OXLADE v GOSBRIDGE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHEPPARD and FITZGERALD AJA 28 September 1998, 18 December 1998 [1998] NSWCA 167 OCCUPIER'S liability; appellant harassed by hotel patrons in car park, struck patron with motor vehicle; consideration of whether the presence of security personnel would have prevented the accident; Per Mason P and Sheppard AJA (Fitzgerald AJA in dissent): occupier liable. Mason P The appellant left the respondents' hotel at closing time. She had not consumed any alcohol and she was unaccompanied. Her car was parked close to the entrance to the hotel in its carpark. There were up to 40 other patrons in the area, several of them intoxicated and aggressive. The appellant was harassed after she entered her car. Some men banged on the windows calling out names and vulgarities. Others climbed onto the bonnet. The appellant was scared, and she reversed out of the immediate area as quickly as she could. In doing so she collided with Mr Parrish and injured him. She has been held liable to him in negligence, under a consent judgment, in the sum of $80,000 inclusive of costs. By this appeal the appellant seeks contribution from the respondents. The first respondent owned the hotel, the second and third respondents were its lessees, and the third respondent was its licensee. For the purposes of the appeal, no attempt was made to differentiate between them. It is submitted that the respondents were tortfeasors who, if sued by Mr Parrish, would have been found liable for his injuries caused directly at the hands of the appellant. The appellant seeks contribution as to one-third of the $80,000 consent judgment (being a sum found to have been reasonable). The judgment of Fitzgerald AJA, which I have had the advantage of reading, demonstrates why the appellant's fear was generated by the conduct of the boisterous and offensive departing patrons, and why it materially contributed to the inattentive driving which injured Mr Parrish. The remaining issues in the appeal are whether the respondents as hoteliers owed a duty of care to Mr Parrish, whether that duty was breached in the circumstances, and whether the breach contributed materially to the damage suffered by Mr Parrish. The appellant relied on several alternative particulars of negligence at trial. Those pressed on appeal were the failure to provide: 1. a safe means of exit from the hotel and carpark; and 2. failure to monitor the carpark with a security guard; in circumstances where the possibility of misbehaviour from a large number of intoxicated patrons was foreseeable. I have already indicated that the appellant seeks contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946, and not on the basis of breach of duty owed directly to her. Some of the appellant's written submissions and some of the remarks of the trial judge suggest that this distinction may not at all times have been kept clearly in mind. (That is not to say that the case could not have been framed in the alternative manner.) Ultimately, the distinction is not one 2 UNREPORTED JUDGMENTS of substance because the manner in which the respondents are said to have breached their duty to Mr Parrish was in failing to exercise reasonable care in their corresponding duty to the appellant. That breach is said to have led the appellant to injure Mr Parrish as she reacted instinctively, in the agony of the moment, to the fear in which she was placed. The ex tempore judgment of Delaney ADCJ somewhat elides the issues of duty and breach. But read as a whole, it does not deny that the respondents owed a relevant duty of care to patrons while they were on the hotel premises. It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But a duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises (see Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91). The appellant's claim failed at trial on grounds of breach and causation. The trial judge rejected the contention that there had been a failure to provide proper and safe access. He held that evidence was lacking as to what a proper and safe access should have been. The appellant's challenge to this finding is merged with her challenge to the rejection of the alternative case based on the absence of security personnel. This case was rejected on two grounds, which can briefly be described as (1) absence of facts giving rise to a reasonable apprehension by the hoteliers of danger to patrons, and (2) lack of causation. As will become apparent, I consider that the learned judge posed the inquiry relevant to these matters too narrowly. (1) Did the circumstances give rise to a reasonable apprehension by the hoteliers of danger to their patrons? Was the failure to respond negligent? The exceptional nature of the relevant duty of care means that a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons (Chordas at 98-99. See also Allen v Babrab, Inc 43 ALR 4th 278 and following annotations for the American case law). The case based upon absence of security personnel in the carpark was rejected in the following terms: There was nothing that occurred inside the hotel... which would have alerted any reasonable person in the position of the [respondents] that there was likely to be anything adverse occur to Miss Oxlade when she reached the carpark. This suggests that a hotelier will only be liable to a patron when (in the light of events occurring within the hotel premises) he or she ought reasonably to have suspected that the particular patron was at risk. However, the relevant duty of care is not so circumscribed. In Chapman v Hearse (1961) 106 CLR 122, the High Court emphasised (at 120-121) that: .. one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability URJ OXLADE v GOSBRIDGE PTY LTD (Mason P) 3 by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. See also Assaf v Kostrevski, Court of Appeal, unreported, 