Proprietors of Strata Plan 17226 v Drakulic

[2002] NSWCA 381

Reported Decision: (2002) 55 NSWLR 659

New South Wales

Court of Appeal

CITATION:	Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381
FILE NUMBER(S):	CA 40481/01
HEARING DATE(S):	22 May 2002
JUDGMENT DATE:	27 November 2002
PARTIES :	Proprietors of Strata Plan 17226 (First Appellant) Wrasp Realty Pty Ltd t/as Solid Strata Plan Management (Second Appellant) Mira Drakulic (Respondent)
JUDGMENT OF:	Mason P at 1; Heydon JA at 10; Hodgson JA at 146

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7033/95
LOWER COURT JUDICIAL OFFICER :	Nash DCJ

COUNSEL:	Mr W P Kearns SC/Mr A G Jamieson (Appellants) Mr J D Hislop QC/Mr R K Weaver (Respondent)
SOLICITORS:	W R Ghioni (Appellants) Graham Jones (Respondent)
CATCHWORDS:	Tort - negligence - duty of care - existence - breach - personal injury - misfeasance - nonfeasance - plaintiff victim of crime - assault occurring on common property - application of principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001) 205 CLR 254 - D
LEGISLATION CITED:	Strata Titles Act 1973
CASES CITED:	Ann M v Pacific Plaza Shopping Centre 863 2d 207 (1993) Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Torts Rep 81-636 Betts v Whittingslowe (1945) 71 CLR 637 Bressington v Commissioner for Railways (New South Wales) (1947) 75 CLR 339 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Devonish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Dorset Yacht Co Ld v Home Office [1970] AC 1004 Frances T v Village Green Owners Association 723 P 2d 573 (1986) Holley v Mt Zion Apartments Inc 382 So 2d 98 (1980) Jones v Bartlett (2000) 205 CLR 166 Kline v 1500 Massachusetts Ave Apartment Corp 439 F 2d 477 (1970) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Nivens v Hoagy's Corner 943 P 2d 286 (1997) O'Hara v Western Seven Trees Corporation Intercoast Management 142 Cal Rptr 487 (1978) Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The "Wagon Mound") (No 2) [1967] 1 AC 617 Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998) Public Transport Corporation v Sartori [1997] 1 VR 168 Pyrenees Shire Council v Day (1998) 192 CLR 330 Smith v Leurs (1945) 70 CLR 256 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205 Sturbridge Partners Pty Ltd v Walker 482 SE 2d 339 (1997) Sullivan v Moody (2001) 183 ALR 404 Tame v New South Wales [2002] HCA 35 Tennants (Lancashire) Ltd v C S Wilson and Co Ltd [1917] AC 495 The Australian Builders' Labourers' Federated Union of Workers - Western Australia Branch v J-Corp Pty Ltd (1993) ATPR 41-245 W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	See paragraph 145

CA 40481/01
DC 7033/95

MASON P
HEYDON JA
HODGSON JA

27 November 2002

PROPRIETORS OF STRATA PLAN 17226 v DRAKULIC

Tort – negligence – duty of care – existence – breach – personal injury – misfeasance – nonfeasance – plaintiff victim of crime – assault occurring on common property – application of principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001) 205 CLR 254

The plaintiff was injured when she returned home from work at 2.45am on 9 September 1993 and was attacked by an intruder lurking in an entrance foyer used by the plaintiff to access her apartment. The foyer was common property owned by the defendant strata plan proprietors and was fitted with a door of lockable design. The plaintiff sued the proprietors in negligence seeking damages for personal injury. Evidence adduced at trial suggested that the assailant, who was never identified, had obtained access to the building because of the defective state of the entrance door lock. The claim was based on misfeasance and nonfeasance in relation to maintaining the repair of the door lock. At trial she succeeded. The defendants appealed as to liability and quantum.

(Heydon JA, Mason P and Hodgson JA agreeing), allowing the appeal,

As to foreseeability of injury to the plaintiff:

1. In view of past incidents and in view of the general risk of robbery late at night, there was a risk that an assault might occur. The risk was real and not far-fetched. Hence it is hard to avoid the conclusion that it was reasonably foreseeable. But while reasonable foreseeability is a necessary condition for liability in negligence, it is not sufficient. That is particularly so where the cause of injury is the criminal act of a third party: [61].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Sullivan v Moody (2001) 183 ALR 404, applied.

As to existence of a duty of care:

2. Leaving aside contractual cases, it was only in exceptional categories – employer/employee, school/pupil, bailor/bailee, parent and person whom the parent’s child might injure – that defendants owe a duty to plaintiffs to prevent injury by reason of the criminal conduct of third parties. The facts did not fall within any of these categories. Indeed, the position advanced by the plaintiff was inconsistent with many key elements in the majority reasoning in the Modbury case. That reasoning rested on: (a) the unpredictability, wantonness and randomness of criminal behaviour, and the corresponding difficulty of eliminating it or greatly reducing the risk of it; (b) the lack of knowledge which the occupier is likely to have about that behaviour; (c) the lack of control which occupiers have over criminal third parties, which stands in particular contrast to the control they have over the capacity of the physical condition of the premises to cause physical injury to visitors; (d) the irrationality of making a defendant liable for not preventing conduct which the efforts of society as a whole through the legislature, the police force and the criminal courts are directed to preventing; (e) the relatively minor role of civil defendants in contributing to the loss suffered by the plaintiffs at the hands of criminals; and (f) the highly exceptional character of those cases in which a duty of care to avoid harm from the criminal acts of third parties is recognised in earlier authority. All these bases pointed against the existence of a duty of care: [70], [72]-[73].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied.

3. Reliance was not a possible source of duty because the plaintiff did not rely on the defendants to ensure that the foyer door was locked. She knew it was not locked: [82].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 105 CLR 254, applied.

4. Assumption of responsibility was not a possible source of duty because the defendants did not assume any responsibility for keeping the door locked, and had in fact unlocked it, prompting the plaintiff to complain about the matter: [83]-[84].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied.

