Toop v Mobil Oil New Guinea Ltd
[2001] VSC 7
•7 February 2001
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 6368 of 1997
| GREGORY TOOP | Plaintiff |
| v. | |
| MOBIL OIL NEW GUINEA LTD. AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 JANUARY 2001 | |
DATE OF JUDGMENT: | 7 FEBRUARY 2001 | |
CASE MAY BE CITED AS: | TOOP v. MOBIL OIL NEW GUINEA LTD. & ORS. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 7 | |
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CATCHWORDS: Summary judgment for defendant – Plaintiff's claim an arguable one – Duty of care to guard against criminal acts by a third party – High degree of foreseeability and predicability of harm from criminal conduct of third party.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. A. Ingram | Clark & Toop |
| For the First Defendant | Mr. M. Scott | Blake Dawson Waldron |
| For the Second Defendant | Mr. P.H. Clarke | Herbert Geer & Rundle |
HIS HONOUR:
This is an appeal from the order of a Master of the Court made on 13 December 2000 whereby the Master ordered that the plaintiff's statement of claim in respect of the first and second defendants be struck out, that the proceeding against the first and second defendants be forever stayed and that the plaintiff pay the first and second defendants' costs of the proceeding including any reserved costs.
The facts giving rise to the plaintiff's claim against the three defendants are set out in my reasons for judgment delivered in the proceeding on 12 February 1999. To that extent these reasons for judgment are to be read in conjunction with my reasons of 12 February 1999.
The only observation I wish to make concerning the factual aspect of my earlier reasons for judgment is that since delivering those reasons I have ascertained that in Papua New Guinea persons committing serious criminal offences are in fact referred to as "raskols" not "rascals" as I had earlier been led to believe.
On 5 April 2000 the plaintiff filed a summons in the Court whereby he sought an order that he be permitted to amend his statement of claim.
On 19 April 2000 the second defendant filed a summons in the Court whereby it sought an order that paragraphs 5 to 13 and 16 of the plaintiff's statement of claim delivered with the writ and the plaintiff's further and better particulars in respect of paragraphs 5 and 6 of the statement of claim be struck out pursuant to Rule 23.02 on the grounds that they:
(a)do not disclose a cause of action against the second defendant under the laws of Australia or Papua New Guinea;
(b) are scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; and/or
(d) are otherwise an abuse of the process of the Court.
It was those summonses which were before the Master on 13 December 2000.
However, counsel for the parties informed me that the only summons argued before the Master was the plaintiff's summons seeking leave to amend the statement of claim. Nevertheless the Master made the orders he did in the proceeding.
Having regard to the fact that the hearing before me is a hearing de novo I determined to hear both applications giving the parties special leave to bring them before a Judge of the Court insofar as such leave may have been necessary.
In my earlier reasons for judgment I pointed out that the plaintiff's claim against the first defendant as it was then pleaded, was based upon the fact that the first defendant owned, occupied controlled and was responsible for the premises at which the attack on the plaintiff occurred. The plaintiff alleged that the injuries he received as a consequence of the attack upon him were caused by the negligence of the first defendant in that among other things it failed to design the premises in question so as to ensure that patrons of the premises were kept safe from armed robbers and failed to design and implement a system whereby entrants to the premises were subject to adequate security.
Similar claims were made against the second defendant on the basis that at all times material the first defendant was acting as its agent and that it was liable for the acts and omissions of the first defendant.
By the proposed amendments to his statement of claim the plaintiff seeks to expand upon those particular allegations.
If given leave the plaintiff would allege in substance:
(a) that either the first or second defendant designed the service station;
(b)that the second defendant provided to the first defendant what is described as a standard "Pegasus 21 Design" for the service station;
(c)that the "Pegasus 21 Design" was used for the construction of the service station;
(d)that the construction of the service station was supervised by the first and/or second defendant;
(e)that at the time of the design, the supply to it of the "Pegasus 21 Design" and the supervision by it of the construction of the service station the first defendant knew or ought to have known by reason of the fact that the service station was designed for the sale of petroleum products to motorists, the consequent inevitable presence of patrons' money and goods at the convenience store at the service station and that the service station and persons at it were liable to be attacked and robbed by raskols (misspelt "rascals"); and
(f)that similar knowledge was or should have been possessed by the second defendant.
The plaintiff would then allege that by reason of those matters the first and second defendants owed to patrons of the service station a duty to take reasonable care to provide it and patrons of it adequate structural facilities and security arrangements to protect against or limit the risk of attacks by raskols in the course of robbing or attempting to rob the service station and any persons present at it.
Finally the plaintiff would allege that the first and second defendants breached that duty of care as a consequence of which the plaintiff sustained the injuries referred to in his statement of claim.