30 September 1998. Earlier in his judgment, the learned judge had found that the lighting in the carpark was not bright. And he had held that "it is a common experience that things like this occur to both males and females on licensed premises" (referring to the harassment of the appellant). The pub was crowded on the night in question. The possibility that unaccompanied female patrons might be harassed as they left the hotel was not just a matter of judicial notice ("common experience" in the trial judge's words). This was an inference properly to be drawn from the events that occurred on the evening in question, which do not appear to have been atypical. It was natural that intoxicated patrons would arrive in numbers at the carpark at or about closing time. After all, this was a hotel with a public bar and a fairly large carpark. There is nothing to suggest that single women or a crowd of intoxicated young men were rarities in this hotel. A licensee must be taken to have general knowledge about his or her patrons and their general drinking habits. Mr Parrish, the man who was run over by the appellant, was considered by Professor Starmer to have been grossly intoxicated (based on a blood alcohol concentration of 0.191g/1.00 ml taken an hour and half after the accident). He had reached this condition inside the respondent's hotel. There was also the unchallenged testimony of Mr Gazzoli an experienced hotelier and consultant. He gave evidence of the practice at three other hotels in the Sydney area (the Pagewood Rex Hotel, the Hunters Hill Hotel and the South Pacific Hotel at Cringila) where carparks were patrolled at closing time. His unchallenged statement that "one of the risks that licensees are particularly aware of in relation to hotels and carparks is the danger to single females" strikes me as fairly self-evident. In my view it should have been held that the respondents ought to have known that the harassment of a single female patron leaving at closing time was a sufficiently likely event as to have been reasonably foreseeable. Of course, foreseeability of risk of injury or damage is not in itself a determinant of breach of duty of care. Other matters need to be weighed, particularly the magnitude of the risk, the degree of probability of occurrence, and the expense and inconvenience of taking alleviating action (Wyong Shire Council v Shirt (1980) 146 CLR 40; Phillis v Daly (1988) 15 NSWLR 65). If there was a breach of duty to the appellant it also involved a breach of duty to Mr Parrish, because the former breach contributed in a material respect to Mr Parrish's injury. The primary judge accepted that the appellant believed that she might have been at some risk and that she was probably justified in holding that belief. Had the appellant injured herself in her fear and eagerness to escape, then the injury suffered would be seen as the foreseeable consequence of the danger in which she was placed. (Cf Royall v The Queen (1991) 172 CLR 378 at 389; Abdallah v Newton (unreported, Court of Appeal, 19 November 1998)). The fact that Mr Parrish was injured by the appellant as she attempted to avoid injury to herself merely represented the manner in which the breach of a duty which extended to him came home. 4 UNREPORTED JUDGMENTS The learned trial judge may have thought that the appellant's case was that independently-engaged security personnel were required. However, the thrust of Mr Gazzoli's evidence was that what was required - and customary - in a situation such as the present one was for hotel staff to be instructed to provide a visible presence in a hotel carpark at the time when patrons had finished buying liquor and were making their way home. Absent any evidence suggestive of undue expense or inconvenience in this practice, the inference should have been drawn that failure to do anything in this regard invoked a breach of the relevant duty towards the class of patrons that included the appellant and Mr Parrish. (2) Did the breach cause the damage? The harder issue is causation. Did the appellant establish on the probabilities that such a presence would probably have avoided the incident in question? This is necessarily a matter of judgment because the question is hypothetical. However, there is authority supporting the proposition that where there has been breach of a duty to exercise reasonable care to avoid a risk, and where the risk came home, then "breach of the duty is treated as materially causing or contributing to that injury unless there is 'sufficient reason to the contrary'" (Chappel v Hart [1998] HCA 55 at 10 per Gaudron J, citing Betts v Whittingslowe (1945) 71 CLR 637 at 649 per Dixon J. See also per McHugh J at 34, per Gummow J at 68, per Kirby J at 93). Similar reasoning has been applied in cases involving breach of a duty to maintain the cleanliness and safety of a floor in a supermarket (see Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 at 28; Franklins Ltd v Hunter (Court of Appeal, unreported, 1 May 1998)). The judge's reasons for rejecting the case based on absence of security personnel are revealed in three passages of the judgment. These principally address the causation issue, but not exclusively: 1. I do not find that the presence of any person, by way of security men in the carpark, would have or would have been likely to have made any difference to the eventual incident which occurred in this case, namely, the movement of the vehicle driven by Miss Oxlade which struck the plaintiff. Later, he said: 2. On this issue about closing time I accept the evidence of Miss Oxlade that in fact it was 10 o'clock, it was not closing time and there were people still in the premises. In any event, even if it was closing time, as I said before, I am not satisfied that in the circumstances of this case that the provision of any security would have, in any