TAB Limited v Atlis

[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 conclude, as he did, that breach of duty occurred in the failure to take steps towards removing the young men from the premises before matters got out of hand.

5 The men were visibly affected by alcohol, rowdy and offensive. They had been twice warned to behave by Mr Benson; by Therese, the TAB employee; and by Mr Youngman, the manager. On each occasion they complied for a time, before reverting to noisy and offensive behaviour that was obviously concerning to other patrons in the fairly crowded environment of the shop.

6 Mr Youngman realised that their activities constituted a risk of injury to the other patrons. He was admittedly worried “that someone else in the public space would do something irrational”. He gave the two men a warning, telling the smaller (and less aggressive) man that if they did not quieten down they would have to leave. Things “settled down” for a time, but Mr Youngman kept the men in view for two or three minutes, obviously because he was unsure of the longer term effect of his warning. Within minutes, the men recommenced their noisy and aggressive behaviour and continually shouted out obscenities. The elderly patron, Mr Benson had to admonish them again. Another minute or two passed. However, the two men started to shout and swear again. It was at that stage that Mr Benson spoke to them firmly. Unfortunately this provoked the fight in which the respondent suffered injury as a result of his intervention.

7 This was the very thing that Mr Youngman was concerned might happen (Tr pp171, 173, 178).

8 Ipp JA has concluded that there was at most an error of judgment on Mr Youngman’s part. I do not agree. Or, to put it more accurately, I am not persuaded that Phegan DCJ erred when he concluded otherwise.

9 I move to causation. Mr Youngman had the capacity to require the men to leave and to back up his request by summoning the police, using a call button on his phone if urgency was required. More probably than not, in my opinion, this would have (a) induced patrons not to continue taking matters into their own hands and (b) induced the rowdy young men to desist from violence, probably also leaving the premises. I base these conclusions upon my assessment of the level of rowdiness and capacity for self-control of the two men, having regard to the evidence as a whole. I also take account of what happened after the fight itself erupted.

10 I do not share Ipp JA’s concerns based upon this precise scenario not having been put to Mr Youngman in cross-examination. Causation was clearly in issue. The court’s task was and is to determine the probabilities in an admittedly hypothetical situation. Mr Youngman’s views on the topic might have been helpful, but their absence is not determinative. Judge Phegan found causation in the plaintiff’s favour, stating that “the only effective measure facing the [claimants] was removal of the young men”. This, in my view, was intended to encompass the various measures to which I have adverted. In any event, the facts support the reasoning on causation I have discussed.

11 I would refuse leave to appeal and dismiss the summons with costs.

12 BEAZLEY JA: I agree with Ipp JA.

13 IPP JA: This is an application for leave to appeal against a decision of Phegan DCJ whereby his Honour entered a verdict and judgment for the opponent in the sum of $91,189.55. The judgment was in respect of a claim by the opponent for damages for personal injuries. The injuries were said to have been caused by the claimants’ negligence.

14 Leave to appeal was sought in respect of his Honour’s findings as to both liability and damages. It was common ground that leave to appeal should be granted and the appeal upheld in respect of the quantum of damages. The parties were agreed that the amount awarded in respect of damages should be reduced by $20,000. I shall, however, first deal with the issue of liability.

15 For some 19 years prior to 17 April 1999, the first claimant (“TAB Limited”), through its agent, the second claimant (“Mr Youngman”) had operated the TAB at Kings Langley, a western suburb of Sydney. The premises in which the TAB agency was located were relatively small in area. The agency had what was described as a “family type atmosphere” and was a relatively sedate establishment.

16 At about 2.00 pm on 17 April 1999, the opponent – who was then almost 55 years old – entered the Kings Langley agency. About 30 customers were there. They included a wide assortment of people, from young mothers with babies to elderly men and women in their seventies.

17 After the opponent had been in the premises for a period of 10 to 15 minutes, one of two young men (who had been sitting together) went to the betting counter and bought a bet or some bets. He returned to his seat and the two men watched the horse races being shown on the television set in front of them. Soon, the men (particularly the larger of the two) began to swear loudly and conduct themselves generally in a rowdy, unpleasant and offensive manner. Both men were under the influence of alcohol. Apparently, the horse they had backed had lost and they were agitated about this.

18 Phegan DCJ described the scene as follows:

“As many as 30 people were congregated in a relatively confined space, certainly in circumstances where the rowdy behaviour of the two young men was sufficient to both disturb and offend a number of the other patrons in close quarters with them. It was in that sense difficult to get away from the two young men who were making so much noise and drawing attention to themselves”.