5. Special vulnerability, special knowledge and assumption of responsibility were not possible sources of duty because the defendants had no particular control over third parties who might commit crimes. They had no special knowledge about them. They did not assume any particular responsibility. The plaintiff had no special vulnerability within the building which exceeded her vulnerability just before crossing the outside boundary of the land on which it was built or just after crossing that boundary but before entering the front door of the building: [86].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied.

6. The present case did not fall within either of the two possible exceptions to the Modbury doctrine, based on (a) criminal conduct attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle so as to impose a duty to take reasonable steps to prevent it; or (b) a duty to control the criminal conduct of others where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. Nor did it warrant recognition of a duty of care on grounds of a special relationship or special circumstances.

a. Even if a high degree of foreseeability of harm would suffice for the recognition of a duty of care, the evidence here would not permit a conclusion that a test for such foreseeability was met: [92].

W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, considered.

b. Authorities supporting the existence of a duty to control the criminal conduct of others where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises did not point to any body of law which would make it right for the Court of Appeal to affirm this possible exception to the Modbury principle in a manner favourable to the interests of the plaintiff in this case. To do so would be to change the law, and the law at least in this particular field should only be changed by the High Court: [114]-[116].

Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Wormald v Robertson (1992) Aust Torts Reports 81-180; Public Transport Corporation v Sartori [1997] 1 VR 168; Guildford Rugby League Football and Recreational Club Ltd [2001] NSWCA 139; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, distinguished; South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205, considered.

c. It is plain that the relationship of unit owner and body corporate, and the relationship of unit owner and manager, are not relationships of the type recognised as “special” under the existing case law. If new categories of “special” relationship are to be created within which a defendant is to be liable for the criminal acts of third parties, the step is not merely factual. It would involve a matter of law – indeed a change in the law. A change in the law of that order of significance is not something which this Court should undertake. It is a matter for the High Court: [87], [89].

Pyrenees Shire Council v Day (1998) 192 CLR 330; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, considered.

Per Heydon JA, Hodgson JA agreeing:

7. Whether a duty of care was owed in relation to misfeasance was unnecessary to decide because the misfeasance case could be decided on causation grounds: [126].

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, applied; Pyrenees Shire Council v Day (1998) 192 CLR 330, considered; W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338, referred to.

As to causation:

8. On the misfeasance case it had not been demonstrated that any harm suffered by the plaintiff would have been averted by taking the measures said to be required: [130].

9. On the nonfeasance case, even if there were a duty to provide a more effective security system, failure to meet the possible requirements of that duty could not have caused the injury sued for: [131]-[143].

Betts v Whittingslowe (1945) 71 CLR 637, considered; Jones v Bartlett (2000) 205 CLR 166, referred to.

O R D E R S



1. The appeal is allowed.

2. The orders of the trial judge are set aside.

3. Judgment is entered for the appellants.

4. The respondent is to pay the appellants’ costs of the trial.

5. The respondent is to pay the appellants’ costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified.

CA 40481/01
DC 7033/95

MASON P
HEYDON JA
HODGSON JA

27 November 2002

PROPRIETORS OF STRATA PLAN 17226 v DRAKULIC

Judgment

1 MASON P: I agree with the orders proposed by Heydon JA whose reasons I have had the benefit of reading. Subject to what follows, I agree with his reasons.

2 I prefer not to base my conclusion upon a finding as to causation. My first reason is the difficulty of determining the extent to which Mr Islam’s evidence was accepted in light of the general acceptance of the plaintiff coupled with the failure to address the critical discrepancies between the plaintiff’s and Mr Islam’s evidence. Secondly, I am troubled about addressing the causation issue through the medium of asking, inter alia, whether the assailant might have got at the plaintiff by alternative means (such as waiting in the garden) if barred from entry into the vestibule. It is unclear to me whether that is a relevant inquiry to be made or whether the causation question should not remain focussed exclusively on the linkage between the actual assault and the defaults alleged against the defendants.

3 I base my decision upon absence of duty of care.

4 I am grateful to adopt Heydon JA’s exposition of the principles and the authorities.

5 For reasons more fully expounded by Heydon JA, there was no special relationship between the defendants and the plaintiff sufficient to trigger a duty of care that extended to taking safety measures to protect the plaintiff from the risks of injury at the hands of outside assailants. No contractual or other assumption of such responsibility had occurred. Foreseeability of the possibility of injury at the hands of a criminal assailant was not enough to trigger a duty of such scope. Nor was there special vulnerability or (known) reliance on the plaintiff’s part. The plaintiff knew that the foyer door was not locked. The fact that some steps in providing safety lighting had been taken did not mean that the defendants thereby placed themselves in a relationship generating the requisite special duty. It was neither reasonable nor just to place such a duty of care on the defendants’ shoulders.

6 In other words, the case falls within the general principles discussed in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. And it does not attract the possible exceptions discussed therein, relating to (1) “a high level of recurrent, predictable, criminal behaviour” (per Gleeson CJ at [30]. See also Hayne J at [117]. Cf Callinan J at [143], citing W D & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 at 359); and (2) to occupiers who fail to control access to or continued presence on the premises (per Hayne J at [117]). I agree with Heydon JA’s comments about these two possibilities and their inapplicability to the facts of the present case.

7 It remains for me to address the argument suggesting that the Modbury principles do not apply to the defendants’ “misfeasance”, using that term in the sense discussed by Heydon JA. In my view, the present case does not fall within any such qualification. There was no contractual or other assumption of binding responsibility on the part of the defendants that the earlier locking system would be kept in place. The locking system was withdrawn, either with or without the formal authority of the body corporate, but in circumstances which put the plaintiff fully on notice.

8 If and to the extent that there was some irregularity or lack of authority in the dealings of the body corporate and its agents regarding the lock, this cannot be invoked in the realm of duty of care. Whether the lock should or should not be disarmed was a matter of controversy on which different views were held by various residents. “Cost” factors played their part, in two related senses. First, to some residents the burden of having to come out from the units to open the front door of the vestibule outweighed the perceived benefit of the added protection of keeping it locked. Second, it would be costly to all to have to install an intercom system together with a facility for residents to cause the outer door to be opened to admit intended guests.

