TAB Ltd v Beaman

[2006] NSWCA 345

New South Wales

Court of Appeal

CITATION:	TAB Limited v Beaman [2006] NSWCA 345
HEARING DATE(S):	6 and 7 April 2006
JUDGMENT DATE:	8 December 2006
JUDGMENT OF:	Giles JA at 1; Bryson JA at 26; Young CJ in Eq at 27
DECISION:	Appeal of TAB Ltd and cross-appeal of Dannik Pty Ltd is allowed. Verdict for the appellant and second respondent. Orders for restitution of amount paid to plaintiff. Plaintiff to pay costs.
CATCHWORDS:	TORTS- Negligence- Duty of care- Scope of duty- Armed robbery at TAB agency operated by franchisee- Employee injured- Whether failure to ensure suitable and safe workplace, system and training- Whether duty extends to protecting employee from criminal acts of third parties- Whether special relationship between franchisee or TAB Ltd and employee- Robbery foreseeable- Capacity to reduce risk considerably- Causation- "But for" the protective measures that may have been actioned, the robbery could still have taken place- Plaintiff fails on causation.
LEGISLATION CITED:	District Court Rules, Pt 17 r10 (now Uniform Civil Procedure Rule r 36.17) Law Reform (Miscellaneous Provisions) Act 1946 Supreme Court Act 1970, s 75A(10) Workers Compensation Act 1987, s 151Z
CASES CITED:	Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Rep 81-636 Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 English v Rogers [2005] NSWCA 327 Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 March v Stramare Pty Ltd (1991) 171 CLR 506 Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Proprietors Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483 State of New South Wales v Kennelly (No 2) [2001] NSWCA 472 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 WD & HO Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	TAB Limited (Appellant/Second Cross Respondent) Colleen Jean Beaman (First Respondent/First Cross Respondent) Dannik Pty Ltd t/as Woy Woy TAB (Second Respondent/Cross Appellant)
FILE NUMBER(S):	CA 40168/05
COUNSEL:	P Deakin QC and R E Quickenden (Appellant/Second Cross Respondent) R S McIlwaine SC and G P Edwards (First Respondent/First Cross Respondent) A Sullivan QC and G Parker (Second Respondent/Cross Appellant)
SOLICITORS:	Curwood & Partners (Appellant/Second Cross Respondent) Peninsula Law (First Respondent/First Cross Respondent) Church & Grace (Second Respondent/Cross Appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	140/01 (Gosford)
LOWER COURT JUDICIAL OFFICER:	J R Nield DCJ
LOWER COURT DATE OF DECISION:	16/7/04 as supplemented by decisions of 24/11/04 and 18/2/05
LOWER COURT MEDIUM NEUTRAL CITATION:	Beaman v Dannik Pty Ltd t/as Woy Woy TAB & Anor

40168/05

GILES JA
BRYSON JA
YOUNG CJ in EQ

Friday 8 December 2006

TAB LIMITED v BEAMAN

Judgment

1 GILES JA: In the reasons of Young CJ in Eq, which I have had the advantage of reading in draft, his Honour holds that a duty of care was relevantly owed to the plaintiff by the TAB and that the duties of care owed by the TAB and the Employer were breached, but that the plaintiff did not establish causation. On the assumption that the plaintiff was entitled to a verdict, his Honour would not intervene in the trial judge’s decisions as to contributory negligence and apportionment between the TAB and the Employer. His Honour sees no purpose in dealing with the challenge to damages.

2 Bryson JA agrees with Young CJ in Eq, save that his Honour does not join in his Honour’s observations as to contributory negligence and apportionment.

3 I agree that the TAB owed a duty of care to the plaintiff, and that it and the Employer breached their duties of care. I have the misfortune to differ from their Honours as to causation.

4 Since I am in dissent in the outcome of the appeal on what is essentially a question of fact, I do not propose to explain for myself why the TAB owed a duty of care to the plaintiff or why it and the Employer were in breach of their duties of care. My starting point is breach of duties of care in failing to provide a bullet-proof screen. I will explain, with the brevity appropriate to a dissent essentially on a question of fact, why lack of the screen in my view caused or contributed to the plaintiff’s injury. My view makes it necessary to continue on to apportionment and contributory negligence and to damages. I agree with what Young CJ in Eq has said as to apportionment and contributory negligence, and will not enlarge upon those matters; I will address damages, again with appropriate brevity.

Causation

5 The relevant breach of duty is failure to provide a bullet-proof screen, a screen without an opening through which an armed robber could threaten the staff member behind it. It is a mistake to limit the breach (as the trial judge’s reasons tended to do) to failure to install the screen following the robbery involving Ms Moore on 27 August 2000, and (as the appellants’ submissions did) to question the practicability of installing the screen after 27 August 2000 and prior to 3 October 2000. While the robbery involving Ms Moore demonstrated the vulnerability of a staff member in the position of the plaintiff, it did not mark the time from which the screen should have been installed. The risk of armed robbery was well appreciated prior to August 2000, and a bullet-proof screen should have been installed long before the occasion of the robbery involving Ms Moore.

6 As I have indicated, I am respectfully unable to agreed that, if a bullet-proof screen had been in place, the plaintiff would still have succumbed to threats from an armed robber as she did on 1 October 2000.

7 First, and as Young CJ in Eq accepts, it appears to have been a carefully planned robbery, committed by persons who were well familiar with the operating procedures of a TAB agency. If a bullet-proof screen had been installed, they would have been familiar with that feature of the agency, and it seems to me unlikely that the robbers would have embarked on the robbery in the manner they did in the first place. That does not necessarily mean that they would not have attempted a robbery, for example, prior to the plaintiff retiring behind the screen for the close-down procedure, but at an earlier time the agency is likely to have been frequented by more people and that makes an attempt less likely.

8 Secondly, I do not see why the existence of a bullet-proof screen would not alter the reaction of a staff member behind it to an armed robber. After all, the point of the screen is to provide protection from the threats of such a robber. It is correct that the TAB security instructions for those manning agencies were to obey a robber’s instructions, but so far as appears the TAB instructions were written without specific attention to the position of a person behind a bullet-proof screen. That person would have much greater ability to take cover and raise the alarm (the security instructions referred to activating an “on-line alarm” if safety permitted) than a person exposed to a gun presented through a moderately large opening in the screen and able to command the space behind the counter.

9 The absence of evidence from the plaintiff of what she would have done if there had been a bullet proof screen does not weigh heavily; it would have been hypothetical evidence of limited weight. There can, of course, be no certainty in hypothesising what would have occurred if a bullet-proof screen had been installed, amongst other things because criminal behaviour is not always subject to the dictates of reason. In my opinion, however, on the balance of probabilities the robbery would not have occurred as it did, and the plaintiff would not have been injured.