19 The conduct of the two men resulted in an elderly patron of the establishment, Mr William Benson, walking across to speak to them. He admonished them for their rowdy behaviour. They then quietened down.

20 Within minutes the noise increased again. An employee of the TAB named Therese went over to the young men in order to calm them down. The two young men went quiet but again, within a minute or two, became noisy and offensive. They were still watching the races (which were being shown about every three minutes).

21 Mr Youngman, who had been in the office part of the premises, came into the public area and told the smaller man that if they did not quieten down they would have to leave. Mr Youngman thought that the smaller man would be more receptive to reason and would have influence over his companion. The two men did in fact quieten down and Mr Youngman moved back to the doorway of his office.

22 Mr Youngman stood at the door of his office for about two to three minutes observing the men. He said that by then “things were settled” and there was no interaction between the patrons and the two men. He thought that things were under control.

23 Mr Youngman then went through the door to his office. Within minutes, the men recommenced with their noisy and aggressive behaviour and continually shouted out obscenities.

24 Mr Benson again went up to the two men and admonished the smaller man. The larger man said to his friend “keep it cool” or words to that effect.

25 After a minute or two had passed, however, the two men started to shout and swear again and the larger man continually threw up his arms apparently in response to something he had seen on one of the races on the television screen.

26 Mr Benson, for the third time, approached them. According to Mr Youngman, Mr Benson “actually put his face to the other man’s face”, they were “fairly close; a matter of inches”. Mr Benson said, “You were told to be quiet” or “I told you to be quiet”. He told them to leave.

27 Mr Benson then moved to the counter and while he was bending over, the larger man stood up and threw a bottle he had been holding at Mr Benson. The bottle struck Mr Benson on his face. The larger man then moved over to Mr Benson and grabbed him around the neck in a stranglehold.

28 The opponent, courageously, came to Mr Benson’s aid by moving forward and trying to pull the larger man away. The opponent was struck on the head and attempted to swing the larger man around to avoid the blows. Eventually, a young woman walked into the premises and asked the opponent to let the larger man go. The larger man said, “If you let me, I will walk out. Let me go and I will walk out.” The opponent let him go and the two men and the young woman walked out. The opponent injured his shoulder in wrestling with the larger man.

29 Phegan DCJ found that it was “foreseeable in [the] circumstances that if the situation were allowed to continue the point would be reached where a complaint made to [the two men] would meet with a more violent response than had been the case up to that point of time.” His Honour concluded that the opponent’s intervention and his resultant injuries were reasonably foreseeable.

30 Dealing with the question whether there was a duty of care upon the claimants, Phegan DCJ said:

“I am satisfied that there was a duty on the [claimants] arising out of the physical circumstances of the premises, that is, the relatively confined space, large number of people in a somewhat crowded situation, the volatility of two young men who had been identified as affected by alcohol, combined to impose a responsibility on the [claimants] to ensure that proper care was taken to avert any unnecessary injury to patrons on the premises. That duty extended, if necessary, to intervention involving the removal of the young men from the premises.”

31 His Honour concluded:

“In my view, the only effective measure facing the [claimants] was removal of the young men, at a point when it became apparent that efforts to simply quieten them down by way of requests was not going to work. At that point, more drastic action was called for. At the crucial time, that is, at the time he intervened, [Mr Youngman] was on notice of the danger and should have anticipated the risk of something happening along the lines that eventually occurred.”

32 The claimants contend that Phegan DCJ erred in finding that they owed the opponent a duty of care. In the alternative they contend that his Honour erred in finding that they breached any duty of care they may have owed to the opponent. Thirdly, they contend that the evidence did not establish that any breach of a duty of care they may have owed to the opponent caused the damage to the opponent.

33 As regards the duty of care question, the claimants relied on Modbury Triangle Shopping Centre Pty Limited vAnzil (2000) 205 CLR 254. They submitted that the circumstances did not impose on the claimants a duty of care to take reasonable steps to prevent patrons of the TAB from suffering harm by reason of the criminal behaviour of third parties.

34 In Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1998) Mason P said:

“It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises”.

See also Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 and Gordon v Tamworth Jockey Club [2003] Aust Torts Reports 81-698.

35 Such a duty is capable of being extended in scope. In my reasons in South Tweed Heads RugbyLeagueFootball Club Limited v Cole (2002) 55 NSWLR 113 (with which Heydon JA and Santow JA agreed) I said (at 137, [152]):

“[The general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant] ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.”

