have been issued with a panic/duress alarm, and that the video or closed circuit television surveillance, which was in existence, should have been more extensively and prominently displayed.

He considered that the appellant was a possible target because he worked alone in an isolated area that was accessible to the public late at night. He was also of the view that the appellant fitted the profile of a person who would be classified as a potential victim. Accordingly, he was of the opinion that measures should have been taken to restrict access of high risk persons, such as intoxicated young males from the club, to areas where trading had ceased and where cleaning staff were working alone.

20 Mr Parker-Smith was of opinion that the likelihood of a person being assaulted in these circumstances would be significantly reduced by such measures. He was also of the opinion that the lift should have been stopped from opening on to the second floor (although there was no evidence that the appellant’s assailant entered the second floor from the lift) and that the area where the appellant was working should have been roped off, as some form of access control.

21 The respondent called a Mr Richard Jennings, an experienced security consultant. Although he was of the opinion that a risk assessment should have been carried out, Mr Jennings nonetheless considered that the security measures which were in place were sufficient in the circumstances. In cross-examination, he agreed that one way of reducing the prospect of a person being ejected from the club and finding himself in the food court on the second floor, would be to close off the lift to that floor. However, as I have indicated, there was no evidence that the assailant entered the second floor from the lift.

22 The primary judge found that the assailant had not come from the club, and this is clear from the video stills, which were admitted into evidence, and from the way he was dressed. There was no challenge to this finding. In all probability the assailant and his companion had descended the stairs from the cinema foyer on the third floor and were making their way to the escalators to descend to the street.

23 The primary judge was not impressed with the appellant’s credibility. She determined that where there was a conflict between the appellant’s and other evidence, she preferred that other evidence, including the inferences which she was able to draw from the video stills and tape. Given the conflict in the expert evidence, the primary judge preferred that of Mr Jennings called on behalf of the respondent.

24 However, at the end of the day, her Honour found that the respondent owed the appellant a duty of care and that the risk of the appellant sustaining an injury by way of an assault was foreseeable. In her opinion:

“The real issue in these proceedings is whether the defendant had taken all reasonable steps to minimise the risk of injury to the plaintiff.”

25 The primary judge then concluded in the following terms:

“The evidence establishes that there cannot be 100 per cent security, ie a security system is devised to diminish the risk to a level where the likelihood of harm is negligible. It was the opinion of Mr Jennings that the system implemented met this standard.
I accordingly find that while the defendant did breach his duty of care to the plaintiff by not ensuring that an assessment had been undertaken, and an assessment would have found that the system in place was appropriate and that the injury would have occurred in any event.”

26 As I understand the foregoing, the primary judge made three findings. Firstly, the only breach of duty by the respondent was its failure to carry out a risk assessment. Secondly, had such an assessment been performed, it would (based on the evidence of Mr Jennings) have found that the security measures in place comprising the video surveillance of the area where the appellant was working, together with the provision of a two way radio linked directly to the security office on the first floor, was adequate. Thirdly, in any event none of the additional measures advanced by the appellant would, in the circumstances, have prevented the assault occurring.

27 It was common ground that, given the relationship between the appellant and the respondent of employee/employer, the respondent had a duty to take reasonable care to protect the appellant from the random and unpredictable criminal behaviour of third parties: Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 at [26] and [142] and see the cases cited in footnote 39. So much was recognised by the primary judge.

28 Furthermore, her Honour found that the risk of injury to the appellant was neither farfetched nor fanciful, as evidenced by the provision to him of a two-way radio which, according to her Honour, suggested that he was recognised as being at risk of personal harm. In this regard, the appellant was aware and understood that if there was any threat to him personally he was to contact the security officers on his radio.

29 As I have noted, the primary judge considered that the real issue in the proceedings was whether the respondent had taken all reasonable steps to minimise the risk of such injury to the appellant. It seems to me that her Honour considered based upon Mr Jennings’ evidence, that there were no other steps that could reasonably have been taken. If that is so, then it does not appear to me to be correct.

30 There were other steps that could have been taken and which were detailed in the evidence of Mr Parker-Smith. It also seems that Mr Jennings was more of the view that, although such steps could have been taken, they would not have averted the assault on the appellant, given its sudden and unexpected nature. It is in these circumstances that the primary judge considered that the appellant’s “injury would have occurred in any event”. In other words, the appellant failed on the issue of causation.