Damages - quantum

10 The trial judge assessed damages of $539,250.63 as against the TAB and $484,140.15 as against the Employer. The damages included $67,341.50 for past loss of wages and, respectively, $234,605.86 and $206,738.31 for future loss of wages; they included, respectively, $18,075 and $13,984.25 for future medical and related expenses. The TAB and the Employer appealed against these items in the damages. There would be consequential effects on superannuation and interest.

11 The trial judge found that the plaintiff suffered soft tissue damage to her neck and left shoulder, aggravation of existing but asymptomatic degenerative changes to her cervical spine, and an emotional/psychological reaction. His Honour found that she was left with pain in and stiffness of and restricted movements of her neck, pain in and restricted movement of her left shoulder, and post-traumatic stress (anxiety, hyper-vigilance and depression).

12 It was submitted that the findings as to pain, stiffness and restricted movement, particularly as to limitation in the use of the plaintiff’s left arm, were in error because not supported by the medical evidence. There was medical evidence which did not go so far, but there was medical evidence which did. Of more significance, the trial judge accepted the plaintiff’s evidence as to these matters and her inability because of them to continue in her pre-injury employments. I do not think that appealable error has been shown in the judge’s findings.

13 The plaintiff worked full time for Snap Printing and part time at the TAB agency. The trial judge allowed past loss of wages on the basis that, because of her injuries and the treatment she was receiving, she was unable to continue in her employment with both of them. It was submitted that the evidence did not show that she was unable to continue in her employment with Snap Printing, but there was evidence which the trial judge was entitled to and evidently did accept of the plaintiff’s efforts to return to work at Snap Printing without success. It was submitted that the trial judge failed to allow for a residual earning capacity in an employment away from a threatening work environment, but the plaintiff tried unsuccessfully to return to work and needed re-training in order to work elsewhere so that, at least for past loss of wages, she was not in a position to exercise any residual earning capacity. It was finally submitted that the trial judge had not made any allowance for a fall in March 2001 in which the plaintiff had injured her coccyx, but the evidence did not warrant the conclusion that this injury would have in any event impeded the plaintiff in working for Snap Printing or the TAB. Error in relation to past loss of wages was not made out.

14 The trial judge did not think that the plaintiff had wholly lost her earning capacity. He accepted that, with appropriate re-training, she could work for up to two hours per day in an employment which did not put stress or strain on her neck and left arm, and allowed future loss of wages on the basis that she had lost 75 per cent of her earning capacity. It was submitted, in essence, that his Honour undervalued the plaintiff’s residual earning capacity because of his error in the findings as to pain, stiffness and restricted movement involving her neck and left shoulder. For the reasons earlier given, I do not think that the judge’s findings in those respects can successfully be challenged. It was submitted also that the trial judge was in error in finding that the plaintiff would have worked to age 65, and that although her work had not been particularly heavy it was unlikely that she would have retained the two jobs. The plaintiff gave evidence that she would have worked to age 65. She had a good work history demonstrative of a sound work ethic. I do not think that appealable error in the judge’s finding has been shown.

15 The future medical and related expenses were for twelve medical consultations and twelve physiotherapy sessions per year for the balance of the plaintiff’s life expectancy. It was submitted that, since the plaintiff did not claim for future prescription medicines, there was no occasion to consult her doctors so frequently, and that while some of the medical evidence supported ongoing physiotherapy it did not justify the extent of physiotherapy for which damages were awarded. While one medical opinion referred to “benefit from attending physiotherapy … in the vicinity of 10 to 15 sessions per year”, there was a marked absence of a medical basis for the frequency and continuance of medical consultations and of physiotherapy. In my opinion the trial judge went further than the evidence warranted, and an appropriate award for this item would have been, as a necessarily round figure, $5,000.

Damages - adjustment

16 The trial judge published his substantive reasons on 16 July 2004. He assessed damages as against each of the TAB and the Employer under separate items, with superannuation and interest to be calculated and subject to up-dating of some of the items. He proposed orders involving verdicts and judgments for the plaintiff against each of the TAB and the Employer for the assessed damages, less a credit to the Employer for workers compensation payments, and verdicts and judgments for the TAB against the Employer for 25 per cent of the judgment against the TAB and for the Employer for 75 per cent of the judgment against the Employer.

17 On 24 November 2004 the trial judge published “Final Reasons for Judgment”. His Honour relevantly noted that the parties had agreed to a calculation of the damages at $539,250.63 (the TAB) and $484,140.15 (the Employer), and set out the itemised calculation. He continued -

“2. The parties have agreed the plaintiff is entitled to a verdict against the first defendant for $121,035.03 (being 25% of $484,140.15) and against the second defendant for $404,437.97 (being 75% of $539,250.63).
3. The parties have agreed that the first defendant is entitled to credit for $39,066.71 already paid to or on behalf of the plaintiff.
4. Accordingly, the parties have agreed that, as proposed in paragraph 104 of my Preliminary Judgment, the orders that I make are:

(1) I find a verdict for the plaintiff on her claim against the first defendant for $121,035.03 and against the second defendant for $404,437.97.

(2) I order that the first defendant have credit for $39,066.71.

(3) I order that judgment be entered for the plaintiff against the first defendant for $81,961.32 (being $121,035.03 less $39,066.71) and against the second defendant for $404,437.97.

(4) I find a verdict for the first defendant on its cross-claim against the second defendant for $404,437.97.

(5) I find a verdict for the second defendant on its cross-claim against the first defendant for $121,035.53.

(6) I order that judgment be entered for each defendant on it cross-claim against the other defendant in accordance with its verdict.

(7) … ”

18 The apportioned verdicts and judgments for the plaintiff were incorrect. The plaintiff was entitled to verdicts against each of the TAB and the Employer for the full amount of the damages assessed against that defendant, and apportionment came into it only in assessing the amounts payable as between the TAB and the Employer by way of contribution under the Law Reform (Miscellaneous Provisions) Act 1946 and in the judgments between them on their cross-claims: see for example Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483 at 503, 512; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [22].

19 The TAB applied for a variation of these orders under the slip rule, then Pt 17 r 10 of the District Court Rules (see now UCP r 36.17). The plaintiff supported the application. The Employer opposed it, submitting that there was no power to vary the orders.

20 On 18 February 2005, for reasons then given, the trial judge acceded to the application. He revoked the earlier orders, and made orders to take effect as and from 24 November 2004 -

“(1) I find a verdict for the plaintiff in her claim against the first defendant for $484,140.15 and against the second defendant for $539,250.63.

