DvCc SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P, PRIESTLEY JA and BEAZLEY JA 4 March, 17 July 1998 [1998] NSWCA 67 WARNING: Section 578A(2) of the Crimes Act applies to this case: it provides that a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. For this reason the principal parties are identified by letters. LIABILITY OF A SOCIAL HOST FOR ACTIONS OF A THIRD PARTY — the respondent, a guest at a party hosted by the appellant, was raped by another guest. The respondent claimed damages in civil proceedings against the appellant arguing that he owed her a duty of care. At the trial, conflicting evidence was given by the appellant and the respondent. Murrell DCJ accepted the respondent's account and made findings of fact on which she decided the appellant did owe the respondent a duty of care in the particular circumstances and was liable for the other guest's actions. American Law Reports 3d Cases and Annotations Vol 10 (1966) at 619-660 American Law Reports 3d Cases and Annotations August 1996 Supplement 98-151 Briginshaw v Briginshaw (1938) 60 CLR 336 Devries v Australian National Railways Commission (1993) 177 CLR 472 Husband v Dubose (1988) 531 North Eastern Reporter 2d Series, 600 Jobe v Smith (1988) 764 P 2d 771 (Court of Appeals of Arizona) Smith v Leurs (1945) 79 CLR 256 Smith v Littlewood's Organisation Ltd [1987] AC 241 On appeal: the appellant did not challenge the finding of the duty of care but challenged the trial judge's findings of fact on the basis she relied on inferences drawn from insufficient material. Held: 1. The primary facts were well-founded and fully justified Murrell DCJ's conclusion that the appellant was liable from the point of his visit to the room; 2. in all the circumstances Murrell DCJ took into account, her inference that the appellant knew and was therefore liable for what was occurring in the room was properly open to her, bearing in mind the onus and standard of proof required by Briginshaw v Briginshaw; 3. in regard to the duty of care not disputed in the appeal, the court considered whether it should accept the concession made by the appellant, and considered that it should, without needing to decide for itself whether a duty of care existed in the case. Mason P. I agree with Priestley JA. Priestley JA. Introduction. As plaintiff in the District Court Mrs C obtained judgment against the defendant, Mr D, in the sum of $83,316. The defendant was ordered to pay the plaintiff's costs. The defendant appealed to this court. The plaintiff's case against the defendant arose out of happenings on 25 November 1994 in a home unit at Fairfield occupied by the defendant. The defendant was the host of a party at which the plaintiff was a guest. In the evening 2 UNREPORTED JUDGMENTS of 25 November 1994 another guest at the party, Mr A raped the plaintiff. On 6 November 1995, Mr A, after pleading guilty to and being convicted of sexual assault upon the plaintiff, was sentenced to penal servitude for a minimum term of two years commencing on that day and an additional term of two years. Under the Victims Compensation Act the plaintiff was awarded the sum of approximately $47,000 in respect of the injury sustained by her because of the rape. In 1995 the plaintiff began the civil proceedings in which she claimed damages against Mr D, and obtained the judgment against him for $83,316 and costs. The trial of the proceedings took place before her Honour Judge Murrell. There were a number of complications at the trial which were not repeated in the appeal. I mention them briefly so that it will be clear what this court has not had to consider in the hearing of the appeal, before moving on to the issues raised in this court which must be decided here. Possible issues at trial not in issue in the appeal. One complication concerned Mr A. He was named as first defendant in the proceedings. He was serving his sentence when the case was heard and did not appear on the first day of the hearing. Arrangements were made for him to be present on the second day. Some difficulties which I need not describe were resolved by the plaintiff's deciding to continue only against Mr D and to stand over her case against Mr A. The result is that the judgment appealed against was only against Mr D and Mr A's position as a defendant need not be further mentioned. (References in my reasons to the defendant will be references to Mr D.) Another matter discussed at the commencement of the hearing before Murrell DCJ was the position of the Crown's right of subrogation under the Victims Compensation Act in regard to any damages the plaintiff might recover against Mr D. That matter was not litigated before Murrell DCJ and played no part in the appeal. Before Murrell DCJ Mr D denied that he owed any duty of care to the plaintiff. That matter was discussed in some detail by the trial judge in her reasons for judgment. Her finding that there was a duty of care in the circumstances was the subject of the first ground in the defendant's notice of appeal. However, when the appeal came on for hearing that ground wasabandoned. The appeal was argued on the footing that the defendant agreed there had been a duty of care in the circumstances. There is therefore no need for the court to rule upon that proposition, although I will mention it again at the end of these reasons. There was detailed medical evidence, by way of medical reports not cross-examined on, put before the court on the plaintiff's behalf, describing the physical and psychiatric effects upon her of the rape. It was in light of this evidence that the trial judge arrived at the sum she awarded for damages. The amount of damages was not made the subject of any ground of appeal, so that it will be unnecessary to give details of the effects of the rape upon the plaintiff. Issues in the appeal. The only questions for this court are whether the defendant by reason of any of the grounds relied on in the appeal should be held not to have been liable for the rape and its consequences. The defendant made submissions to this court in support of grounds 2 to 5 in the notice of appeal, which were as follows: 2. The Trial Judge erred in holding that a risk of injury to the Respondent from [Mr A] was reasonably foreseeable. 