way, prevented the incident which unfortunately occurred. Later, when disagreeing with the evidence of Mr Gazzoli (who had expressed the opinion that failure to control a carpark in a hotel was "a dangerous practice, especially at closing time. If the carpark of the Jamieson hotel had been patrolled on the night of the incident the accident would not have happened") the learned judge said: 3. I disagree with this suggestion. I find that it would have been irrelevant whether there were four or five persons patrolling the carpark. The incident which in fact occurred, namely, the running down and injuring of the plaintiff, in my view, would have occurred and could have occurred no matter if two or three persons were engaged as security persons in that endeavour. Mr Elkaim argued that that was not the case. He said that if there were people outside then the groups of persons, as described by Miss Oxlade, would not have gathered around and would have been prevented from acting in the way that they did. But their initial action of approaching her; their initial action in harassing URJ OXLADE v GOSBRIDGE PTY LTD (Mason P) 5 her, which occurred, as I find, accepting Miss Oxlade, in a short period of time, would not have been able to be prevented. It is a common experience that things like this occur to both males and females on licensed premises.. It is a question of degree. In that case I do not find that the facts and circumstances lead to a finding that any security provided would have had the effect of preventing the incident. It is convenient to deal at the outset with the first sentence in passage No 2. His Honour was in error in his understanding that the appellant's evidence was that she came to the carpark prior to closing time. Her unchallenged evidence was to the contrary, namely that she left the hotel at about 10.30pm, which was closing time (see AB 26, 38). There is however a more fundamental difficulty with the reasoning disclosed in each of the three numbered paragraphs. His Honour appears to have been addressing the unduly narrow question of whether a security presence would be likely to have precluded the particular accident. In one sense this was the ultimate issue. However, the reasoning disclosed suggests that his Honour seems to have been concerned to enquire whether a security presence might have stopped the matter getting out of hand to the extent of Mr Parrish being struck by the appellant's car, as distinct from precluding the fear-creating harassment in the first place. The critical question is whether breach of the duty of care towards patrons generally caused or materially contributed to the appellant's careless driving. (The links between her fear and her driving and between her driving and the injury to Mr Parrish have already been established.) Perhaps this assessment involves an unduly narrow reading of an ex tempore judgment of a busy trial judge.. Against the possibility that this may be so, I would indicate that I feel comfortably persuaded to draw an inference in the appellant's favour on the issue of causation. There is lacking the "sufficient reason to the contrary" to rebut the factual inference in the appellant's favour. But in any event, since this aspect of the judgment did not turn upon any finding as to credibility then it is open for an appellate court to reach the opposite conclusion if satisfied of error (Warren v Coombes (1979) 142 CLR 531 at 551; Zuvela vy Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 230). I am strengthened in doing so by the unchallenged evidence of Mr Gazzoli. 'The trial judge was not bound to accept Mr Gazzoli's evidence, particularly its latter part, notwithstanding the legitimacy of expert evidence being tendered on the ultimate issue (cf Evidence Act 1995, s80). But it was unchallenged, and it is open for this Court to accept it especially if other reasoning of the trial judge betrays error. It is relevant that the melee occurred right outside the main exit into the carpark and at closing time. The critical question is not just whether a security presence could have broken up the melee that occurred before the appellant drove off in panic. Rather, it is whether on the probabilities it would have deterred the men in question from behaving in the threatening and offensive manner that provoked the appellant to drive as she did. Cf Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports 481-399. In my view it would have done so. Alternatively, it would have given the appellant the comfort of being able to sit in her car and sound the horn so as to attract assistance. There was evidence that, since the incident in question, a doorman had been employed at the hotel (AB 49). During argument of the appeal counsel for the respondents contended that it was not open to the trial judge to find, on the evidence, that it was a "common experience that things like this occur to both males and females on licensed 6 UNREPORTED JUDGMENTS premises ". In my view it was open for the judge to reach this conclusion not only in the light of the evidence of Mr Gazzoli, but also as a matter of judicial notice (cf Evidence Act 1995, s144; Cooke v Midland Great Western Railway of Ireland [1909] AC 229 at 237; Liquor Act 1982, s2A). It is not a question of whether the respondents should have kept intoxicated people out of the carpark. Rather, the issue is whether the respondents breached any relevant duty to patrons in relation to the crowd of boisterous young men who debouched from the premises having become intoxicated in the course of the respondents' commercial activity. It must be recalled that this case was argued on the basis that the respondents were tortfeasors who would, if sued, have been liable to Mr Parrish. The respondents denied negligence, but did not plead contributory negligence. The appellant submitted that the appropriate apportionment is that the respondents should jointly share one third of the blame for Mr Parrish's injuries. I would not disagree with this assessment. I propose the following orders: 1. Appeal allowed. 