(2) I order that the first defendant have credit for $39,066.71.

(3) I order that judgment be entered for the plaintiff against the first defendant for $445,073.44 (being $484,140.15 less $39,066.71) and against the second defendant for $539,250.63.

(4) I find a verdict for the first defendant on its cross-claim against the second defendant for $363,105.11 (being 75% of $484,140.15).

(5) I find a verdict for the second defendant on its cross-claim against the first defendant for $134,812.65 (being 25% on [sic] $539,250.63).

(6) I order that judgment be entered for each defendant on its cross-claim against the other defendant in accordance with its verdict.

(7) … “

21 In his reasons of 18 February 2005 the trial judge noted that the parties had agreed upon the orders made on 24 November 2004 and said, “Notwithstanding that I had a view that those orders were inappropriate, because the parties had agreed upon those orders, on 24 November 2004 I gave verdicts and judgments and made orders in accordance with the agreement of the parties”. The Employer was submitted that the slip rule could not be invoked because there was not an accidental slip. It said that, despite his reservation, the trial judge meant to do what he did, and that although the accidental slip could be that of the parties’ legal advisers, there was no evidence that the parties’ agreement was other than deliberate (although not soundly based in law). The Employer further submitted that, even if it had been open to the trial judge to apply the slip rule and vary the orders, the orders made on 18 February 2005 were themselves an incorrect application of s 151Z of the Workers Compensation Act 1987 as expounded in State of New South Wales v Kennelly (No 2) [2001] NSWCA 472.

22 At the hearing it became common ground that the orders of 18 February 2005 were indeed themselves incorrect. The parties agreed that, on the findings of the trial judge, the orders that should have been made were -

“1. Judgment for the Plaintiff against the Defendants jointly and severally in the sum of $484,140.15.

2. Judgment against the Second Defendant (TAB Limited) alone for a further sum of $41,332.86.

3. Judgment for the Cross Claimant (Dannik) against the Cross Defendant (TAB) in the sum of $365,105.11 (75% of $484,140.15).

4. Judgment for the Second Cross Claimant (TAB) against the Second Cross Defendant (Dannik) in the sum of $121,035.03 (25% of $484,140.15).

5. NOTED:


a. Insofar as the Plaintiff’s judgment against the First Defendant (Dannik) the first Defendant is entitled to a credit in the sum of $39,066.71 for payments made pursuant to the Workers Compensation Act 1987.

b. The First Defendant has further satisfied the Plaintiff’s Judgment by payment of the sum of $81,968.32 on 10 January 2005.”

23 I do not think that there is occasion to consider whether the slip rule was available to the trial judge. This Court is exercising appellate powers. The damages awarded by the trial judge were put in issue, and I have upheld the challenge to them albeit in a limited respect. This Court may make the orders which ought to have been made (Supreme Court Act 1970, s 75A(10)), and in making orders consequent on upholding the challenge to damages should make the orders which state the outcome of the dispute between the parties according to law. It having become common ground that the orders ultimately made by the trial judge were incorrect, the error should not be allowed to remain.

24 However, the orders on which the parties agreed require further comment. There should not be two judgments against the TAB, one jointly and severally with the Employer and the other for an additional amount. Based on the figures in the agreed orders, there should be a judgment against the TAB for ($484,140.15 + $41,332.86) $525,473.01, and a judgment against the Employer for $484,140.15. There appears to be a discrepancy between the figure of $525,473.01 and the $539,250.63 assessed by the trial judge; since these reasons will not result in dispositive orders, it is not necessary to resolve it.

The result

25 In my opinion, the appeal should be allowed as to the item of future medical and related expenses in the damages but not otherwise; the cross-appeal should be dismissed, and the parties should be directed to bring in, after recalculation, short minutes of orders in accordance with these reasons.

26 BRYSON JA: I respectfully decline to join in Young CJ in Eq's observations on apportionment, contribution and contributory negligence, which are not necessary for disposition of the appeal. In other respects I agree with his Honour's judgment and proposed orders.

27 YOUNG CJ in EQ: This is an appeal from a decision of his Honour Judge Nield given in the Gosford District Court.

28 The basal facts are that on 1 October 2000 at about 5.45 pm the plaintiff (first respondent) was working alone in the Woy Woy TAB Agency. That agency was operated by the second respondent Dannik Pty Ltd, a company controlled by a Ms Chapman who operated under an agency deed with the appellant. During the hearing the appellant was called "the TAB" and Mrs Beaman, the plaintiff, and the second respondent, "the Employer", and I will continue to use these convenient tags.

29 At the vital time, two persons entered the TAB agency and one armed with a gun pointed it at the plaintiff. He took the plaintiff to a back room and held her down on the floor with his knee while his colleague removed $21,800. The two persons then decamped and have not been seen since.

30 The plaintiff suffered soft tissue damage to her neck and left shoulder, aggravating existing, but asymptomatic, degenerative changes in cervical spine. She also suffered an emotional/psychological reaction. The plaintiff sued both the TAB and the Employer in respect of the injury.

31 The TAB was sued in negligence in that it was alleged that it failed to ensure that the premises where the plaintiff worked were a suitable and safe place to work, that a proper and safe system to work was installed and that the Employer properly instructed the plaintiff in safe work practices with the usual ancillary allegations.

32 The Employer was sued both in breach of statutory duty for failing to ensure the health, safety and welfare of the plaintiff whilst at work and also in negligence in failing to provide the plaintiff with a safe and suitable place of work and a proper and safe system to work and a failure to instruct the plaintiff properly in safe work practices.

33 The learned Judge found for the plaintiff. He apportioned the responsibility 25% to the Employer and 75% to the TAB. There were cross claims between the defendants and the learned Judge made appropriate orders on the claim and cross claim to give effect to his decision.

34 The appellant says:

(a) There should have been a verdict for the appellant;

(b) If the plaintiff was entitled to a verdict the apportionment was erroneous; the Employer should indemnify the TAB;

(c) His Honour should have found contributory negligence in the plaintiff; and

(d) The damages were excessive.

35 The Employer filed a cross-appeal asserting that it was not liable and further challenging the right of the trial judge to amend his decision as to quantum made 24 November 2004 in February 2005 purportedly under the slip rule.

36 By way of background, I should note that it was significant that there had been an earlier robbery of the Woy Woy TAB on 27 August 2000, that is some five weeks beforehand, when a Ms Cassandra Moore, another employee of the Employer, was in charge. After the August robbery, Mr Jeffs, the Operations Support Manager of the TAB called at the agency. He said that he did not recommend any changes to the set up as a consequence of that robbery.