3. The Trial Judge erred in finding that the appellant was aware of the danger to the Respondent before she was assaulted by [Mr A]. URJ D v C (Priestley JA) 3 4. The Trial Judge erred in finding that the Appellant knew at the time that the Respondent was being assaulted by [Mr A]. 5. The Trial Judge erred in holding that the Appellant was causally responsible for the Respondent's injuries. Whether or not any of the grounds of appeal should be upheld, depends upon a consideration of each ground by reference to the facts asfound by Judge Murrell. I will therefore set these out before considering the grounds of appeal. Facts found by trial judge. Conflicting evidence was given by a number of witnesses, in particular the plaintiff and her son on the one hand and the defendant on the other, about what happened in the Fairfield home unit on the evening of 25 November 1994. The trial judge said that she accepted the plaintiff as a witness who was both honest and with one possible exception accurate in her recall of the relevant events. She said she was impressed by her demeanour, the internal consistency of her evidence and the consistency between her evidence and her detailed statement to the police on 17 December 1994. She also said that in important respects the plaintiff's evidence was corroborated by her son whom the judge found to be an impressive witness. On the other hand, the judge said, she had formed the view that the defendant was not telling the truth in his evidence. The following findings of fact clearly appear from her Honour's reasons in light of her views about credibility of witnesses. The plaintiff arrived at the unit about 3 pm. She had a meal with the children of the defendant and their mother. The mother left for work at about 3.40 pm. The party, which had started the previous day, had dwindled so that the only people then in the unit were the plaintiff, the defendant, Mr A and the defendant's children. On drinking a glass which had been filled for her the plaintiff noticed that it tasted different and very alcoholic. The defendantand Mr A were talking in a language which the plaintiff did not understand. The plaintiff's son made a telephone call at about 5.30 pm to the unit. The defendant, whom the son knew quite well, answered. The son asked to speak to the plaintiff. The defendant said to the son 'Okay, bye' and hung up. The plaintiff did not hear this clearly. The defendant said to the plaintiff he did not know who was on the telephone. The plaintiff had been expecting a call from the son. She went to the phone and pressed a button and found her son still on the line. She told him she felt a bit dizzy. Some time after the telephone call the plaintiff said her mind became paralysed, she thought she had a blackout and afterwards felt very sick, wanted to vomit, went to go to the bathroom when Mr A grabbed her from behind and pushed her into the bedroom next to the bathroom. He opened her blouse and touched her breasts. She protested, she felt weak and she lost consciousness. When she became conscious she was on the floor of the bedroom and Mr A was having intercourse with her. She screamed for help. A radio was then turned up loudly outside the bedroom. She was still feeling nauseous. Mr A was holding his hand over her mouth but released it a couple of times, when she was able to vomit and screamed 'Help [D]'. She blacked out several times. At one stage the defendant opened the door and turned on the light. Mr A was still having intercourse with her, in full view of the defendant. The next piece of evidence she gave was what the judge described as the 'possible exception' to the judge's otherwise complete acceptance of the plaintiff's evidence. This evidence was that she had said 'Please help me [D]I am going to die' while he was at the door of the room. The judge did not reject this evidence or hold her non acceptance of it against the plaintiff's credibility but 4 UNREPORTED JUDGMENTS said that given the lack of reference to such a complaint in earlier written statements by the plaintiff, she (the judge) was prepared to accept that the plaintiff's evidence in this regard may have been a reconstruction. Returning to the plaintiff's account, which, subject to the 'possible exception', the judge accepted in full, it was that after the defendant had opened the door and turned on the light, and had seen what was going on, he turned off the light and walked out, saying 'Nothing happening here', and shut the door. A while after that she heard her son's voice in the lounge room. The son's evidence was that he had come to the unit about twenty minutes before, had pressed its intercom buzzer, which the defendant answered repeatedly saying 'hello, hello', as though he could not hear the son, before, about one minute later, allowing the outer door to open. When the son got into the unit, he asked the defendant 'Where's Mum?' to which the defendant replied 'She is asleep. She had a drink and is sleeping. Sit down. Would you like a drink'. About twenty minutes later the son heard his mother screaming "Help me, help me'. He ran to the bedroom and found her propped on the floor, her dress up to her waist, her top pulled down, wearing no underwear, vomit everywhere, and hysterical. The defendant then walked into the bedroom and the plaintiff said to him '[D] I told you to help me'. The defendant's response was 'She is drunk, do not worry, she is all right'. He then spoke to Mr A in a language which the son did not understand. The son took his mother to the bathroom and tried to clean her up and calm her. He then made two telephone calls, one to a woman friend of his mother and the other to his sister whom he asked to telephone the police. The friend and her husband