TAB Limited v Atlis

Case [2004] NSWCA 322
CITATION: TAB LIMITED & ANOR v ATLIS [2004] NSWCA 322
HEARING DATE(S): 13/09/04
JUDGMENT DATE:
3 November 2004
JUDGMENT OF: Mason P at 1; Beazley JA at 12; Ipp JA at 13
DECISION: (1) Leave to appeal granted (2) Appeal upheld with costs (3) Set aside the judgment and verdict granted by Phegan DCJ (4) Grant judgment in favour of the claimants (5) Opponent to pay the costs of the trial (6) Grant a certificate to the opponent under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.
CATCHWORDS: TORT - Whether duty to prevent harm brought about by the unlawful behaviour of a third party - Assault occuring in TAB agency - Occupier failing to control third party's continued presence on the premises - Scope of duty - Difference between error of judgment and negligence - impossibility of physical removal of threat without police assistance - Whether police should have been summoned - Causation. D
CASES CITED: Canterbury Municipal Council v Taylor [2002] NSWCA 24
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91
Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447
Cole v South Tweed Heads Rugby League Football Club Limited (2004) 78 ALJR 933
Gordon v Tamworth Jockey Club [2003] Aust Torts Reports 81-698
Modbury Trianble Shopping Centre Pty Limited Anzil (2000) 205 CLR 254
Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998)
Smith v Leurs (1945) 70 CLR 256
South Tweed Heads Rugby League Football Club Limited v Cole (2002) 55 NSWLR 113
Tame v State of New South Wales (2002) 211 CLR 317

PARTIES :

 TAB LIMITED (First Claimant)
Francis Michael YOUNGMAN (Second Claimant)
William ATLIS (Opponent)
FILE NUMBER(S): CA 41005/03
COUNSEL: R Toner SC/M Barko (First & Second Claimants)
S Gibb SC/ P A Regattieri (Opponent)
SOLICITORS: TurksLegal (First & Second Claimants)
Etheringtons (Opponent)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2428/02
LOWER COURT
JUDICIAL OFFICER : 		Phegan DCJ


                          CA 41005/03
                          DC 2428/02

                          MASON P
                          BEAZLEY JA
                          IPP JA

                          Wednesday, 3 November 2004
TAB LIMITED & ANOR v WILLIAM ATLIS
Judgment

1 MASON P: I have had the advantage of reading the judgment of Ipp JA, which sets out the primary facts.

2 I am not persuaded that Phegan DCJ erred in concluding that there was a causative breach of duty.

3 The first claimant (TAB) owed a duty of reasonable care to patrons who came to its premises to place bets. The content of that duty extended to the taking of reasonable measures to control rowdy and dangerous patrons whose activities had the potential to threaten the safety of other patrons.

4 The issue on breach is whether the inaction of the manager, Mr Youngman (the second claimant) fell on the wrong side of a line that is difficult to draw. I am unpersuaded that the learned primary judge erred. He had the advantage of seeing all of the witnesses and assessing the evidence in its totality. It was in my view open to him to…

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AGLC
TAB Limited v Atlis [2004] NSWCA 322
Case
[2004] NSWCA 322
Decision Date

CaseChat Overview and Summary

TAB Limited appealed a decision of Phegan DCJ concerning an assault that occurred at a TAB agency. The claimants, who were patrons of the agency, alleged that TAB Limited, as the occupier, owed them a duty of care to prevent harm brought about by the unlawful behaviour of a third party. The core of the dispute revolved around whether TAB Limited had breached this duty by failing to control the continued presence of the third party on the premises and whether this failure caused the claimants' injuries.

The Court of Appeal was required to determine whether TAB Limited owed a duty to prevent harm caused by the unlawful behaviour of a third party on its premises. Specifically, the court considered the scope of that duty, including whether it extended to preventing the continued presence of a disruptive individual. The court also had to assess whether any failure to act constituted negligence, distinguishing it from a mere error of judgment, and whether the impossibility of physically removing the threat without police assistance meant that the appropriate course of action was to summon the police. Finally, the court examined the issue of causation, determining whether TAB Limited's actions or omissions had caused the claimants' injuries.

The Court of Appeal found that TAB Limited did owe a duty of care to its patrons to take reasonable steps to prevent harm from the unlawful conduct of third parties. The court reasoned that while an occupier is not an insurer of patrons' safety, they must take reasonable precautions. In this instance, the disruptive behaviour of the third party was known, and the failure to summon police assistance when it was impossible to physically remove the threat constituted a breach of that duty. The court distinguished this from a mere error of judgment, finding that the inaction was negligent.

The Court of Appeal granted leave to appeal, upheld the appeal, and set aside the judgment and verdict of the trial judge. The court entered judgment in favour of the claimants and ordered TAB Limited to pay the costs of the trial. A certificate was to be granted to the opponent under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

Orders

Orders of the court

(1) Leave to appeal granted (2) Appeal upheld with costs (3) Set aside the judgment and verdict granted by Phegan DCJ (4) Grant judgment in favour of the claimants (5) Opponent to pay the costs of the trial (6) Grant a certificate to the opponent under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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