The decision which appears to have influenced the Master, and which was debated at some length before me is that of the High Court in Modbury Triangle Shopping Centre Ltd. v. Anzil.[1]
[1](unreported 23 November 2000)
In that case the respondent Anzil was employed as manager of a video shop in a shopping centre in a suburb of Adelaide which was leased by his employer from the appellant Modbury.
On a Sunday evening in July 1993 Anzil closed the video shop at 10.00 p.m. The only other shop that had been open that night was a chemist's shop which had closed at 8.00 p.m.
At about 10.30 p.m. Anzil left the video shop and walked a distance of about 10 metres towards his car which was parked in the car park. The car park lights were not on at the time.
As he walked towards his car Anzil was attacked by three unknown men one of whom was armed with a baseball bat and sustained injury.
Anzil sued both his employer and Modbury in tort for damages.
The basis of Anzil's claim against Modbury was that it was the occupier of the car park, that at the time of the attack the car park lights were off; that in the circumstances of the case the failure to leave the lights on was negligent; that the risk of harm of the kind suffered was foreseeable; and that the negligence was a cause of the harm.
By a majority the Court held that Modbury's duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to Anzil resulting from the criminal behaviour of third parties on that land.
However, at para. 29 et seq of his judgment Gleeson, C.J. said:
"29… The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
30There 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. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd [1987] AC 241 at 261 per Lord Mackay of Clashfern. It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded [See Restatement of the Law of Torts 2d at ss. 302B, 344]. A leading American textbook states that [Prosser and Keeton on the Law of Torts, 5th ed (1984) at 199-201:
'The duty to take precautions against the negligence of others … involves merely the usual process of multiplying the probability that such negligence will occur by the magnitude of the harm likely to result if it does, and weighing the result against the burden upon the defendant of exercising such care.
…
There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law.'
31That does not represent an accurate statement of the common law in Australia."
Later at para. 34 his Honour said:
"34It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour [Mason P in W D & H O Wills (Aust.) Ltd. v. State Rail Authority of NSW (1998) 43 NSWLR 338 at 358-359, indicated a negative opinion on that question, and gave cogent reasons for that indication. It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated."
At para. 115 et seq of his judgment Hayne, J. who agreed with the judgment of the Chief Justice said:
"115.To hold that the appellant owed a duty to take reasonable steps to prevent or hinder the attack on the first respondent is not only to hold the appellant responsible for conduct it could not control, it is to impose liability on it when its contribution to the occurrence, compared with that of the assailants, is negligible. As Professor Stapleton points out 'Duty of Care: Peripheral parties and alternative opportunities for deterrence', (1995) 111 Law Quarterly Review 301 at 317, the coherence of tort law depends upon 'the notions of deterrence and individual responsibility'. Those values would be diminished if the appellant is held to owe a duty of care of the kind for which the respondents contend. To accept the respondents' submissions would be to impose a duty which does nothing to deter wrongdoing by the appellant or other occupiers. Further, it would shift financial responsibility for the consequences of crime from the wrongdoer to individual members of society who have little or no capacity to influence the behaviour which caused injury.
116.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 cf Chordas v. Bryant Pty. Ltd. (1988) 20 FCR 91; Public Transport Corporation v. Sartori [1997] 1 VR 168. 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. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action."
At para. 146 of his judgment Callinan, J. said:
"146.I have come to the conclusion that the duty owed by the appellant to the first respondent in the circumstances of this case did not extend to a positive obligation to keep the lights illuminated on the towers, or any tower, until after the shop closed. That does not mean that there can never be a duty, whether dischargeable by turning lights on, or otherwise to take precautions to prevent or reduce the chances of criminally inflicted injury or loss by third parties. However, as Dixon, J. in Leurs said, 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. I do not consider that anything of that kind exists here."
In his dissenting judgment Kirby, J. said at para. 64:
"This Court has not previously considered the specific question of whether, at common law, a duty of care may be established and extend, in its scope, to the avoidance of foreseeable risks of injury arising out of the criminal acts of a third party. However, in terms of legal principle, I can see no reason why, depending on the circumstances, such a duty could not arise. A conclusion that it may do so is reinforced by addressing the usual considerations when faced with an attempt to apply established legal principles to a novel fact situation. A court asked to do so:
1.will consider the principles themselves as laid down in existing legal authority;
2.where there is no binding legal authority, will have regard to analogous developments of legal principle, including cases decided in the courts of other common law countries; and
3.in reaching its conclusion, will take into account any relevant considerations of legal principle and policy. In the present context this will be done by responding to the question whether it is 'fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrongdoer for the benefit' [Perre v. Apand Pty. Ltd. (1999) 198 CLR 180 at 275 [259]; cf Caparo Industries Plc v. Dickman [1990] 2 AC 605 at 617-618] of the person making the claim. It will not be done by asking whether the case, or the relationship between the parties, is somehow 'special' (whatever that word may mean)."