31 The appellant’s submissions to this Court have been based upon the assumption that that was the issue upon which the appellant failed at first instance. Apart from attacking the paucity of the primary judge’s reasons on this issue, it was submitted that the issue of causation could only have been properly found in favour of the respondent if her Honour had been satisfied that the additional precautions, in particular the provision of ropes or other barriers denying patrons access to the second floor whilst it was being cleaned, were either unreasonable, or if reasonable, would not, based on the evidence, have acted to avert the assault in question.

32 Reliance was placed upon what was said by Handley JA (with whom Sheller and Hodgson JJA agreed) in Kingsgrove RSL Club Limited v Spasevski (2002) NSWCA 342. In that case the plaintiff was employed by the defendant as a bar stewardess in its bowling clubhouse. Two armed men robbed the clubhouse while she was on duty. Two previous robberies had occurred, but no further steps had been taken to protect the employees as a consequence of the defendant’s knowledge of these events. As nothing was done to upgrade the security of the club, the trial judge’s conclusion that it was in breach of its duty of care to the plaintiff was upheld, as was the judge’s finding on causation.

33 After the first robbery, management took steps to improve security at the clubhouse. Security advisers were consulted and, on their advice, a security fence and alarms were installed. These were the only arrangements in place at the time of the second and third robberies. However, there were no security guards on patrol or on duty at the time of the assault on the plaintiff.

34 Further, the plaintiff’s evidence was that not only had she been given no instructions how to act in a hold-up, but also she was not told the whereabouts of the hold-up alarms, and she was unaware of their existence. It is perhaps a coincidence that Mr Jennings gave evidence for the plaintiff in that case. He opined that the presence of visual crime deterrents or preventative systems could play a major part in placing the success of a crime in some doubt in a criminal’s mind.

He said the principle of visual deterrents was to make any secure practice obvious to potential offenders, and that a major contributing factor in such visual crime deterrents was the placement of uniformed security operatives in the foyer and/or close to the centre of financial management.

35 Mr Jennings was also of the view that had measures such as the placement of a guard in the locations referred to occurred, the robbery would almost certainly not have taken place. Although he said that there was no such thing as 100 percent security, the trial judge found that by not providing security staff to patrol the club’s premises at the relevant times (and thus affording some protection to its employees), the defendant had not provided a safe system of work.

36 As Handley JA pointed out in his judgment, the purpose of having a security guard was to deter would-be robbers so that they would choose a softer target elsewhere. Mr Jennings’ evidence had referred to the need to deter such persons when they would be reconnoitring the premises and deciding a robbery or a further robbery.

37 On the issue of causation, the appellant in the present case placed reliance upon the following paragraphs from Handley JA’s judgment:

“30. ... Proof of causation where the risk to be guarded against involved the ‘random and unpredictable’ behaviour of criminals is intrinsically difficult, but the law does not leave the tribunal of fact without appropriate guidance. In Bennett v Minister of Community Welfare (1992) 176 CLR 408, 420 Gaudron J said:

‘...a case based on omission or a failure to act will ... fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise ... the issue is approached on the basis that ‘when there is a duty to take a precaution against damage occurring to others through the default of third parties ... breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm’ ( Sutherland Shire Council v Heyman (1985) 157 CLR 424, at 467 per Mason J)’.

31. Gaudron J continued her analysis at 421-2:

‘There are two aspects to the question whether performance of a duty would have averted the loss or injury suffered. The first is the general sufficiency of the duty to avert or prevent harm of the kind in issue. The second involves a consideration of what would or would not have happened in the particular circumstances of the case... it is not always necessary to consider the second aspect ... so far as general sufficiency is involved in the question of causation there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation. That is because a duty is imposed by the common law by reason that it is a precaution which a reasonable person ... would have taken to prevent a foreseeable risk of harm of the kind suffered. Thus questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as ‘reasonable’ unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence.’

32. This analysis has been applied in later cases. In Chappel v Hart (1998) 195 CLR 232, Gaudron J (238-9), McHugh J (247) and Gummow J (257) held that a breach of a duty to take specific precautions, followed by an accident of a kind that might thereby be caused, supported an inference that the breach caused the accident in the absence of some sufficient reason to the contrary. See also Naxakis v West General Hospital (1999) 197 CLR 269 at 278-9 and Rosenburg v Percival (2001) 205 CLR 434 at 452 per Gaudron J and at 460-1 per Gummow J."