37 The learned Judge described the plaintiff's working area in para [61] of his judgment as follows:

"The screen/barrier on the tellers' counter which separated the employee/s from the customer/s had three holes in it – one was at head height to allow the employee and the customer to talk to each other … one was at counter level to allow money and the betting ticket to be passed between the employee and the customer; one was between the one at head height and the one at counter level to allow the customer to insert the betting ticket into the ticket reader. The hole at head height was sufficiently large to allow a man to pass his hand holding a gun in it through it (as the man who robbed the plaintiff did)."

38 His Honour continued in paras [62] to [64]:

"The plaintiff's case is that the screen/barrier should have been bullet-resistant glass and should not have had a hole in it – the screen/barrier should have completely separated the employee/s from the customer/s so as to prevent an ill-intentioned customer from controlling the employee (in the way that the robber controlled Ms Moore and the way that the robber controlled the plaintiff).
The defendants' case is that screen/barrier was adequate – Mr Phil Jeffs, the second defendant's Operations Support Manager, had assessed the screen after the robbery of Ms Moore on 27 August 2000 and he had decided that nothing needed to be changed.
In my view the way that the robber was able to control Ms Moore on 27 August 2000 … showed that the screen/barrier was not adequate to properly separate the employee/s from the customer/s."

39 His Honour found that Mr Jeffs' view was wrong, that the screen/barrier was inadequate. It should have been replaced as quickly as possible after 27 August, and pending its replacement, additional security measures should have been taken. His Honour found at para [76], that he had no doubt that had the proposed screen been installed before 1 October 2000, or had there been two employees on duty on 1 October or a static guard on the premises for the half hour period before closing time, the robbery of the plaintiff would not have happened and she would not have been injured.

40 All persons involved in this case realised that the last half hour of business of a TAB Agency was the most critical time for possible hold-ups and that accordingly, proper precautions should be taken, particularly during this period. Those precautions, in the present case, involved an electronic door locking system (referred to by everybody in the case as "the EDL") and other procedures, the details of which I will gloss over in the interests of security. There was a dispute between the parties at the trial as to whether EDL was a compulsory or voluntary procedure and the trial judge accepted that it was at the employee's discretion whether it was implemented or not and the TAB does not seek to interfere with that finding on appeal.

41 The closing time for the agency was 5.45 pm.

42 The plaintiff said that she pinned one of the doors 30 minutes before closing and went back inside the office space and stayed there. A couple of people came in after she had done that and when the last person left, she started to count a little bit of money to start her balance. She heard the door open and turned around and she was looking at a gun pointing through the hole in the screen at her. He pointed the gun and told her to hand the keys over, which she did. He grabbed her around the neck, dragged her into the kitchen, forced her down on to the floor and dropped his knee on to her left shoulder blade and put the gun to the back of her head. His colleague then removed the money from the safe.

43 The plaintiff said that the procedure she was instructed to follow, and did follow, was that about half an hour before closing time the procedure was that one-half of the front door had to be pinned and the other half closed, but not locked. Then she had to retreat within the office space and stay there until closing. It would seem that the procedure which the TAB thought it had instructed its agents and their employees to put in motion, was that the operator would electronically lock the entry doors by activating a control in her secure area. She would then proceed to the door and manually lock half the door leaving the second half of the entrance door as it was. She would then return to the secure area and release the electronic locks, but she was able to reimpose the electronic lock at any time at her discretion. This meant that the operator for the last half hour was always in her secure area and that she had the capacity to lock all the doors but otherwise half the door was locked and the other half was available for customers to enter until closing time.

44 It was suggested that a wise person would always keep the doors locked for the last half hour and let any customer who wanted entry to knock on the door.

45 Ms Chapman said at T185 that it was mandatory that the electronic door lock be applied in the last three minutes. The TAB says that had the procedure with the electronic door lock been carried out, the robbery could not have occurred because the bandits could not get into the premises.

46 This is, with respect, easily said, but in the circumstances there were customers going in and out and it would seem that the robber gained access almost immediately after the last customer left. One could speculate as to whether it was wise for the plaintiff to continue counting money etc until after the last customer had left, but it would seem that the procedure was that she could do so three minutes before closing time. Mr Deakin says it is strange that the learned Judge did not refer to the electronic locking device until he came to deal with contributory negligence. I agree with that comment. However, I do not see on the facts of this case how had the Judge looked at the matter a different result would have been reached.

47 One part of the procedure for closing down the Agency for the day was known as "check-mate".

48 The check-mate procedure involves the operator entering a code into her machine which is picked up by TAB head office in Ultimo. The operator at Woy Woy then has three minutes to load the safe with the takings and to send another coded signal. If she needs more time she sends yet a third signal within the three minutes which gives her an extension of time for a further three minutes to complete her work. When the final code is sent, head office sends a message which requires a specific response. If the response instead is a happy message such as "Everything's okay here, have a nice day" instead of the prescribed message, then head office knows there is a hold-up taking place or something else is wrong. Once the check-mate procedure is finished, a beeping sound occurs and the safe is thereafter unable to be opened by the employee.

49 There was a little confusion in the evidence as to whether the plaintiff had commenced the check-mate procedure before she saw the gun. There was some suggestion in her evidence in chief that she had, but at T67 in cross-examination she said that she had not commenced the procedure. However, when she got up after the robbers had decamped she found that the check-mate procedure had been completed.

50 The computer at TAB head office, has recorded what it considered happened that evening. So far as relevant, the computer records:

"17:43.05 initiate/reinitiate office close request

17:44.05 invalid payment (bet not dividend bearing too soon)

17:44.07 pay out

17:45 comp req all clear – office close request

17:57.27 hold up alarm activated."

51 The plaintiff was asked about the "invalid payout" entry. She said the last customer left the shop a few minutes before she started counting up between 5.35 pm and 5.40 pm. The customer was going to cash in a bet but the dividend hadn't come through. The customer was waiting for it to come through but he didn't put his ticket into the machine. He gave up and went. She denied that anyone had put a ticket into the machine which had initiated the signal "invalid payment (bet not dividend bearing too soon)". She said that did not occur at 17:44.05 seconds at which time she was face down on the kitchen floor. She had not commenced nor closed the check-mate procedure but it had happened.

52 If the computer is accurate, then the bandit initiated the office close request, then put in a dividend claim which was rejected a minute later and a further minute down the track, set the signal to close the office. Just why he would have done that is a complete mystery.

53 However mystifying this is, there is no other rational explanation which anyone involved in the case has been able to find to explain these entries on the computer. It is quite clear that at no stage has anyone ever alleged that the plaintiff herself was part of the criminal team that robbed the agency. The trial judge found that the plaintiff was a steady and reliable witness. He accepted her evidence. If there had been some suggestion that it was incompatible with the computer's evidence and there had been some rational explanation for the computer's evidence, that finding might have been challenged. As it is, it seems to me it must stand.