9 In these respects, the position was similar to that discussed in WD & HO Wills, where the shared cost of maintaining security at the outer perimeter of the rail terminal was one which some occupiers were not prepared to pay. Earlier security arrangements were therefore deliberately withdrawn by the State Rail Authority, with the full knowledge of the occupants, some of whom (like the plaintiff) were unhappy and protested. This left the several occupants to make their own arrangements for internal security. Such action, deliberate though it was on the part of the State Rail Authority, did not mean that an extended duty of care sprang up (see at 355. See also Modbury at 302 [147] per Callinan J.)

10 HEYDON JA: This is an appeal from a judgment and verdict for $298,349 given by Nash DCJ on 15 June 2001 in favour of the plaintiff. He also ordered the defendants to pay the plaintiff’s costs of the action (including costs on an indemnity basis from 31 March 2000). Judgment was reserved after a trial on 1-4 May 2001. Initially on 7 June a long and careful oral judgment was delivered and orders were pronounced on that day. The orders were revised on 15 June 2001.

11 The defendants appeal on both liability and damages.

Background

12 From 1983, the plaintiff owned Unit 1 in a building, 105 High Street, Mascot. That building comprised fifteen units on three floors above garages at ground level. The first defendant was the body corporate owning the building and its members were the proprietors of the units. The second defendant was the manager of the building. At all material times the principal of the second defendant was Mr Warren Platt, its only other employee being his step-daughter, Mrs Beverly McKeown.

13 The trial judge described the building thus.

“The building comprised fifteen units on three floors, there being a number of garages at ground level off a common driveway between it and 103 High Street. There were also some open car parking spaces at the rear of the building, one of which was available for and used by the plaintiff.
The building had two entrances from doors into foyers and upstairs and landings to the units. The first entry from the street, off the driveway, was to units 1 to 6 comprising three floors with two units per floor and the second entry was to units 7 to 15. There was no way a person could get from inside the building from units 1 to 6 to units 7 to 15 and vice versa.”

14 The trial judge made the following findings about the entry doors to the building.

“The building was constructed somewhere about the late 1950s to mid-1960s. When constructed, the entry doors were lockable from the inside by pressing a knob or button on a circular handle which contained a lock. Egress was obtained by turning the circular knob handle which, if it was locked, would automatically unlock the door which would be pulled open. If it was then closed without touching the knob in the middle of the handle it would not lock. If that knob was pressed before it was closed the door was locked on closing. To gain entry, if the door was not locked, the handle merely had to be turned and the door pushed open. If it was locked a key had to be used. After gaining entry the door could be locked by pressing the knob in the handle. If this was not done the door remained unlocked. Consequently, the only time a key was needed to open the door was to gain entry if it had been locked from inside by pressing the knob on the handle; this being either on entry to or egress from the building.
I infer that, when the units were originally sold, the owner of each unit was provided with at least one key to the door giving entry to the foyer for that particular unit and, on leasing or re-sale of any unit, it was expected the key or keys would be provided to the tenant or purchaser in the same way as a key to the particular unit itself would be provided. On her purchase of unit 1 the plaintiff was provided with at least one key to the foyer door which she still has.”

15 On 3 May 1993 Mr Platt requested a locksmith to disarm the locking mechanisms. On 6 May 1993 this was done by removing the knobs from the handles and the internal locking mechanisms.

16 From 1987 the plaintiff was employed in a bookbinding business. She worked in the afternoon shift and often did overtime. On those nights she habitually returned as late as 2.30-2.45am. On 9 September 1993 at 2.45am the plaintiff returned from work, parked her car, came through the front door and was attacked by a very tall and strong male intruder with considerable brutality. He came down the stairs as she began to go up them. He was wearing a dark stocking over his face. He had a cloth in his hand smelling of “something similar to methylated spirits”, which the plaintiff also described as “some rag with some poison”, and which police documents suggest was ammonia. He put the rag on her mouth and this made her dizzy. He had a large knife with which he threatened her and which cut her hand in the course of the struggle. He robbed her of her handbag and injured her badly.

The trial judge’s reasoning

17 The trial judge considered the evidence in detail. He stated that the plaintiff was a credible and reliable witness, though mistaken on some aspects; that Mr Platt was not generally credible or reliable; and that Mr Islam, the occupier of Unit 2, was credible but in some respects unreliable. He then made certain findings of fact about hotly contested questions.

18 The trial judge found that the plaintiff telephoned the office of the second defendant at least a few times between May and September 1993 to complain about the fact, as she perceived it, that the lock was broken and to seek to have it fixed; that Mrs McKeown told her that Mr Platt was unavailable and that she would give him the message; that Mrs McKeown gave the messages to Mr Platt; but that he did not contact the plaintiff or do anything about the complaints before the plaintiff was assaulted. The trial judge said that the plaintiff saw Mr Platt and asked him to send someone to fix the door, and that he said they were going to make it a security door: but in fact this incident took place a couple of months after the attack, not before it.

19 The trial judge also found that there was a notice near the entry door to the plaintiff’s part of the building purporting to be from Mr Platt stating that the door was to be locked from 9pm.

20 The trial judge found that the entry door was probably locked on most nights before 6 May 1993, although on occasions it probably was not. The accuracy of this important finding was challenged by the defendants in a significant way.

21 Finally, the trial judge found that no meeting of the body corporate or its executive committee ever took place at which a decision to disarm the lock was made. The decision had been made by Mr Platt and Mr Cavar, the occupant of Unit 5, who had complained to Mr Platt that the main entrance door lock was defective in that on occasion it stuck and would not turn, thus preventing entry.