Nothing in the reasons of the High Court in this case ( Cole v South Tweed Heads Rugby League Football Club Limited (2004) 78 ALJR 933) is inconsistent with these remarks.

36 The opponent complains that the claimants negligently failed to control the continued presence of the two young men on the premises. The facts in the present case, therefore, differ fundamentally from Modbury. In fact they fall squarely within the possible exception to the rule in Modbury explained by Hayne J (at 293-294 [117]).

37 In Modbury Hayne J (at 292 [112]) observed that “[t]he occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land”. Hayne J remarked that that power of control established a relationship between occupier and entrant that could suffice to create a duty of care.

38 Accordingly, while it is true that no liquor was sold at the TAB, that is by no means conclusive of the question.

39 Foreseeability of harm is an important factor in this context. It is very much to the point that, by the time Mr Youngman spoke to the two men, he realised that their activities on the claimants’ premises constituted a risk of injury to the other patrons.

40 In my view, the circumstances were such as to give rise to the imposition of a duty on the claimants to take reasonable steps to prevent injury to the TAB patrons from the activities of the two men. This conclusion is simply the product of the concept of reasonableness: see Tame v State of New South Wales (2002) 211 CLR 317 per Gleeson CJ at 330, [8].

41 I turn now to the question of breach of that duty.

42 Phegan DCJ observed that Mr Youngman conceded that:

“… the very thing that happened was something that he had anticipated might happen when he spoke to the smaller of the two young men. He was concerned about the way the larger, taller man was behaving and one reason why he had spoken to the smaller man was that he feared at that stage that the taller man might have been very easily provoked into some sort of aggressive behaviour, and that by resorting to the method of communicating through the less affected and less aggressive of the two, he might have been able to bring the situation under control.”

His Honour observed:

“He did have reason in those circumstances on his own evidence to anticipate the kind of thing that eventually occurred.”

43 Mr Youngman described the men’s behaviour as “very uncomforting [sic]”. He spoke to the smaller man as he thought that that was “prudent”. The prudence lay in his fear that the larger man might possibly “erupt” and become violent if he spoke to him.

44 Mr Youngman said that when he walked away from the men after admonishing the smaller man, he stood at his office door and watched them because, he said, “I was concerned about their behaviour”. He said:

“My worry was that someone else in the public space would do something irrational. That was my feeling”.

He was concerned that one of the other customers would go to the men and “start having a go or having a talk to them”. In the back of his mind, when he stopped at the door to keep an eye on them, was the thought that the men might react and there would be a fight.

45 Thus, there was ample evidence to support the judge’s findings as to the foreseeability of harm. These findings are relevant to breach as the reasonableness of the steps Mr Youngman took to avoid the risk that he had foreseen of injury to patrons must be judged against the likelihood and degree of harm foreseen.

46 Phegan DCJ held, as I have said, that “the only effective measure facing the [claimants] was removal of the young men”. His Honour said that that should have occurred “at a point when it became apparent that efforts to simply quieten them down by way of requests was not going to work”. The judge did not identify the particular point of time when he considered that this should have taken place.

47 Who is it that should have removed the men from the premises?

48 The TAB did not employ security guards at the premises and there was no suggestion that it should have done so. In any event, there was nothing in its history of some 19 years that indicated that security guards were necessary.

49 I am unable to accept that it was reasonably practicable for Mr Youngman, then a 54 year old man, to have personally physically removed these two aggressive, fit young men (who appeared to be less than half his age). The prospect of Mr Youngman being able physically to manhandle the men and thereby eject them from the premises is fanciful and could well itself have amounted to an assault.

50 The only way, realistically, that the men could have been removed is by the police. But only about 10 to 15 minutes elapsed from the time that the men purchased bets to the occurrence of the melee. There was no suggestion that the police would have come in time to prevent the fight that occurred.

51 Accordingly, the finding that the “removal of the young men” would have been an “effective measure” cannot be sustained.

52 In the course of argument on appeal, Mr Gibb SC, who together with Mr Regattieri appeared for the opponent, submitted that the breach occurred by the claimants failing to muster staff to deal with the situation, and then to caution the men and direct them “to desist from their behaviour”.

