Todd v Melbourne Airport Service Centre

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 7165 of 1997

KATHERINE TODD

Appellant

MELBOURNE AIRPORT SERVICE CENTRE

Respondent

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JUDGES:	PHILLIPS, BUCHANAN and CHERNOV JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 1998
DATE OF JUDGMENT:	21 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 90

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NEGLIGENCE - Employment - Failure to provide safe system of work - No system to protect security worker against assault - Jury verdict against the evidence - New trial.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D.F. Hore-Lacy Q.C.	Holding Redlich
Mr J. Richards
For the Respondent	Mr C.M. O'Neill	Mills Oakley

BUCHANAN, J.A.:

The respondent is a firm which conducted the business of a service station and valet carpark at Tullamarine Airport. The premises upon which the business was conducted comprised a building used as an office and workshop, nearby petrol and LPG pumps, and at the rear and to one side of the building an extensive carpark which was used to store motor cars left by air passengers. The passengers were ferried to and from the carpark and the air terminals at Tullamarine. At the rear of the building housing the office and workshop, were two or three surveillance cameras that showed views of the carpark to a monitor screen in the office. Lights in the carpark were supplemented by lights fitted next to the cameras to illuminate the area being filmed.
The appellant was employed by the respondent as the night-shift manager of the service station. Assisted only by an 18 year old youth, the appellant was required to conduct the service station and was responsible for the security of the operation, including the carpark. At the time of the event giving rise to these proceedings the appellant was 24 years old. The appellant was first employed by the respondent as a driveway attendant in August 1987 and was promoted to night-shift manager soon thereafter. She had no previous experience as a security guard.
On 14 December 1987 at about 1.50 a.m. the appellant and her assistant were in the office. There were some 60 to 80 cars in the carpark. The appellant observed on the camera monitor someone or something moving in the carpark. She went out into the carpark to investigate. As she was walking between the cars she was intercepted by three persons. One of those persons hit the appellant in the stomach. She fell to her knees. She was kicked in the head and fell to the ground. She was then repeatedly kicked in the head. Her assailants decamped. The appellant was taken to hospital suffering from concussion, bruising and a closed head injury.
Apart from medical evidence, the evidence of the appellant was supplemented by a police report that after the assault an examination of the car next to which the assault occurred revealed the petrol cap had been removed and a strip of rag had been partially inserted into the petrol cap of the car. On behalf of the appellant answers to interrogatories sworn by a member of the respondent firm were tendered. One interrogatory inquired whether at the time of the assault the respondent was required to enter the carpark and whether she was required to investigate any and what security concern in the carpark. The partner swore that the plaintiff was required to conduct patrols of the carpark and to investigate any security concern by patrolling the carpark. In her evidence the appellant had said she had received no instructions as to what to do if people were causing mischief in the carpark. In another answer to the interrogatories the respondent's representative swore that the carpark was poorly lit.
The respondent for the most part did not attack the appellant's account of the assault either by leading evidence or by cross-examination. The respondent called evidence from the appellant's assistant that the appellant said she had seen someone move out the back and said she was going out to see what they were doing. The assistant said he told her not to go out and said he would call the police and let them attend to the matter. There was a Federal Police station some 500 yards away from the service station.
The first question for the jury was whether there was any negligence on the part of the defendant which was the cause of injury, loss and damage to the plaintiff. The jury answered that question: "No."
In this appeal, apart from specific complaints about the wrongful reception and use of evidence by the respondent, evidence which was principally concerned with the existence, extent and significance of the injuries suffered by the appellant, the appellant contends that the jury's verdict was against the evidence and the weight of the evidence.
For present purposes I assume that the respondent's evidence was preferred by the jury to that of the appellant. Accordingly, I accept that there were three cameras, that the camera lenses were not obscured and that the appellant saw the image of a person on the monitor. I also assume that the appellant knew that an attempt had been made to fire-bomb a rubbish bin at the service station a few weeks before the assault. Nevertheless, her expedition into the carpark to investigate the problem, the presence of intruders engaged in illegal activity, who were prepared to use force to escape detection, and the assault upon the appellant were all readily forseeable, and were events which the respondent took no steps to guard against.