22 The trial judge then set out what he called “important facts”.

“At all times prior to 6 May 1993 the building was what can properly be described as a ‘security building’ because the entry door, for which all six occupiers of the relevant part of the building could have been provided with keys and for which the plaintiff had and used keys, was lockable. Admittedly, if it was locked all the time, this would cause some inconvenience for some of the occupants who had visitors because there was no direct contact available from outside the building to the various units. This, however, could have been eliminated completely, at reasonable expense, by the installation of a radio-controlled chimes system to each unit where the cost for chimes locks and keys was in the vicinity of four hundred dollars for those six units.
At all relevant times this system was known to Platt who referred to it at the AGM of the Body Corporate held on 21 September 1993; that is only twelve days after this assault on the plaintiff and which caused Platt to raise it at that meeting. A number (not known on the evidence) of the proprietors of units and Platt, the one who managed the building, did not have a key to the entry door. However, all of them should have and this should have been insisted upon by the first and second defendants.
On 6 May 1993, without authorisation of a general meeting of the Body Corporate or its executive committee, but by arrangement between Cavar, the proprietor of unit 5 on the top floor of the building, and Platt, who contacted the locksmith, the lock to the entry door was disarmed so that it was impossible for it to be locked. A number (unknown) of proprietors were apparently not unduly concerned about intruders entering the building through an unlocked door, probably because they felt secure in their units and did not give thought to what could have happened as a result of the entry door being unlocked; that is people gaining entry to the building and knocking on unit doors to see if anyone was home or with a person such as the one who assaulted the plaintiff, if the door to a unit happened to be answered, forcing his way in and the consequences of course could be grave for any occupant.
The assault upon the plaintiff occurred inside the building. It could not have happened if the entry door had been locked and would probably not have happened if, as it would probably have been prior to 6 May 1993, the door had been capable of being locked and particularly after 9pm in accordance with the notice near the door. It also could not have happened if the chimes system had been installed; even if only as a cheap temporary measure before an intercom system as was later installed.
I am convinced that the lock to the entry door ought not to have been disarmed and rendered useless unless a reasonably safe alternative system such as the chimes or intercom system was installed at the time. I am also convinced that, as later happened, any alteration to the building, especially affecting security to the occupants and their guests, should be an agenda matter on a notice of the meeting so that all unit proprietors, or their proxies, who are interested in that particular item, can take part in discussions and any decision relating thereto and the defendants, that is the Body Corporate and manager, would only act on a resolution of such a meeting.
The disarming of the lock to the entry door was such a matter and ought not to have happened without such consideration and decision. It was not in the category of urgent repair or maintenance within the discretion of the manager. It having happened, urgent attention should have been given to rectifying that situation, particularly after receiving complaints from the plaintiff about it. These complaints ought not to have been ignored as they were, no doubt because Platt realised he should not have arranged for the lock to be disarmed and hoped nothing, such as the assault on the plaintiff or any vandalism to the common property inside the entry door, would happen.”

23 The trial judge then analysed the judgments in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. The first plaintiff in that case was the employee-manager of a video shop conducted by a tenant in a shopping centre owned by the defendant. The second was his wife. On leaving at about 10.30pm, the first plaintiff was attacked by three men in the shopping centre car park, the lights to which had been turned out no later than 10pm. The majority of the High Court held that there was in general no duty on occupiers to prevent harm to lawful visitors from criminals unless there was some special relationship; that there was no such relationship in this case; that there was no sufficient forewarning of the attack being likely; and that the failure to have the lights on had not caused loss. In the course of the trial judge’s analysis of the Modbury case, he indicated that the causation difficulties in that case did not arise in this, because he considered that if the entry door had been locked the plaintiff would not have been injured. He also said, after drawing attention to the stress in that case on control as a factor leading to liability, that a locked entry door would have enabled control of the assailant.

24 The trial judge then expressed his conclusions as follows.

“Home unit occupation has been an integral part of living in our society for many years. Indeed, this building was probably built about forty years ago. For a long time it has been common knowledge that a desirable feature of home unit buildings is for access to them to be secure and this has been virtually taken for granted. The reason is obvious. There has also, for a long time unfortunately, been in our community a real fear that intruders, usually bent on some form of criminal activity including assaults, robberies, break enter and steal and the like upon occupiers and/or their guests and/or their property could gain access to the common property of the building and also even one or more of the units by forcing open the door to such unit or, as I have previously mentioned, merely by knocking on the door or ringing the door bell and, when it is opened, gaining entry to it. It is also well known that mere vandalism to parts of the common property can occur if such entry is available generally.
Consequently, there can be no doubt that, if an intruder can gain entry to a block of home units such as the building in this case merely by turning the handle on the door and pushing it open, there is a foreseeable risk that, if the occasion arose, such an intruder would assault a person such as the plaintiff who is lawfully on the common property.
Having regard to all the relevant principles I am satisfied, as owner and manager of the building, each of the defendants owed a duty of care to the plaintiff. To comply with this duty they must avoid acts and/or omissions which they can reasonably foresee would be likely to cause injury to the plaintiff. In the circumstances of this case, having regard to the special relationship which existed between the plaintiff and the defendants – that is as a unit proprietor and occupier and the owner and manager of the common property of the building – the law does impose on the defendants a duty to prevent harm to the plaintiffs from the criminal conduct of a third party, particularly within the common property of the building where a risk of such conduct is reasonably foreseeable.
The defendants did give consideration to and acted upon their duty to the occupiers as far as they reasonably could by installing Vandalites and ensuring that the outside lighting was in reasonable condition. This would not only assist the occupiers in seeing any danger, such as a defect in the pathway or driveway or if there was some obstruction such as a ball left by a child which could result in injury to any of them and could also deter unauthorised persons from trespassing thereon or waiting outside the building to attack someone such as the plaintiff on returning to it from work or an outing, particularly at night. But the defendants did not give proper or any consideration, other than of convenience, to the risk of an intruder unlawfully entering the building, as happened here, and attacking an occupant lawfully returning to his or her unit or indeed, any of the guests of such an occupant.
If the criminal conduct had occurred outside the building there would probably be no claim against the defendant for such an assault. This may also be the case if there had been no means of locking the entry door at any time and no suggestion that there should have been, but that is not the situation here. The act of arranging for the disarming of the lock to the entry door of the building was no doubt a matter of convenience to some of the occupiers, but it also made them all, including the plaintiff, vulnerable to the attack which did occur to her. The mere fact that there is no evidence of such an assault occurring previously is irrelevant. There should have been no such assault in the first instance and, if the entry door was locked – as it probably would have been – the assault on the plaintiff would not have happened.
The plain fact is that between 6 May 1993 and 9 September 1993 the door could not be locked because of the act of the defendants in immobilising the locking device on the entry door in circumstances where, prior to that, there was a system in place that could, and in fact at times did, prevent entry of persons, especially unauthorised persons, into the building. The entry of the intruder and the assault on the plaintiff was the very kind of occurrence which could happen by reason of the acts of the defendant. The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chime system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her. This constituted a breach by the defendants of its duty of care to the plaintiff, allowed the intruder to gain entry to the stairwell of the common property of the building and caused the intruder to gain access to the building which he could not have done if the defendants had not breached their duty of care to the plaintiff.
In the circumstances the defendants were negligent as alleged and there will be a verdict for the plaintiff against them.”