53 This argument was not advanced at trial and so not put to Mr Youngman. There was no evidence as to whether there was staff on the premises who were equipped, physically, to deal with the situation. In any event, Mr Youngman (true, it is, alone) requested the two men to desist but this request, although successful at first, proved to be of no avail. It is not possible to find on the evidence that the presence of, say, Therese (the young assistant working at the TAB) and Mrs Youngman or any other identified staff member would have added material force to Mr Youngman’s request to desist. I would not uphold this submission.

54 Mr Gibb then submitted that Mr Youngman should have asked the men to leave and should have warned them that, if they did not, the police would be summoned. He said that there was “no evidence that they would have refused to comply without police intervention.”

55 This submission (like the previous one) faces the difficulty that the primary judge made no express finding that Mr Youngman should have taken these steps.

56 It is perhaps arguable that steps of this kind fall within the meaning of the judge’s words “the only effective measure facing the [claimants] was removal of the young men”. That is, in the sense that the expression the “removal of the young men” includes telling them to go and warning them that if they did not the police would be called.

57 The problem with this proposition, however, is that the judge made no finding as to causation and, indeed, did not discuss causation at all. The strong inference is that he assumed that, had the men been removed before the fight, the opponent would not have been injured. This militates against construing his Honour’s reference to removal in any way other than an immediate physical removal. On the finding that the claimants should have removed the men before the fight occurred, there was no need to make a finding as to causation. The causative effect of taking such a step is self-evident. On the other hand, the causative effect of asking the men to leave and warning them that if they did not the police would be summoned is a different proposition. In my view, if this is what his Honour had in mind by “removal” he would have gone on to make findings as to causation – which he did not.

58 The absence of evidence that the men would have refused to leave without police intervention does not assist the opponent. The onus is on the opponent to prove that the men would have left had they been told to go.

59 I am inclined to think, gauged by reference to their later behaviour, that the men would have left the premises immediately had Mr Youngman, when he first spoke to them, told them to leave and that he was calling the police there and then. The knowledge that the police were actually being called would have worried the men, who did not seem to be intrinsically violent characters (as evidenced by their willingness to leave at the later time).

60 Nevertheless, in my view, this Court should not uphold the judge’s decision in favour of the opponent on this ground. In explaining why I have come to this conclusion I shall put aside the fact that his Honour made no finding as to causation and I shall assume that an inference should be drawn to the effect that, had Mr Youngman told the men to go and that he was immediately calling the police, they would have left before the fight started.

61 Mr Youngman thought that his first approach should be “to give them a warning”. He made a considered assessment, when speaking to the men, that they would not continue to act offensively. He did not agree that the best course was to ask them to leave.

62 It is true that he foresaw a real possibility of a fight occurring, and patrons being injured, and he was fearful of that. But that does not necessarily mean that he was negligent in failing to order the men to leave and that he was calling the police. Reasonableness remains the criterion.

63 The men had only been behaving badly for a matter of minutes. Their bad behaviour seemed to be caused principally by their excitement at betting and their disappointment when losing. It was not aimed at any individual patron. Although under the influence of alcohol, they did not seem to be uncontrollable. They had shown no signs of violence to other patrons (albeit that Mr Youngman recognised the possibility of violence) and, as indicated, they quietened down at first. While Mr Youngman feared that violence could occur, particularly if a patron accosted the men while they were behaving so aggressively and obscenely, as he stood at his office door he adjudged the situation to be reasonably safe.

64 Mr Youngman had to make a judgment on the spot, and in awkward circumstances. The answer to the predicament resulting from the behaviour of the men was not obvious. On the one hand, the men seemed to have accepted his requests and calmed down, although he knew that the possibility of a violent eruption was not far from the surface. On the other hand, I infer, confronting the men might itself result in a physical reaction with danger to many. The situation did not admit of an obvious answer.

65 Mr Youngman may have made an error of judgment in not telling the men to go and that he would call the police immediately. But I do not think that that amounted to negligence. In my view, a finding to that effect would be an impermissible finding of negligence by hindsight.

66 The judgment amount is close to $100,000. In my view, the trial judge was in error in finding for the opponent. The issues involved are not novel but in my view deserve the attention of this Court.

67 I would grant leave to appeal, uphold the appeal with costs, set aside the judgment and verdict granted by Phegan DCJ, grant judgment in favour of the claimants, order the opponent to pay the costs of the trial, and grant a certificate to the opponent under the Suitors Fund Act 1951 (NSW) if otherwise entitled.

68 I do not think it necessary to say anything further about the application for leave to appeal against the award in respect of the quantum of damages.

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Last Modified: 11/09/2004