54 It must be remembered too that the plaintiff gave accounts to Mr Jeffs of the TAB and to the police shortly after the incident and that the accounts which she gave on those occasions were substantially the same as she gave in the witness box.

55 The plaintiff's accounts, of course, do not tally completely with the computer records of the TAB. As I said earlier, there is some confusion no matter which version of the facts one takes. In particular, did the plaintiff commence the check-mate or did the robbers do both the initiation and the finalisation of the check-mate? One just does not know.

56 The learned Judge made it quite clear at [54] that the plaintiff impressed him as "open, honest and reliable". A person who understated rather than exaggerated her disabilities and concluded that paragraph by saying:

"I accept her as a witness of truth and I accept her evidence without reservation or qualification."

57 The position thus is that, basically the plaintiff's account was credible and was accepted by the learned judge, and despite the problems I have noted, it must be accepted here.

58 However the trial judge said at para [14] of his judgment:

" … the plaintiff commenced the 'locking up' procedure (called 'checkmate') …''.

59 He also said at para [80] of his judgment:

"I accept that the plaintiff did not complete the 'check-mate' procedure and conclude, as the plaintiff concluded, that because the procedure had been completed, the robber or his accomplice had completed the procedure."

60 The essential problem with this finding is that even though the plaintiff made it quite clear that she had not initiated the check-mate and there was no other evidence on the matter, the Judge found to the contrary.

61 Mr McIlwaine says that although the trial judge used the term "checkmate" in para [14] of his judgment, the context shows that he was actually referring to the locking up procedure which would take place about half an hour before close. He mentioned 5.30 pm as he was evidently under the impression that closing time was 6.00 pm.

62 I agree, however, with Mr McIlwaine's comment that this error was immaterial, particularly as the Judge accepted the electronic locking device did not have to be engaged before or at the time that the close down procedure was initiated.

63 Another unexplainable aspect of this case is that it would appear that at 5.44 pm two tickets were inserted in the machine on the counter claiming successful bets. The first of these was marked that the claim was premature and the second resulted in a nil payout. Just how these two tickets could have been inserted in the machine after check-mate was initiated by the plaintiff or, if she did not do it, after the hold-up commenced is completely inexplicable. The best suggestion made was, to my mind, that the robbers had inserted the ticket to ensure that head office thought that everything was normal in the agency while the hold-up was being committed, but this is speculation.

64 However, the fact that it is inexplicable does not seem to me to have that much bearing on the ultimate result of the case.

65 On the appeal, Mr P Deakin QC and Mr R E Quickenden appeared for the appellant TAB, Mr R S McIlwaine SC and Mr G P Edwards appeared for the plaintiff and Mr A Sullivan QC and Mr G Parker appeared for the Employer.

66 Counsel for the TAB in their submissions in the Amended Orange Appeal Book commencing at p 10 noted that on the basis that the plaintiff was fully accepted the following are the salient facts:

(1) The plaintiff had started the lock-up procedure about half an hour before closing, probably at about 5.30 pm or possibly 5.43 pm and 5 seconds. The plaintiff manually locked half the front door and left the other half unlocked.

(2) The closure time for the TAB office on that day was 5.45 pm.

(3) There were no members of the public in the premises when the plaintiff was counting money between about 5.35 pm and 5.40 pm.

(4) The plaintiff despatched her last customer: he was waiting for a dividend and delaying the plaintiff.

(5) The plaintiff denied commencing the check-mate procedure though the TAB records disclose that the procedure was commenced at 5.43 pm and 5 seconds.

(6) The TAB says that in those circumstances it was at the very least prudent for the plaintiff to have either manually locked the door or to have engaged the electronic door lock when the last customer left the office and that had she done so the bandits could not have entered. Counsel says there was incontrovertible evidence that the plaintiff, contrary to her instructions, failed to lock the front door of the premises through which the bandits gained access at a time when it should have been locked.

67 The TAB challenged the sequence of events as found by the trial judge only in limited respects as set out in para 1.20 on p 13 of the Orange Appeal Book. Counsel for the TAB say that the plaintiff must have commenced the check-mate procedure at 5:43.05, she served one or two customers between that time and 55:44.07, she failed to engage the electronic door lock or manually lock the front door after the last customer left between 17:44.07 and 17:45.05 and it must have been the plaintiff and not the bandits who completed the check-mate procedure as recorded on the TAB's computer at 5:45.05. The bandits then entered the agency between that time and 5:57.27 when the alarm was sounded.

68 The TAB conceded that it owed the plaintiff a common law duty of care. However, the TAB denied that the nature or content of that duty included a duty to protect the plaintiff from criminal acts of third parties.

69 Now it is trite law that being shot by a criminal whether at home, at work or at play is a risk that each member of the community assumes and that merely because one is shot at work does not mean that the controller of the premises or the employer will be liable; see Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 at [62] and following and the cases there cited. What one must look for is a special relationship.

70 The learned Judge said at [53] that the duty which the TAB conceded arose from a special relationship between the plaintiff as an employee of the Employer who was the agent in physical control of the office and the TAB as the principal/licensor of the premises within which the Employer as agent/licensee carried on its business.

71 The learned Judge did not elaborate on that statement. The TAB had, however, put to him in Mr Deakin's closing address (Black Appeal Book page 227):

"Your Honour, could we just remind your Honour of what has now become almost trite law I think, but that absent an employer/employee relationship, which is of course the position of my client, there is no general duty found at law to safeguard the safety of a non-employee from the criminal acts of third parties. The principal authority in support of that proposition is of course the shopping centre case of Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254."

72 Before us, Mr Deakin expanded this by submitting that the Modbury case supports the proposition that special relationships do not include a lessor such as the appellant. An occupier of land does not owe a duty to take reasonable care to prevent injury resulting from the criminal behaviour of third parties.

73 Mr Deakin complained that the learned trial judge noted the concession that the TAB owed the plaintiff a duty of care, did not deal with the submission based on the Modbury Triangle case as to the content of that duty and thereafter assumed that the duty of the Employer and the duty of the TAB was the same and proceeded to deal with breach. Mr Deakin submits that:

"Our starting point is that his Honour was obliged to assess the liability of each of the defendants, and his Honour did not do so. He spelt out the different characteristics of the different duty that each owed, but he did not deal with the liabilities from the obligations of the two defendants separately." (T20-1).