25 In its references to a “special relationship” and to the irrelevance of there having been no evidence of any earlier assaults, the passage is plainly written with the reasoning in Modbury Triangle Shopping Centre Pty Ltd v Anzil in mind.

Preliminary analysis of the trial judge’s reasoning

26 The plaintiff’s case was put in two ways in the Statement of Claim. The first way concerned various failures to act. The second way concerned a wrongful positive act.

27 The alleged failures to act were described thus:

“(a) Failed to take any or any adequate or effective action or precaution to ensure that the foyer door was locked.
(b) Having been made aware, prior to the time and date of the attack, of the requirement for an effective lock to be placed on the foyer door failed to ensure that such a lock was so placed.
(d) Failed to take all reasonable measures to ensure the safety of the Plaintiff.
(e) Failed to take all reasonable measures to avoid damage to the Plaintiff.
(g) Failed to repair or adequately repair the common property of the Proprietor’s building.
(h) Failed to maintain or adequately maintain the common property of the Proprietor’s building.
(i) Failed to protect the Plaintiff by ensuring that the entrance door of the Proprietor’s building was secure and relevantly locked.”

These allegations are wide enough to encompass contentions that the defendant had a duty to devise and install a better system of security than had existed either before or after May 1993.

28 The wrongful act relied on was described thus:

“(c) Caused and/or permitted to cause the lock mechanism on the foyer door to be inoperative by reason of the removal of a locking pin device which rendered the lock mechanism ineffective and non-operational.”

That, in focussing on a single positive act, naturally raises causation inquiries as to whether the retention of a lock mechanism in place would have saved the plaintiff from injury.

29 These two different ways in which the plaintiff’s case was pleaded correspond with two separate strands in the trial judge’s reasoning.

30 At times the trial judge proceeded on the basis that the case before him should be treated as a case like the Modbury case, namely a case posing the issue: “Are the defendants liable for failing to install a satisfactory security system after 6 May 1993 and before 9 September 1993?” It is convenient to call this the “non feasance” basis.

31 At other times the trial judge proceeded on the basis that the case was different from the Modbury case, and was a case posing the issue: “Are the defendants liable for interfering on 6 May 1993 with a security system which was satisfactory up to that date?” It is convenient to call this the “misfeasance” basis.

32 The indications that the trial judge was proceeding on the non feasance basis include passages in which he describes the relationship between the plaintiff and the defendants as “special” in the Modbury sense of “special relationship”. They also include the trial judge’s quotation of passages in which Hayne J posed and left open the question whether a failure to control entry by criminals onto premises creates liability: the trial judge answered that question affirmatively.

33 The indications that the trial judge was proceeding on the misfeasance basis include passages such as the following:

“… The lock to the entry door ought not to have been disarmed and rendered useless unless a reasonably safe alternative system such as the chimes or intercom system was installed at the time …. .
The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chimes system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her… .
… if there had been no lock at any time on the entry door handle and no suggestion that there should have been, there probably would have been no liability in the present case … .
[There may have been no claim against the defendants] if there had been no means of locking the entry door at any time and no suggestion that there should have been, but that is not the situation here. …
… The immobilisation of the lock and/or the failure to put in place a safe alternative system, such as the chimes system which could be cheaply obtained, left the occupants, including the plaintiff and their guests, vulnerable to what in fact happened to her.”

34 The third and fourth of these passages, in particular, contradict the non feasance case, and suggest that the heart of the trial judge’s reasoning turns on a narrow point – namely, the proposition that if there had never been a locking system the defendants would not have been liable, but that to interfere with a workable locking system without providing a substitute generated liability. The trial judge himself does not appear to have been conscious of the two possible paths to liability or of their tendency, as expounded by him, to conflict.

The defendants’ arguments to this Court in outline

35 It is convenient to take the defendants’ submissions in a different order from that in which they were advanced.

36 First, the defendants submitted that “the unpredictable criminal behaviour of the intruder” was not reasonably foreseeable.

37 Secondly, the defendants submitted that even if the intruder’s behaviour was reasonably foreseeable, there was no duty of care owed to the plaintiff in relation to it, because the case did not fall within the limited category of circumstances in which the law of negligence imposed liability for omissions to prevent harm caused by third parties. There had been no “high level of recurrent, predictable criminal behaviour” in the language of Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [33]. In that case, there had been a break in to a restaurant near the car park, two attempts to break into an automatic teller machine and the break in of the window of a car parked in the car park. There was no equivalent in the present case, apart from evidence of two or perhaps more break ins from the plaintiff’s balcony into her unit: she was vague as to the precise number. Though there had been break ins, there had been nothing to put the defendants on notice of any criminal conduct in the common areas. While the trial judge appeared to infer that the defendants had assumed control for the safety of occupants and their visitors by reason of the fact that until 6 May 1993 there had been a locked door (since he assumed that his conclusions would have been different if there had never been a lock), and by reason of the fact that on his characterisation, the building was a “security building”, that inference was unsound. Whatever the position had been soon after the building was constructed, at no relevant time had the door been kept securely locked, and no relevant person ever regarded the block as a security block.

38 Thirdly, even if there was a duty of care, it had been discharged by measures short of locking the premises and providing security intercoms, such as external lighting.

39 Fourthly, even if there had been a breach of a duty of care, it was not causative of the plaintiff’s injuries. The only evidence was that when the plaintiff entered the building the intruder was on the stairs above her coming down. The intruder, seeking to avoid being seen in the hallway, may have gained entry by other means, such as an unlocked window or a balcony, as intruders had before. Even if the door had been locked, the lock could have been picked, or the door forced open in some way, or the door could have been left open by an occupant stepping outside for a short time, or the door could have been left ajar so that a lawful visitor might gain entry, or the assailant could have walked in behind an occupier who had opened the door. If the door were locked permanently as the trial judge said it should have been, that fact would become known to any would-be assailant, who in consequence would either take one of the above steps to gain entry or would attack victims as they approached the door from the driveway. If the duty was as high as the plaintiff said, it could only be met by the provision of a fulltime security officer at the door at all times, and this technique had not been investigated at the trial.