Later after reviewing a number of authorities his Honour said at para. 76:
"This review of legal authority therefore demonstrates that neither in Australia nor in any other common law country examined have claims in negligence for damage consequent upon the criminal acts of a third party been excluded as a universal category or class. Such claims have been evaluated by the application to the facts of each case of the ordinary principles of negligence law. For this Court now to hold that no duty of care of a relevant scope requiring reasonable preventive measures can arise in respect of the criminal acts of a third party would amount to a departure from basic legal doctrine. Moreover, it would isolate the approach of the common law in Australia from that of other like countries."
Finally his Honour stated that Modbury's failure to have the car park illuminated at the time Anzil sustained injury represented a fact which it was open to the trial Judge to conclude had materially contributed to Anzil's damage and expressed the view that Modbury's appeal should be dismissed.
Courts throughout Australia and elsewhere have frequently warned Judges of the care which must be taken lest a plaintiff be not improperly deprived of his or her opportunity for the trial of his or her case by the appointed tribunal.
One need go no further than Webster v. Lampard[2] where in following the decision of Dixon, J. as he then was, in Dey v. Victorian Railways Commissioners.[3] Mason, C.J., Deane and Dawson, JJ. said in their joint judgment at p.888:
"The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried'."
[2](1993) 67 A.L.J.R. 886
[3](1949) 78 C.L.R. 62 at p.91
I have given careful consideration to the facts in Modbury and to the judgments of the majority of the Court in that case. However, I am not persuaded that it can properly be said that the plaintiff's case against the first and second defendants as he now wishes to plead it is so hopeless as to justify its dismissal. I say that for the following reasons.
In the first place I consider that the facts in Modbury are so far removed from the facts in the present case that it is distinguishable.
One is not talking here about a suburban shopping centre in Australia on a peaceful Sunday evening. One is talking about a service station in Papua New Guinea.
It is notorious that of recent years there has been unbridled lawlessness throughout the length and breadth of that country.
By and large Australian citizens, and for that matter other foreigners, living in Papua New Guinea even in its capital Port Moresby, have been forced to live in compounds because of the behaviour of roaming bands of raskols.
If that was the situation at the time the service station was built and the first and second defendants were aware of it, and one will not know that until the trial of the proceeding when the plaintiff calls whatever evidence he has in relation to the issues, then it may well be arguable that this is an exceptional case which takes it out of the operation of the general principle – the type of exceptional case spoken of by Gleeson, C.J. in the passage in his judgment to which I earlier referred.
In other words the plaintiff may well be able to establish at trial that at the time the service station was built the first and second defendants knew or should have known that there was such a high risk of harm to patrons of the service station from criminal conduct by raskols that the case is outside the operation of the general principle and that there was a duty imposed upon the first and second defendants to take reasonable steps to prevent it.
In my opinion therefore the appeal should be allowed and the orders of the Master set aside.
During the course of the hearing before me there was much criticism by counsel for the first and second defendants of the plaintiff's proposed amended statement of claim.
In my opinion much of the criticism was unfounded.
Many of the alleged defects in the new statement of claim can be cured by the provision of appropriate particulars and there is no reason why the first and second defendants cannot make the appropriate requests for such information.
I add in conclusion that much of the information the first and second defendants contend they require should be within their own knowledge e.g. the date upon which the standard Pegasus 21 Design was first prepared, by whom it was prepared, the date upon which it was provided by the second defendant to the first defendant if that be the case, the date upon which construction of the service station commenced, the date upon which it first opened for business and so on.
The following are the orders I make in the proceeding:
1.The plaintiff's appeal is allowed and the orders of the Master made on 13 December 2000 are set aside.
2.I give leave to the plaintiff to deliver an amended statement of claim in the form of the amended statement of claim filed 28 November 2000 which is document No. 125 on the Court file.
3.I order that the plaintiff pay to the first and second defendants their costs thrown away by reason of the delivery of the amended statement of claim.
4.I order that the first and second defendants deliver amended defences to the plaintiff's amended statement of claim within 21 days of this day.
5.I order that the second defendant's summons filed in the Court on 19 April 2000 be dismissed.
6.I order that the plaintiff pay the first and second defendants' costs of the plaintiff's summons filed 5 April 2000.
7.I order that the first and second defendants pay the plaintiff's costs of the second defendant's summons filed 19 April 2000.
8.I order that the first and second defendants pay the plaintiff's costs of the appeal.
9.I grant to the first and second defendants the appropriate certificate under the Appeal Costs Act in respect of their costs of the appeal and the costs of the appeal they are required to pay to the plaintiff.
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CERTIFICATE
I certify that this and the 10 preceding pages are a true copy of the reasons for judgment of Beach, J. of the Supreme Court of Victoria delivered on 7 February 2001.
DATED this 7th day of February 2001.
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