74 Mr McIlwaine said that it must be remembered that in the Modbury Triangle case the extent of the relationships which might qualify a special relationship was not explored. Some examples were given, but the statements made by the High Court were never meant to be exhaustive. Mr McIlwaine acknowledged there was no decided case on similar facts to the present, but that on first principles when a person has the degree of control over the activities of an organisation so that the person who as a matter of law is in charge of the day to day functions of the operation and is bound to observe the first person's directions then there is a special relationship from the first person to that second person and his or her employees.

75 I would accept that submission.

76 In the Modbury Triangle case, Gleeson CJ, Gaudron, Hayne and Callinan JJ all agreed that in that case the occupier of a shopping centre car park owed a duty of care to employees of the shops in the centre but the scope of that duty did not extend to take precautions to protect them from criminal acts. Gleeson CJ said at 265:

"Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle which is that the common law does not ordinarily impose liability for omissions."

77 However, at pp 267-8, the Chief Justice said that there may be circumstances in which not only is there a foreseeable risk of harm from criminal conduct by a third party but in addition the criminal conduct is 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 and the law may impose a duty to take reasonable steps to prevent it. He found it unnecessary to express a concluded opinion as to whether in such a situation Australian law would impose a duty to take reasonable care and pointed out that Mason P in W D & H O Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-9, indicated a negative opinion on that question and gave cogent reasons for that indication. The possible exception has not been argued in the present case.

78 Gaudron J said at p 270:

"There are situations in which there is a duty of care to warn or take other positive steps to protect another against harm from third parties. Usually, a duty of care of that kind arises because of special vulnerability, on the one hand, and on the other, special knowledge, the assumption of a responsibility or a combination of both. Those situations aside, however, the law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control."

79 Hayne J at p 289 pointed out that the problem in the Modbury Triangle case was not whether there was a duty of care such as (as in the present case) was conceded but rather the extent of that duty. He pointed out at 291 that the ability or lack of ability to control the assailants was important in considering the question of duty as well as when considering questions of causation. He said at 293-4:

"Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least 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. I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind."

80 Callinan J at p 302 made it clear that he considered that:

"For such a duty to arise, there must be something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant."

81 Since the Modbury Triangle case there have, naturally enough, been a series of cases where plaintiffs have endeavoured to make controllers of property liable for the criminal acts of third parties. In Proprietors Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659, a court consisting of Mason P, Heydon and Hodgson JJA, allowed an appeal by the occupier of a strata building against a verdict given against it by a District Court Judge in favour of a plaintiff who had been criminally assaulted because of lack of security of the building.

82 Heydon JA gave the principal judgment. At 676 his Honour said that outside the categories of employer/employee, school/pupil, bailor/bailee, parent and person whom the parent's child might injure, the Modbury case left open only two possibilities for liability: (a) cases where there was such a high degree of foreseeability and predictability; and (b) as noted by Hayne J at 293, that there may be an exceptional case where the complaint was about the occupier failing to control access to or continued presence on the premises.

83 At p 680 Heydon JA pointed out that under the exception possibly left open by Hayne J, "control" meant "right to control" not "control in fact".

84 Heydon JA pointed out at p 89 that 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, what a court would be doing would be to change the law and that is not something that any court other than the High Court should do.

85 With respect, the High Court in Modbury Triangle did not indicate that there were closed categories of special relationship. Gleeson CJ seems to me to have indicated examples of where there was a special relationship and he and the other Justices in the majority made it clear that an occupier or lessor was not in that category. The possible exception mooted by Hayne J seems to indicate that there would be situations where the right to control activities by an occupier or lessor was so great that a special relationship might exist.

86 Indeed, in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Rep 81-636 at [666], Heydon JA himself acknowledged that the High Court had made it plain in the Modbury Triangle case that special relationships do not constitute a closed list of categories nor were the boundaries of any particular category fixed.

87 I should turn to the facts indicating the right to control that the TAB had in the instant case. An agency deed bearing date 27 November 1998 is in evidence between TAB and the Employer. The deed notes that the relationship between TAB and the Employer is that of principal and agent. Clause 5(c) provides:

"The Agent shall not make or allow to be made any structural or any other external or internal alterations or additions to the premises fixtures or fittings without the prior written consent of TAB."

88 Clause 6 of the deed then provides:

"The Agent shall be responsible for the conduct of the Agency in a proper, orderly and efficient manner in accordance with the operating instructions laid down by TAB and communicated to the Agent from time to time … ".

89 Clause 8 made it clear that all moneys received by the agent were the property of TAB and the agent, after deducting proper allowable expenses, was to account to TAB for such monies. TAB under clause 19 was to provide the agent with the necessary facilities and equipment and materials including computer terminal equipment in order for the agency to be run.

90 The TAB did issue, from time to time, security notices. One, No 228, set out detailed guidance for cash office staff including instructions such as not to enter the public space for non essential business during the last 30 minutes of trade and advice as to how to engage manual and electronic locking. There was another series of documents issued by the TAB, one entitled "Defence Against Hold-Up" set out in Blue 167, and another headed "Security Procedures Card" set out in Blue 168.

91 Furthermore, the evidence shows that after the robbery in which Ms Moore was involved, the TAB sent out two officers to inspect the Woy Woy agency, a Mr Jeffs and a Ms Xenda. The senior of these was Mr Jeffs and he advised Ms Chapman that there was no need to take any further precautions.

92 In this situation it seems to me that one can almost equate the TAB with the Employer. This is because the Employer is in no position to take measures to protect its employees without the consent and concurrence of the TAB. It could not install any further security devices or different types of payout windows or door locks without such consent. The situation is analogous to English v Rogers [2005] NSWCA 327, where a hotel utilised the services of a cleaner through the medium of his cleaning company but, despite the intervention of the cleaning company, the hotel in which the cleaner worked was held to be in much the same position as an employer.

93 There is also a cross-appeal by the Employer, but the Employer, naturally enough, did not contest the existence of a duty of care.

94 For the reasons I have given I consider that there was a duty of care on the TAB and it was of the same nature as the duty on the Employer. Accordingly I can pass to questions of breach of the duty.

95 The learned trial judge said at [57] and following, that on the evidence there could not be any doubt that a robbery of some sort was foreseeable and this was confirmed by the robbery of Ms Moore on 27 August 2000. He then turned his mind to whether the existing screen/barrier on the tellers' counter was adequate. As I have said, he noted that the barrier had three holes in it, one at head height to allow the employee and customer to talk to each other, one at counter level to allow money and the betting ticket to be passed through, and one at counter level to allow the customer to insert the betting ticket into the ticket reader.

96 His Honour held at [64]:

"In my view the way that the robber was able to control Ms Moore on 27 August 2000 … showed that the screen/barrier was not adequate to properly separate the employee/s from the customer/s."