2. Set aside the orders made in the proceedings on the Third Party Notice. 3. In lieu thereof, order that there be a verdict for the defendant against the first, second and third third parties in the sum of $26,666 with costs, to take effect from 28 January 1997. 4. Respondents to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. Sheppard AJA In this matter I have had the advantage of reading the judgments to be delivered by Mason P and Fitzgerald AJA. I do not think that the matter is free from difficulty. The difficulties exist, not because of any doubt that the duty of care owed by the respondents to the original plaintiff relied upon by the appellant existed, but because of the paucity of the evidence led by the appellant in relation to the questions of breach of duty and causation. I have reached the conclusion that I should agree with the judgment to be delivered by Mason P. I do not wish to add anything to his reasons,- with which I am in agreement, except to say that, in relation to causation, an important consideration is the fact that the appellant was parked near the door of the hotel. If there had been any security presence in the car park at all, it seems that it would have been likely to have deterred the type of behaviour of those who harassed the appellant bearing in mind her proximity to the hotel entrance. In the result, I agree that the appeal should be allowed. I also agree with the orders proposed by Mason P. Fitzgerald AJA On 23 August 1994, a motor vehicle driven by the appellant struck a hotel patron in the carpark of the Jamieson Hotel, Penrith. The injured hotel patron (the "plaintiff') sued the appellant in the District Court. The appellant joined the respondents as third parties. The first third party, Gosbridge Pty Ltd, was the registered proprietor of the hotel property. The second and third third parties were the lessees and occupiers of the premises, and the third third party was the hotel licensee. The claim between the plaintiff and the appellant was settled in the sum of $80,000 inclusive of costs,, and the District Court judge who determined that the third party proceeding between the appellant and the respondents found that that was reasonable. This appeal is brought from his Honour's dismissal of the appellant's claim for contribution from the respondents pursuant to subs5(1) and URJ OXLADE v GOSBRIDGE PTY LTD (Fitzgerald AJA) 7 subs5(2) of the Law Reform (Miscellaneous Provisions) Act 1946, on the basis that the respondents are tortfeasors who, if sued, would have been liable to the plaintiff in respect of the same damage as that for which the appellant is liable to him. The appeal was conducted on the footing, expressly adopted by counsel for the respondents, that all respondents would have been liable to the plaintiff if any of them would have been liable. Although the appellant's claim was initially placed on a broader foundation, before this Court it was effectively confined to the single argument that the respondents breached their admitted duty of care to the plaintiff by failing to have security personnel in the hotel carpark at closing time, and that breach of duty materially contributed to the collision in which the appellant's motor vehicle struck the plaintiff. In the appellant's pleaded particulars, it was alleged that the respondents "knew or ought to have known that by reason of the presence of intoxicated persons and unaccompanied females there was the likelihood of harm being occasioned to persons in the carpark"! The appellant, the plaintiff and a number of other patrons left the hotel at closing time. The appellant had not consumed any alcohol. She was "accosted" and asked for a lift as she walked to her car which was parked at an angle close to the entrance to the hotel, and she was harassed after she entered her car. Some men banged on windows of the car and called out names and were vulgar, while others climbed onto the bonnet of her car. She was scared and reversed out as quickly as she could and, in doing so, collided with the plaintiff, whom she had not seen standing near the passenger side of her car. The trial judge accepted that the appellant was frightened and probably justified in believing that she might have been at some risk, but held that her fear did not affect her driving, and that it was "merely.. her inattention" which caused her to drive her motor vehicle in the manner which she did, striking the plaintiff. The trial judge's conclusion that there was no material causal connection between the appellant's fear and her inattention in driving her motor vehicle was expressly stated by his Honour to be "on the basis of her evidence". The respondents accepted that there was no such evidence. It is perhaps not surprising that the trial judge was confused. In his reasons for judgment, which were delivered on 28 January 1997, he said that this action had been heard before him on 20 January 1997 "in an 80 matter running list, over a two week period", commencing that day. Nonetheless, the absence of the evidence to which his Honour made reference vitiates his conclusion that the appellant's inattentive driving was not materially contributed to by her fear, and leaves it open to this Court to draw its own inference. The whole incident occurred in a short space of time, and, in my opinion, common sense suggests that the appellant's fear probably did materially contribute to her inattentive driving. Before this Court, it was accepted by the respondents that the persons who harassed the appellant were the cause of her fear. However, for her appeal to succeed, she must also establish that the presence of security personnel would probably have prevented or deterred those persons from acting as they did and that the risk of injury to persons using the carpark at closing time was such that the provision of security personnel was a reasonable response to that risk, taking into account the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of providing security personnel.? 