38 Reliance was also placed on the following further paragraphs from his Honour’s judgment:

"41 If the Court declined to find causation in cases like this because of the difficulties of proof the employer’s duty to take additional security measures would lack effective content. The duty would not be enforceable because the employer could ignore it with impunity. See McGhee v National Coal Board [1973] 1 WLR 1 at 9 per Lord Simon of Glaisdale and at 12 per Lord Salmon. Compare Wilsher v Essex Area Health Authority [1988] APPLICANT 1074, 1090-1 per Lord Bridge.

42 The approach of Gaudron J and other High Court Judges, which has been referred to [pars 30-2], places an evidentiary onus on the party in breach of duty. The breach of duty has created difficulties of proof which would not exist if the duty had been performed. Evidentiary presumptions are available against wrongdoers for other legal purposes ( Armory v Delamirie (1722) 1 Stra 505 [93 ER 664] and Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 49) and I see no reason why such a presumption should not be available in cases such as the present. This provides a further basis for finding that the club’s breaches of duty caused or materially contributed to the respondent’s injury."

39 The appellant accepted that if the primary judge was satisfied that additional precautions could have been taken, she could only have found in favour of the respondent on the issue of causation if, based on the evidence, she was also satisfied that those precautions would not have acted in a fashion so as to have averted the subject assault. The following was then submitted:

“Surely, her Honour would have had to have had determined on the evidence that the implementation of such further and additional security precautions after a full assessment had been undertaken would not have prevented the injury”.

40 It was then submitted that her Honour had not dealt with why it was that a panic alarm would not have worked to avoid the assault or why, if the appellant’s cleaning area had been roped off or other barriers put in place, that would not have prevented the injury or why, if the lifts had been shut down and crowds from the club or the cinema redirected, that would also have not avoided the injury.

41 It is true that the primary judge has not overtly exposed her reasons for her conclusion that “the injury would have occurred in any event”. In my opinion there is therefore substance in the complaint that it is a conclusion without adequate reasons. In fairness to her Honour, there was evidence from Mr Jennings, for instance, that a reduction of risk by providing a panic or duress alarm to the appellant would have been unlikely, and from the video and evidence of Mr Jennings in re-examination, that the closing off of the lift to the second floor would not have assisted, as the assailant did not, in all probability, come from the club.

42 In some cases the failure of a trial judge to give reasons for an important finding will necessitate an order for a new trial. As Handley JA said in the Kingsgrove RSL case ([34]), typically this will occur when there are conflicts of evidence and findings on credit are required to explain and support the decision. Under s 75A of the Supreme Court Act this Court can re-hear the case, review the evidence, draw inferences and make findings of fact that provide the necessary reasons.

43 In my opinion, the primary judge has made all the necessary primary findings of fact. In those circumstances, I consider this is an appropriate case for the Court to make its own findings on causation.

44 As I have already observed, the primary judge found that the assault was sudden and without warning, the appellant realising in only the last few seconds that he was in danger. In these circumstances, it is clear that the provision to the appellant of a panic/duress alarm would not have averted the assault. Mr Jennings was of the view that in the particular circumstances such an alarm would have been of very little deterrent value and of only little use. As a matter of commonsense, I agree.

45 The appellant had no reason to have activated an alarm (if one had been available to him) when he stood at the top of the escalators as the assailant approached him. After all, he thought the assailant merely wanted to ask him something.

46 The failure to train the appellant in techniques of conflict management would also have been of no use, given that the appellant was unaware that any question of conflict had arisen between himself and the assailant. As to the closing off of the lift to the second floor, this would have made no difference as there was nothing to indicate that the assailant had entered the second floor via the lift system. In fact the video stills indicate to the contrary.

47 As to the provision of deterrent signage, there were security cameras which according to Mr Jennings were visible, but the circumstances made it highly unlikely that even if there had been some form of signage, it would have deterred the assailant when he reached the top of the escalators from assaulting the appellant.

48 A similar conclusion should be drawn when considering the provision of barriers, as cinema patrons descending to the second floor via the stairs at the western end of the building could only gain access to the escalators by taking the route which the assailant and his companion in fact took (as revealed in the video stills). It seems to me that the roping off of the area where the appellant was mopping would have been impractical.