97 The Judge said that the plaintiff's case was that the cost of installing bullet resistant glass fitted with an intercom would be $23,619.20 or $5,904.80 per work station. He accepted that costing and he considered it to be reasonable and not prohibitive. He said at [75] that the robbery of Ms Moore revealed that the existing screen was inadequate and therefore it needed to be replaced with a screen which provided complete separation for the safety and protection of the employee. He then said:

"I am satisfied that the proposed screen is a practical and cost-effective alternative to and improvement upon the existing screen. Such a screen would have prevented the robbery of the plaintiff from happening because the robber could not have taken control of her."

98 He continued at [76]:

"I do not have any doubt that, had the proposed screen been installed before 1 October 2000, or had there been two employees on duty on 1 October 2000, or had there been a static guard on the first defendant's premises for the half-hour period before closing time on 1 October 2000, the robbery of the plaintiff would not have happened and she would not have been injured."

He accordingly found there had been a breach of the duty of care.

99 It can be seen that the learned trial judge found three matters to constitute breach of duty:

(a) failing to provide a bullet proof screen/barrier;

(b) failing to provide security guards pending replacement of the screen/barrier; and

(c) failing to provide at least two employees pending such replacement.

The TAB submits that in each of these the learned trial judge erred.

100 As to (a), Mr Deakin said that it was clear from the whole of the evidence that it was quite impractical for the agency to be conducted behind whatever screen was in place. For instance, the operator would have to come out from her secure area to post up race results which were required to be written up in the public area on display boards. It was also necessary for late scratchings and driver changes to be posted up and assistance given to customers to place bets. Furthermore, customers had to access the terminals on the bench to place papers and cards into the machines.

101 Whilst what I have just said which comes from Mr Deakin's argument in the Orange Appeal Book is quite correct, it does not seem to me with respect that it deals with the matter in hand. What one must focus upon is the last half hour of trading and it would be quite feasible in that time that if a bullet resistant screen had been in place for the operator to keep behind when dealing with the money when the current robbery occurred (and indeed when that involving Cassandra Moore took place), the crime would have been prevented. Now it may be that there would be occasions where a criminal could take control of the operator when she was outside the secure area. I do not really think that is very relevant. During the last half hour the instructions were that the operator was to remain in her secure area, and she was advised, to put it at its very lowest, to secure the doors, but whether she did so or not in her secure area behind a bullet proof screen in the last 30 minutes of trading she would have been protected.

102 The other matter raised is that although the cost of a bullet proof screen was $23,619.20, the Judge should have borne in mind that in accordance with the uncontradicted evidence, there were 360 TAB agencies in NSW and the cost of fitting them all would have been $7.5 million.

103 I do not consider that this is the correct way of looking at the question of costs when considering the factors set out by Mason CJ in Wyong Shire Council v Shirt (1980) 146 CLR 40. There was no material before the Judge as to the turnover or profits of the TAB in NSW and there was no material as to whether the risk of hold-ups was identical in each of the 360 sets of premises used by the TAB in NSW or to the configuration of the buildings in which those other businesses operate. The central point remains that there was the capacity to reduce the risk considerably in this building, and indeed to prevent the present incident occurring by the expenditure of a little over $22,000 in a profitable trading business. I see no fault in the trial judge's approach on this aspect of the case.

104 As to (b) and (c), I agree with Mr Deakin's submissions that the trial judge failed to take into account the fact that the plaintiff had never included any such allegation in her statement of claim and that these sort of matters were solely within the province of the Employer.

105 I now need to consider causation.

106 Mr Deakin submits that the learned judge does not deal expressly with this issue. This, unfortunately, is correct. He does state that the plaintiff's injuries resulted from the breaches of duty of care owed by each defendant. Mr Deakin submits that it is incumbent upon the plaintiff to prove that the particular steps which she alleges should have been taken would have prevented her injuries. This is, of course, completely correct.

107 Mr Deakin then submits that the bullet proof screen was not shown to have prevented the entry of offenders and thus the plaintiff's case falls on the issue of causation. Additionally, had the plaintiff implemented the electronic door locking device, the robbery would have been prevented.

108 Mr Sullivan submits that there are two insuperable problems from the plaintiff's point of view on the issue of causation. He says that the long accepted basic test is whether the breach was a necessary condition of the harm in the sense that the harm would not have occurred but for the conduct; see eg March v Stramare Pty Ltd (1991) 171 CLR 506, 515-6. The Judge expressed virtually no reasons for coming to the view that he had no doubt about breach and did not deal with causation.

109 Assuming that the Employer and the TAB breached the duty to provide a bullet proof screen without holes in it, Mr Sullivan submits that it is impossible to conclude that the robbery would not have occurred. He says the sole reason offered by the Judge was that the robbery would have been prevented "because the robber could not have taken control of Ms Beaman".

110 Mr Sullivan submits that this ignores Ms Beaman's evidence that it was quite impracticable to work solely behind the barriers and that from time to time it was necessary to go into public spaces.

111 I do not, myself, think that this is an answer as I have indicated earlier that there is no material to show that during the last half hour it was necessary for the plaintiff to enter the public area though it is undoubtedly so that she would have had to at some stage during her day.

112 Mr Sullivan then says that the plaintiff gave no evidence that had there been a bullet proof screen without holes in it, she would have entrusted any assurance given to her that she was safe. There was no evidence from which a proper inference could be drawn, that had there been a bullet proof screen the plaintiff would not have acceded to the robbers' demand. It would take a very brave, perhaps foolhardy person, confronted with two robbers, one of whom was armed, to place her trust in the effectiveness of an allegedly bullet proof screen.

113 In para 71 of Mr Sullivan's submissions he puts that the trial judge's primary finding in respect of breach of duty was the failure to install the bullet proof screen. He found this should have been installed as quickly as possible after 27 August 2000 when there was the robbery involving Cassandra Moore. Surely, it is argued, this should have been in place before 3 October when the plaintiff was robbed. The other two breaches of duty found by the Judge, that is, the employment of extra staff and/or security guards, were only intended by him as temporary measures while the bullet proof security screen was being installed.

114 He notes that the TAB's response to this is that there was no evidence to support the view that a bullet proof screen, even if installed as quickly as possible after 27 August, would have been installed by 3 October. As there was no evidence that it was practicable for the bullet proof screen to be installed prior to the date of the second robbery, it is not possible to find that there was a breach of duty in not installing the screen by that time.