1. Cf Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, 98-99. 2. Wyong Shire Council v Shirt (1980) 146 CLR 40. 8 UNREPORTED JUDGMENTS The trial judge's findings with respect to these matters were substantially adverse to the appellant, although at one point in his judgment he said: "It is a common experience that things like this occur to both males and females on licensed premises. It is a question of degree". The respondents criticised that observation as unsupported by evidence, but his Honour does not seem to have been relying on evidence but "common experience". Taken in context, the statement in question meant no more than that it is common knowledge that incidents such as the appellant's harassment occur from time to time at licensed premises. At the most, the statement provided the basis for a conclusion that the risk of such an incident as occurred was reasonably foreseeable, but there was no finding by his Honour concerning the frequency of such occurrences, either generally or at the respondents' hotel. The only evidence on this aspect of the matter was given by an experienced hotelier, David Nicholas Gazzoli, who provided a statement which was tendered and who was not cross-examined. The appellant placed particular reliance on paral3 and paral4 of that statement, which were as follows: "13. Not to control a carpark is a dangerous practice, especially at closing time. If the carpark at the Jamieson Hotel had been patrolled on the night of the accident involving the [the plaintiff] and [the appellant] the accident would not have happened. 14. One of the risks that licensees are particularly aware of in relation to hotels and carparks in the danger to single females. For that reason, it is essential carparks be controlled, particularly at closing time when larger numbers of people will be present." The trial judge specifically referred to Mr Gazzoli's opinions, but rejected them. Apart perhaps from the second sentence in paral3, which was necessarily conjectural, it is regrettable that his Honour did not explain why he rejected Mr Gazzoli's evidence, especially since the respondents called no evidence concerning the type of behaviour which had occurred in the Jamieson Hotel carpark on occasions prior to the night on which the plaintiff was injured. There was a sound basis for an inference adverse to the respondents concerning their knowledge of the type of behaviour which might occur. However, even if that issue were decided adversely to the respondents, the appellant must surmount the hurdle of his Honour's remaining finding adverse to her, namely that the presence of security personnel would probably not have made any difference. It was submitted for the appellant that his Honour concerned himself with the ability of security personnel to prevent the incident which frightened the appellant, and that he should have found that the presence of security personnel would probably have acted as a deterrent. While that conclusion might have been open to him, in my opinion he was not obliged to make such a finding. While a breach of duty can be held to have materially contributed to a later injury unless there is sufficient reason to the contrary,? it remains a matter for subjective assessment in each case whether a necessary causal relationship is established. In this case, I consider that there is no justification for this Court substituting a different finding from that made by his Honour in the following terms: 3. Chappell v Hart (1998) 156 ACR 517, at paral0, para34, para68 and para93. URJ OXLADE v GOSBRIDGE PTY LTD (Fitzgerald AJA) 9 "T do not find that the presence of any person, by way of security men in the carpark, which was not a small carpark on the evidence, would have or would have been likely to have made a difference to the eventual incident which occurred in this case.... Iam not satisfied that in the circumstances of this case that the provision of any security would have, in any way, prevented the incident which unfortunately occurred... In this case I do not find that the facts and circumstances lead to a finding that any security provided would have had the effect of preventing the incident." These findings seem to me to be supported by common sense. There is no reason to suppose that the presence of security personnel in the carpark would have prevented the loutish behaviour which caused the appellant to act as she did or would have caused her to respond differently to such behaviour. Whether matters might have been different seems to me at most a matter for speculation. In summary, the appellant failed to persuade the trial judge of matters which were essential to her case, and I am not convinced that his Honour was wrong. It seems desirable to emphasise that this case turned very much on the, paucity of evidence for the appellant, and provides no general indication of the reasonable protection which hoteliers ought provide for patrons and others at closing time. The appeal should be dismissed with costs. 1. Appeal allowed. 2. Set aside the orders made in the proceedings on the Third Party Notice. 3. In lieu thereof, order that there be a verdict for the defendant against the first, second and third third parties in the sum of $26,666 with costs, to take effect from 28 January 1997. 4. Respondents to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified. Counsel for the appellant: D A Wheelahan QC, M A Elkhaim Solicitors for the appellant: McCourts Counsel for the respondent: H J Marshall, D Wilson Solicitors for the respondent: Thurlow Fisher