A young woman with one youthful assistant was given the task of ensuring the security of the carpark containing as many as 80 cars during the hours of darkness. Although there was a fence on three sides of the carpark, it was accessible to strangers. The carpark was illuminated and equipped with cameras. However, the appellant's duties were not limited to observing the camera monitor and alerting others to take steps to deal with any threat to the security of the cars in the carpark. The uncontradicted evidence of the appellant was that the security of the premises was her responsibility. The respondent admitted that the appellant was to investigate any security concern in the carpark by patrolling it. Yet the appellant was left entirely to her own devices in dealing with any such security concern. The appellant was given only three days training, and that was as a day-shift driveway attendant. She was given no instructions, and no means to meet or avoid any violence which might be offered to her in what was by its description an occupation of some danger, concerned as it was with security.
In my opinion, the appellant has demonstrated that the only conclusion at which the jury could reasonably arrive was that the respondent had failed to exercise reasonable care by reason of the lack of any system to protect the appellant from foreseeable danger; see Calin v. Greater Union Organisation Pty Ltd (1991) 173 C.L.R. 33, at P.42 per Mason, C.J., Deane, Toohey and McHugh, JJ. The evidence was all one way, so that only one conclusion was reasonable. The jury ought to have entered a verdict in accordance with the only evidence which was really presented in the case.
It may be that the verdict is to be explained by failure on the part of the jury to appreciate the distinction between inadvertence by the appellant bearing on the respondent's duty of care and inadvertance bearing on the responsibility of the appellant to take care for her own safety. In defending the appellant's claim, the respondent contended that the appellant was careless of her own safety and contributorily negligent in entering the carpark after seeing the person displayed on the camera monitor.
If the appellant was guilty of a want of care in entering the carpark, the system of work promoted or at least failed to guard against such inadvertence or misjudgment on her part and to that extent the system was deficient. See McLean v. Tedman (1984) 155 C.L.R. 306, at pp.311-3; Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301. I do not think that the distinction between the duty of the employer to guard against inadvertence by the employee and the effect of inadvertence by the employee in dealing with a negligent system was explained by the learned trial judge in his charge to the jury.
However, it is not a ground of appeal that the trial judge misdirected the jury as to the significance of any inadvertence, carelessness or misjudgment on the part of the appellant.
I have not dealt with the other grounds of appeal argued by the appellant because, in my opinion, they do not bear upon the only question answered by the jury. For the most part, those grounds relate to the admission and use of evidence by the respondent which was not concerned with the issue of breach of duty, but rather with the physical and mental consequences of the assault. Thus the appellant complained of the respondent being given access to and using privileged medical reports, of evidence given by a neuropsychologist who was not qualified to give evidence and who based his opinion upon unproven evidence, of evidence led by the respondent that the appellant was malingering, although that had not been put to the appellant's witnesses, and of the tendering of answers to interrogatories although they were neither admissions nor prior inconsistent statements. None of that material directly bore upon the question whether the respondent breached its duty to provide a safe system of work for the appellant. At least some of the material may have been used by the jury to assess the credit of the appellant. However, for the reasons I have expressed, the question of breach of duty was to be determined by facts not in issue, and did not depend upon any testimony of the appellant which was either contradicted by other evidence or tested in cross- examination.
In my opinion, the verdict is inconsistent with the only evidence as to liability really presented in the case. The verdict cannot be explained by the fact that the jury had the benefit of seeing and hearing the witnesses. The existence of a breach of duty by the respondent did not depend upon the jury's view of the credibility of the appellant or her witnesses.
I would allow the appeal and set aside the judgment. In all the circumstances, I think there should be a new trial of the proceedings on all issues.

PHILLIPS, J.A.:

I agree.

CHERNOV, J.A.:

I also agree.

PHILLIPS, J.A.:

Accordingly, the order of the court is as follows;

(1) Appeal allowed;
(2) Set aside the verdict and the judgment given in the County Court on 9
September 1997;
(3) Order that this proceeding be retried on all issues; (4) Reserve to the judge conducting the retrial the costs of the proceeding in the County Court to date;
(5) The respondent to pay the appellant's costs of the appeal.

[1998] VSCA 90

21 October 1998