115 I consider that these arguments are correct. We have here as Mr Sullivan submits, what appears to be a carefully planned robbery, and as other parts of the evidence suggest, a robbery committed by people who were well familiar with the operating procedures of a TAB agency. The Judge does not appear to have considered that before the robbery involving Ms Moore, the TAB or the Employer should have considered the installation of bullet proof screens. There is not the evidentiary material to show that it was practicable to install such a screen between 27 August and 3 October 2000.

116 Furthermore, the onus being on the plaintiff, there was not evidence to show that but for the lack of the screen the robbery would not have occurred. There is nothing to show that a person behind a supposedly bullet proof screen when threatened by an armed man, would do otherwise than to give in to the armed man. Indeed, this view is reinforced by the instructions given to staff by the TAB that they should obey the robber's instructions.

117 Accordingly, it does not seem to me that the plaintiff has shown that the lack of the screen on 3 October was causative of her injury.

118 I am also not satisfied that it can be found that the Judge's suggestions of the failure to take temporary measures, such as requiring that there be two people working in the office in the last half hour or the provision of a security guard, have been shown to be causative of the plaintiff's loss. There is a lot of force in Mr Sullivan's submissions that there was just not the evidence from which it could be concluded that the presence of another employee would have meant that the robbery would not have happened. Likewise with the presence of a static guard, even an armed one.

119 It is thus unnecessary for me to look at the other submission of Mr Sullivan that the cost of either a second person or of an armed guard in the light of the Employer's accounts which were before the court would have made the whole business unviable.

120 It follows from the above that the plaintiff has failed to prove that her injury was caused by a breach of duty of either defendant and accordingly the appeal must be allowed and the verdict for the plaintiff set aside and in lieu there must be a verdict for the appellant and second respondent, that is, the TAB and the Employer. There should be consequential orders for restitution of the amount already paid to the plaintiff and the usual order for costs, that is, the plaintiff is to pay the costs below and of the appeal but to have a certificate, if qualified, in respect of the costs of the appeal.

121 Because of my finding on causation, it is not necessary to delve into other matters. I will, however, give some brief reasons with respect to apportionment and contributory negligence in case the matter goes further.

122 I now turn to the second aspect of the appeal and that is, that if the plaintiff was entitled to a verdict the apportionment was erroneous and the Employer should indemnify the TAB.

123 Both the TAB and the Employer were found liable to the plaintiff. The Judge found a verdict for the Employer on its cross-claim against the TAB for 75% of the plaintiff's verdict against it and a verdict for the TAB against the Employer for 25% of the plaintiff's verdict against it. He also apportioned costs, 25% to the employer and 75% to the TAB.

124 The learned judge came to that result by noting that it was beyond argument that the TAB controlled the Employer's operation of the TAB agency. I have already referred to the provisions of the agency agreement which brought this about. Furthermore, he said that Mr Jeffs had assessed the agency's security arrangements after the robbery involving Ms Moore on 27 August 2000 and had decided that nothing needed to be changed. He thought that it was appropriate in view of this to apportion responsibility 25% to the Employer and 75% to the TAB.

125 Mr Deakin submits that the apportionment against the TAB should not have exceeded 50%. The basal argument is that the Judge did not provide any adequate reason for his apportionment and that the degree of control was not a sufficient reason for imposing the larger share of the liability on the TAB when the immediate control of the premises was with the Employer.

126 As Mr Sullivan has submitted, a trial judge making an apportionment is afforded a very wide discretion and the appellate court will only interfere with the exercise of that discretion, in very limited circumstances; see eg Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 493-4 and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 878.

127 I must confess I cannot see any reason to fault his Honour's apportionment. It was a value judgment. The flavour of the evidence was that the TAB was de facto in charge of the way in which the business was conducted and a choice of a 75/25% apportionment against the TAB is not one which is outside the range.

128 I now turn to the question of whether his Honour should have found contributory negligence in the plaintiff. The learned Judge dealt with contributory negligence fairly briefly. He said at paras [79] to [81] of the judgment that what the plaintiff did when the robbery occurred and before the robbery occurred was in accordance with what she had been told to do. The principal argument was that had the plaintiff followed the electronic door lock procedure, the robbery would not have occurred. I have already explained what this procedure entailed.

129 Mr Deakin submits that in the light of the admissions made by the plaintiff of her knowledge of the procedures, and in view of the specific warnings which she had received in relation to the risks of robbery occurring in the last half hour of trading the Judge erred in concluding that there was no contributory negligence. The external door of the premises could easily have been locked by the plaintiff when the last customers left either when she went to the door to half lock it or by engaging the electronic device. Her failure to do so was clearly negligent and was the most significant factor in contributing to her own injuries.

130 I must confess I am not particularly impressed with this submission. The basal problem is that the agency was to be open until 5.45 pm yet the procedures involved the plaintiff cashing up and putting in place systems before that happened. At any time during the last 30 minutes, and in particular in the last three minutes, a customer could come in and expect to be admitted and served. In this scenario it was of little comfort to the operator that she could electronically lock the doors. She would not necessarily know until a person was admitted before 5.45 pm whether that person was an ordinary customer or a person with malicious intent. It is not clear when the robbers put on their balaclavas. Accordingly, in my view, the learned Judge was correct on the issue of contributory negligence.

131 The next matter about which the TAB complains is the quantum of damages. On 24 November 2004 his Honour recorded that he found a verdict for the plaintiff against the Employer for $121,035.03 and against the TAB for $404,437.97. However, on 18 February 2005, following a motion filed by the TAB supported by the plaintiff but opposed by the Employer his Honour purported to vary his orders to find a verdict for the plaintiff against the Employer for $484,140.15 and against the TAB for $539,250.63.

132 The TAB complains that the damages were excessive and challenges the Judge's award for future loss of wages and future expenses. It originally also challenged the assessment of past and future domestic assistance, but this was abandoned.

133 In view of my decision on liability, there would seem to me to be little purpose in doing more than stating the ambit of the appeal on damages.

134 The same applies to the contention by the Employer in the cross-appeal that his Honour had no power to make the "adjustment" he did in February 2005. Indeed, Mr Sullivan acknowledges in his submissions that if the Employer otherwise succeeds, the matter is not pressed for decision.

135 The result, accordingly, is that the Court in my view should make the following orders:

(1) The appeal of TAB Limited is allowed;

(2) The cross-appeal of Dannik Pty Ltd is allowed;

(3) Order that the first respondent Colleen Jean Beaman pay the costs of the appellant Tab Limited of the appeal and the costs of the cross-appellant Dannik Pty Ltd of the cross-appeal;

(4) Set aside the verdicts judgments and costs orders of the District Court and in lieu thereof:

(a) order that judgment be entered for the defendants with costs;
(b) dismiss each cross-claim and order that each party to each cross-claim pay its own costs of the cross-claim.
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