The plaintiff’s arguments to this Court in outline

40 The plaintiff’s written submissions did not advance independent arguments for the dismissal of the appeal. Instead they relied on the trial judge’s reasoning, relevant parts of which may be set out in the following order.

41 First, the risk of the criminal conduct of third parties within the common property was reasonably foreseeable since they could gain entry merely by turning the handle of the door and pushing it open.

42 Secondly, “having regard to the special relationship which existed between the plaintiff and the defendants – that is as a unit proprietor and occupier and the owner and manager of the common property of the building – the law does impose on the defendants a duty to prevent harm to the plaintiff from the criminal conduct of a third party.” In that regard the plaintiff relied on the trial judge’s conclusion that “The building can properly be described as a ‘security building’ because the entry door, for which all six occupiers of the relevant part of the building could have been provided with keys and [for] which the respondent had and used keys was lockable [up to May 1993] … .”

43 Thirdly, the duty to prevent harm was breached by the disarming of the lock, since it created an increased risk of unauthorised entry. That act was not consented to by the members of the first defendant. It should not have been carried out unless a reasonably alternative safe system such as chimes or an intercom system was installed at the same time.

44 Fourthly, the plaintiff’s injury was caused by the breach because a locked door is a line of resistance to an intruder, the disarming of the lock created an increased risk of unauthorised entry, the assault would not have happened if the door had been locked and probably would not have happened if it had been capable of being locked, and the illegal entry followed by the assault on the plaintiff was the very kind of occurrence which could happen by reason of the defendants’ acts.

45 The plaintiff concluded:

“The respondent submits that his Honour’s findings and conclusions were open to him on the evidence. There was a clear breach of duty. As Dixon J pointed out in Betts v Whittingslowe (1945) 71 CLR 637 at 649:
‘breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach’.”


The defendants in effect retorted that there were “sufficient” reasons to the contrary to rebut the allegation of causation.

Preliminary factual disputes

46 Before turning to the legal arguments for the parties, it is convenient to deal with various factual controversies raised in the appeal.

How often did the entry door lock at night before it was disarmed?

47 The trial judge said:

“On all the evidence I find it was probably locked on most nights although on occasions it probably was not. Any occupant returning after 9pm would probably have locked it but may not. For a long time after 6 May 1993 it could not be locked and this could lead anyone to forget that there were many times before then that it was locked.”

A related finding appeared later:

“The plain fact is that between 6 May 1993 and 9 September 1993 the door could not be locked because of the act of the defendants in immobilising the locking device on the entry door in circumstances where, prior to that, there was a system in place that could, and in fact at times did, prevent entry of persons, especially unauthorised persons, into the building.”

The trial judge also said:

“if the entry door, as it was, was capable of being locked and if it was locked, as it probably would have been, the crime would not have been committed.”

48 The defendants submitted that “a more accurate finding would have been that the locking mechanism before May 1993 was on some nights effective and on some nights left unlocked.” They then submitted that it could not be said that the door probably would have been locked on 9 September had it not been disarmed on 6 May. The submission was made for the following reasons.

(a) In chief Mr Platt said that before May 1993 he went to the premises at least five times and could get access even though he did not have a key. While the trial judge was critical of Mr Platt’s evidence generally, he did not specifically reject that evidence.

(b) Mr Islam, an occupant of a unit in the building, said in chief that he had no key and never locked the door. He never observed any occupant to be using a key. He had moved through the door without impediment. In about one week in four he would arrive at the units at 11pm or later and obtain access without a key. The trial judge said he lacked reliability in minor respects, but did not specifically criticise that part of his evidence.

(c) While the plaintiff always used her key, it would not have been possible for her to detect whether or not the door was in fact locked.

49 Counsel for the plaintiff submitted that Mr Platt and Mr Islam had not been believed. He submitted that the plaintiff unquestionably had a key and unquestionably used it. Further, once the locking mechanism had been deactivated, she complained about it, thinking it was broken. Hence it could be inferred that her usage of the key revealed that the door was normally locked.

50 What is to be made of Mr Platt’s evidence? He adhered in cross-examination to his examination-in-chief and indeed said “On the occasions that I visited the building frequently … . Yes, frequently, the door was never locked and I was never requested for a key by the owners.” Under the heading “Undisputed Facts” the trial judge said:

“Strange as it may seem Platt did not have a key to the entry door. The entry door was not always locked but, particularly at night, it was at least sometimes locked. To get keys cut cost no more than five dollars each.”

Under the same heading the trial judge said:

“He agreed it was obvious from Cavar’s complaints that the entry door had been locked, at least during the night, prior to 6 May 1993. He did not know if the occupants had a key or keys to the entry door prior to May 1993 but his belief was that there were no keys to this particular lock held by any of the occupants.”

It does not seem easy to ignore this evidence, but perhaps counsel for the plaintiff was correct in saying it was rejected by reason of the following words of the trial judge:

“I find that Platt was not generally credible or reliable. His evidence was, in many aspects, clearly wrong particularly when compared with objective documentary material. As I have said, he gave his evidence more in the nature of an advocate for the defendants and tailored it to endeavour to support their case and to discredit the plaintiff’s evidence.”

Let Mr Platt, then, whose position was in various respects a difficult one, be put on one side.

51 Let it also be assumed that the plaintiff did believe the door was locked on many occasions and indeed that it was. There can be no doubt that it was if only because Mr Cavar complained about it.