49 It was forcefully submitted by the appellant in his oral argument that entry to the second floor and to the escalators should have been denied where the stairs at the western end of the building gave access to the 2nd floor. This would have forced cinema and other patrons to utilise only the stairs between the 1st and 3rd floors, bypassing the 2nd floor. It was said that this was the most effective security measure that could and should have been taken in the circumstances. However, its impact would have been to also deny cinema patrons access to the escalators between the 1st and 2nd floors. No evidence was led as to whether denying cinema patrons escalator access between the 1st and 2nd floors by confining them to the western stairs was either practical or reasonable and, in particular, as to whether it would have caused overcrowding of the stairs and/or the lift thus leading to safety issues.

50 Further, questions of inconvenience to elderly persons who were not particularly mobile would arise if they were forced to use the stairs and denied the use of the escalators, given that there are only two small lifts to otherwise accommodate such people.

51 A requirement to work in pairs wherever possible would not in the circumstances have deterred the assailant. As I have indicated, the appellant deliberately left the area where he was cleaning and walked some six to seven metres to the top of the escalators where the assailant met him. There is nothing to indicate that even if there had been a co-worker with him, that co-worker would have accompanied the appellant to the top of the escalators. The probabilities are that the co-worker would have continued his cleaning activities.

52 In these circumstances, I would accept the respondent’s submission that the assault on the appellant occurred so suddenly and unexpectedly that none of the additional precautions that have been identified would have prevented the assault from taking place. In my opinion, the evidence establishes that the additional precautions contemplated by the appellant would not, in the ordinary course of events, have averted the risk of a sudden and unexpected assault of the nature of that which occurred and in the location where it occurred.

53 For the foregoing reasons, I am of the opinion that the primary judge was correct in finding that the respondent’s breach of duty did not materially cause or contribute to the appellant’s injuries, with the consequence that the appeal should be dismissed with costs.

54 HODGSON JA: I agree with the orders proposed by Justice Tobias. However, I am of the view that the reasons of the primary judge were adequate, and that no error in her reasons has been demonstrated.

55 At Red Book page 195M the primary judge set out the security arrangements in place at the Mandarin Centre at the time of the assault on the appellant. At red book page 20U the primary judge set out the opinion of the respondent’s expert witness that the system in place was appropriate to the foreseeable risks, and she stated that she preferred this evidence to the evidence of the appellant’s expert witness. She gave reasons for doing so.

56 It was submitted that the respondent’s witness, Mr Jennings, had agreed in cross-examination that certain simple steps could have been taken to reduce the risks and that the primary judge should have come to a view different from his, using commonsense. However, in circumstances where the evidence of Mr Jennings was that, with the existing security arrangements in place, the risks were negligible, and where Mr Jennings did not resile from that opinion, or agree that steps to further reduce the risk were reasonably required, in my opinion the primary judge was entitled to accept his evidence fully and, in my opinion, her reasons for doing so were adequate.

57 In my opinion this sufficiently discloses the primary judge’s reasons for her conclusion that, even if the respondent had carried out a proper risk assessment, this would have found that the system in place was appropriate, so that failure to carry out the risk assessment did not cause the appellant’s injury.

58 It is in that sense, in my opinion, that the trial judge expressed the opinion that the assault would have occurred in any event. I would add that, if I were wrong in those views, I would agree with the other matters put by Justice Tobias.

59 SPIGELMAN CJ: I agree with Justice Tobias.

(Argument ensued as to costs).

60 In this matter the appellant has submitted, notwithstanding the dismissal of the appeal, a special order as to costs should be made. The submission is based on the proposition that, by majority the Court has upheld one of the appellant's arguments, namely, that her Honour’s reasons were not fully stated. Nevertheless, her Honour’s findings of primary fact were such as to lead to the conclusion, for the reasons given by Justice Tobias, that the appeal must be dismissed.

61 If the respondent had conceded in its submissions, which it did not do, the proposition that the reasons were defective, the result would still have been the same. There were no consequences of any significance that have occurred, by reason of the issue upon which the appellant has, in part, succeeded.

62 In those circumstances the normal order for costs should be made.

63 HODGSON JA: I agree.

64 TOBIAS JA: I agree.

**********

Last Modified: 11/10/2003