52 It is not easy to put aside Mr Islam’s evidence. Not only was it very strong in chief, but it remained so in cross-examination. One passage is as follows:

“Q. Well you didn’t have any problems during the period that the lock worked properly did you?
A. There wasn’t any lock.
…
Q. And from time to time the front door was locked up until about 6 May 1993, is that right?
A. When I, in – when I was in a unit, when I moved in, I didn’t have any key for the lock, I didn’t have to open any, any time to get in.
Q. We’ll come to that. But up until 6 May 1993, from time to time the front door was locked wasn’t it?
A. That’s what I’m saying like, when I moved in I didn’t --
HIS HONOUR: Q. No, you’re not being asked that, whether or not you had a key, were there occasions on which the front door was locked?
A. I don’t remember.
DUPREE: Q. You don’t remember?
A. No.
Q. But it’s possible from time to time, up until 6 May 1993, from the time you moved in, it’s possible that from time to time the front door was locked?
OBJECTION
A. I haven’t seen any, any time.”

53 Another passage was:

“Q. In 105, you purchased a unit?
A. Right.
Q. And when you bought your unit you were given a number of keys, is that right?
A. Yeah.
Q. And how many keys were you given?
A. I don’t remember how many keys.
Q. A number was it?
A. A number of keys, yeah.
Q. And it may well be that one of those keys fitted the front door?
OBJECTION. QUESTION WITHDRAWN.
Q. Is it possible that one of those keys was a key to the front door?
OBJECTION. QUESTION PRESSED. QUESTION ALLOWED.
A. We never needed a key for the front door. Only one abnormal key was there, I remember that was after the outside door there was a storeroom, big storeroom, there was a key for that, I remember because it’s a big room and later Solid Strata took that key from me and other people to make that area as a meeting place.
Q. But when you purchased the property you were given a number of keys?
A. Yes.
Q. Is that right?
A. Yes.
Q. And is it possible that one of those keys that you were given was a key to the front door?
A. Of course it might [be] possible, but I never, I never had to open the door with the key or anything.
Q. And it’s quite clear isn’t it, in your mind, that there was a locking device on that front door from the time when you moved in to at least 6 May 1993?
A. Whether there is a locking device or not, I don’t remember, because never needed.
Q. Just have a look at photo 10 in exhibit C?
A. Yes, but I never needed it, that’s why I didn’t notice.
Q. You see that is photo 10 in exhibit C – just have a look on the back of it Mr Islam?
A. Yeah. You’re talking about the knob?
HIS HONOUR: Yes that’s what he’s talking about.
WITNESS: Or this top, the top lock.
HIS HONOUR: Q. Show me?
A. There’s a lock.
Q. He’s talking about the bottom one?
A. The bottom one?
Q. The top one’s the new one isn’t it?
A. Yeah.
Q. The old one is the bottom one?
A. Yeah, the bottom one looks like a key slot there, yeah.
DUPREE: Q. And that key slot was there from the time when you moved in throughout the period to when you moved out, that’s right isn’t it?
A. Now I can notice the thing, but I never, I never had to open with the key.”

54 The trial judge said of Mr Islam:

“Generally speaking Islam was a credible witness but was lacking in reliability on some aspects which I consider he regarded as minor, no doubt because he was endeavouring to recall matters which did not really concern him, at short notice, from a long time previously. However he did demonstrate a recollection of some matters which were discussed at meetings attended by him but did not give specific details of any such discussions.”

55 It is difficult to believe that when the trial judge said that, he was treating as a “minor” matter the question whether Mr Islam could gain access without a key. It was potentially a major matter. After the trial judge made the finding that the entry door was probably locked on most nights, he said that for a long time after 6 May 1993 it could not be locked “and this could lead anyone to forget that there were many times before then that it was locked”. But it is difficult to believe this was an oblique rejection of Mr Islam’s evidence about his ability to enter without a key, particularly after 11pm a quarter of the time. If Mr Islam’s evidence on a potentially major matter was to be rejected, one would have expected this to have been done specifically, and with reasons. Further, earlier in the reasons for judgment, under the heading “Undisputed Facts”, the trial judge said:

“Not all occupants of the building had front door keys. Indeed Mr Islam, whose family comprised himself, his wife and two children, did not use a key to the front door and no-one complained to him about not having a key. He occupied unit 2, on the same floor as the plaintiff’s unit, from about June or July 1992 until about 1997. Islam worked during the relevant period and occasionally on late shift, about quarter of the time, he returned home about 11pm.”

Further, although Mr Islam was cross-examined about his use of a key, he was not cross-examined about having come home around 11pm one quarter of the time. It was perhaps for that reason that the trial judge treated Mr Islam’s evidence about never using a key and about gaining entry without it at 11pm a quarter of the time as establishing “Undisputed Facts”. In short, it is not possible to regard the trial judge’s findings about the frequency with which the door was left unlocked as credit-based in a manner preventing this Court from reaching conclusions of its own on the strength of the underlying evidence.

56 On balance the defendants are correct in contending that Mr Islam’s evidence cast great doubt on the trial judge’s finding that the door “was probably locked on most nights although on occasions it probably was not”. The frequency of its not being locked appears to have been much greater than the trial judge found. It was often not locked.

Was the building a “security” building?

57 The trial judge characterised the building as a “security building”. The defendants submitted that it was not, or if it was it was only so in the limited sense that its door had a locking mechanism on its knob. This point was said to go only to the question whether the existence of a “security building” founded some expectation that security might be maintained. The point is of no significance. The trial judge indicated the sense in which he used the expression: “The entry door, for which all six occupiers of the relevant part of the building could have been provided with keys and for which the plaintiff had and used keys, was lockable.” The term itself was not decisive in relation to any material step in the trial judge’s reasoning.

Modes of entry

58 The defendants criticised the following statement of the trial judge:

“The assault upon the plaintiff occurred inside the building. It could not have happened if the entry door had been locked and would probably not have happened if, as it would probably have been prior to 6 May 1993, the door had been capable of being locked and particularly after 9pm in accordance with the notice near the door. It also could not have happened if the chimes system had been installed; even if only as a cheap temporary measure before an intercom system as was later installed.”

59 The defendants said the passage contained the following errors. Their criticisms are in similar vein to their causation arguments.

(a) It assumed that the front door was the only possible point of entry, whereas there had earlier been two and possibly more entries through the plaintiff’s balcony: her windows were barred but her balcony was not, and the intruders broke through the balcony door. Once an intruder got into a unit through a balcony, he could leave the unit and enter the hallway: there was no evidence that the units had deadlocks.

(b) The passage assumed that the person who attacked the plaintiff could not have entered via the front door with, or immediately following, another entrant even if the door had been locked.

(c) The passage assumed that the person who attacked the plaintiff was already in the building, in a unit or hidden elsewhere, when she entered. A masked armed bandit prepared to inflict the injuries on the plaintiff which the assailant had inflicted was not a person behaving according to normal standards of behaviour, and may have taken special steps to become familiar with the plaintiff’s movements in coming home at 2 or 2.30am to an empty unit accessible from the street.

(d) The passage, in using the word “probably”, failed to make allowance for the occasions when the door was unlocked – which it always was at 11pm on the twenty-five percent of occasions when Mr Islam tested the point, and hence which indicated that it was unlocked more often than not.

(e) The passage, in referring to a chimes system, did not make it plain what was meant, whether a chimes system was to operate in conjunction with the locked door, and how a chimes system could overcome criminals who gave some apparently plausible reason why the door should be open (for example that they were from the police, or were tradesmen, or were delivering groceries).

60 The difficulty with several of these criticisms is that they have to be applied to persons who obtained or wished to obtain illicit entry at 2am and in that context lack realism. Further, to some degree they are far-fetched. The actual slackness in the way the door was left unlocked before May 1993 remains a potentially important point.

Was the assault reasonably foreseeable?

61 In view of past incidents and in view of the general risk of robbery late at night, there was a risk that an assault might occur. The risk was real and not far-fetched. Hence it is hard to avoid the conclusion that it was reasonably foreseeable. But while reasonable foreseeability is a necessary condition for liability in negligence, it is not sufficient: Sullivan v Moody (2001) 183 ALR 404. That is particularly so where the cause of injury is the criminal act of a third party: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [34] note 21, [35] and [143].

Did the defendants owe the plaintiff a duty of care?

62 The defendants submitted that, leaving aside contractual cases, it was only in exceptional categories – employer/employee, school/pupil, bailor/bailee, parent and person whom the parent’s child might injure – that defendants owe a duty to plaintiffs to prevent injury by reason of the criminal conduct of third parties; that the present facts did not fall within any of these categories; and that no new exceptional category should be created to cover the present facts. The relationship of occupier and lawful entrant alone did not suffice. Nor did the relationship between the owner of the home unit on the one hand and the body corporate or the building manager on the other. Whatever might be the position if the locking system had been secretly deactivated, in fact all the unit holders knew it had been deactivated or was not working months before the assault, and the plaintiff had complained of this. The defendants criticised the trial judge for never analysing the issue of whether a relevant duty existed.

142 Further, if there was a duty to have carried out a survey of security measures resulting in the maintenance of a locked door together with chimes or an intercom, the duty would probably extend more widely. See Jones v Bartlett (2000) 205 CLR 166 at [15] and [19]. The duty of consideration and the survey of problems would include a search for other reasonably foreseeable risks of harm caused by criminals intruding into the building or criminals attacking persons near the building. Indeed, the trial judge appeared to accept that the duty extended as far as criminals operating near the building, because of his acceptance that the relevant duty was fulfilled by installing Vandalites and maintaining outside lighting. That appears to be why he said that if the criminal conduct had occurred outside the building there would probably be no claim against the defendants. That the duty of consideration extends to the position of the guests of occupiers outside the building as well as occupiers flows from the trial judge’s application of the duty to the guests of occupiers inside the building.

143 But why should the duty of consideration and expert survey stop there? If the defendants owed a duty of care to persons in the common areas who might be injured by assailants coming through the front door, why is there not a duty owed to persons in those areas who might be injured by assailants gaining entry through the units? The duty of consideration and expert survey would thus extend to an examination of windows, balconies, the doors to units, the area outside the front door, the drive, and the garage. If the standard of care required is to take measures which will prevent or substantially eliminate a risk of injury, guards at least at night time and probably all the time would be called for. That would call for considerable expenditure, and the level of that expenditure would make it unlikely that a failure to provide guards would be a breach of duty. In that event the breach of duty, and in particular the breach of duty found by the trial judge, would probably not have prevented the attack.

Conclusion

144 The appellants’ criticisms of the trial judge’s reasoning in relation to liability are sound and the appeal on liability should be allowed. That makes it unnecessary to consider the correctness of the appellants’ challenges to the trial judge’s reasoning on damages.

Orders

145 The following orders are proposed.

1. The appeal is allowed.

2. The orders of the trial judge are set aside.

3. Judgment is entered for the appellants.

4. The respondent is to pay the appellants’ costs of the trial.

5. The respondent is to pay the appellants’ costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified.

146 HODGSON JA: I agree with the orders proposed by Heydon JA and with his reasons concerning the non feasance case. As regards the misfeasance case, I also would prefer to rest my decision on the question of causation.

147 In the light of the primary judge’s acceptance of Mr. Islam’s evidence that the front door was always unlocked on those occasions when he entered the premises about 11pm, being one week in four, a finding that, but for the appellants’ interference with the front door lock, it would more probably than not have been locked on the night of the assault, would be an unreasonable finding. If the door had been locked on average as often as one night in two, it is improbable in the extreme that Mr. Islam would always have found it unlocked on one night in four or five.

148 Furthermore, even if the front door had been locked on that night, it is for reasons given by Heydon JA far from certain that this would have prevented the assault; and accordingly, in my opinion, a marginal preponderance of probability that the door would have been locked (even if this had been established) would not have been enough to establish on the balance of probabilities that, but for the interference with the lock, the assault would not have occurred.

149 Accordingly, the finding that the assault was relevantly caused by the interference with the lock was wrong and should be overturned.

150 If the evidence had established that an existing security system, on the balance of probabilities, had been consistently used and would have prevented the assault, the question would then have arisen whether removal of that system breached a duty to the respondent. I would prefer not to decide that question. I think it does raise different issues from the non feasance case. I think it also raises different issues from those decided in Modbury: although in one sense, the change from leaving lights on until 11pm to turning them off at 10pm was a positive act, it can also be regarded as non feasance in not paying the extra cost of keeping the lights on for the additional hour.

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