arrived about fifteen minutes later, the police five minutes after that. There was an altercation between the friend's husband and Mr A in which the defendant intervened by shaping up to the husband. Defendant's arguments on appeal; discussion. The trial judge's primary fact findings were not challenged in the appeal. Counsel correctly recognised that in this case any such challenge was precluded by the rules laid down in High Court decisions such as Devries v Australian National Railways Commission (1993) 177 CLR 472. The four grounds of appeal argued for the defendant fall into two parts. Grounds 2 and 3 were used to support an argument that the defendant was not liable for anything Mr A did to the plaintiff at least until the defendant looked into the room in which the rape was going on and then turned away closing the door. Grounds 4 and 5 were used to support an argument that the defendant could not be held liable either, for what happened after he had looked into and then left the room. The trial judge had held the defendant liable for what happened to the plaintiff both before and after his looking into the room where the rape wasgoing on. Her reasons for holding him liable before he went to the room were that he must have seen Mr A follow the plaintiff to the bathroom and must have realised that something was amiss when neither the plaintiff nor Mr [A] returned to the table area. The fact that thereafter the defendant, previously a solicitous host, made no inquiry as to the plaintiff's well being or Mr [A's] whereabouts reinforces my view that from the outset the defendant was well aware of the danger to the plaintiff. In giving her reasons for her opinion that the defendant was liable for what happened after he went to the bedroom, the trial judge first made it clear that she would not found her decision on acceptance that the plaintiff said to the defendant URJ D v C (Priestley JA) 5 "Please help me [D] I am going to die'. She then noted that it had been submitted for the defendant that if the plaintiff made no complaint to the defendant when he entered the bedroom, there was no reason for the defendant to think the intercourse he saw was non consensual. The trial judge did not accept this submission. She said she considered it 'unrealistic to say the least', and continued: If the defendant entered the bedroom in response to the plaintiff's cries as I consider that he must have and if as is undisputed the plaintiff had been vomiting in the bedroom then it is inconceivable that upon entering the bedroom the defendant could have formed a genuine view that there was nothing untoward happening in the bedroom. Whether or not a verbal complaint was made the defendant must have perceived that the plaintiff was pinned to the floor by Mr [A] and was in distress. Ihave earlier set out what I understand to be the totality of the factual findings from which the judge drew her conclusions that the defendant's liability began before and continued after his visit to the bedroom. I will dealfirst with the submissions for the defendant contending against liability after the defendant's bedroom visit. The substance of the defendant's submission about this was as already stated — what the defendant saw gave him no reason to think the intercourse was non-consensual. As to this, is seems to me that on the primary facts found by her Honour, the reasons she gave for her conclusion were appropriate and well-founded and fully justified her conclusion. It seems to me plain that on the facts found by the trial judge the finding of liability as from the point of the defendant's visit to the room is one that this court should not interfere with. The position is not so clear in regard to liability before the defendant went to the bedroom. It was submitted for the defendant with some force that there was insufficient material in the judge's factual findings to justify the inference she drew. It was submitted that neither in the factual findings I have set out, nor in the evidence from which they were drawn, was there anything to indicate to the defendant that Mr A, when, in the observation of the defendant, he followed the plaintiff towards the bathroom, intended to make sexual advances towards the plaintiff or, more importantly, that there was any reason for the defendant to think that Mr A might be intending to make sexual advances to the plaintiff, and, if she did not consent, to force intercourse upon her. In reply to this argument the plaintiff both relied on the trial judge's reasons and also submitted that the argument could not explain away two facts in particular and the inferences from them. The first was that the defendant had tried to hang up on the plaintiff's son. In isolation, this means little. However, it must be considered in light of the overall circumstances. The second fact was that at a very early point in the rape the plaintiff had screamed for help, calling 'Help [D]' with no response except that the radio outside the bedroom was turned up loudly. For the defendant it was sought to answer this by pointing out that the judge had found that the plaintiff had called for help, but not that she had been heard by the defendant. This might be a persuasive answer in the absence of the surrounding circumstances. However, as with the first fact presently under consideration, the surrounding circumstances add to its significance. Here, it is known that a rape was in progress before the defendant went to the bedroom, the plaintiff did cry for help, the defendant had been friendly with Mr A from childhood, the radio was turned up outside the bedroom immediately after 6 UNREPORTED JUDGMENTS the plaintiff screamed for help, after the defendant saw the rape in progress he did nothing, and the defendant took Mr A's part subsequently against reproaches by the plaintiff's friend directed to Mr A. In these circumstances the inference that the defendant heard the plaintiff's cries for help and ignored them becomes more probable and theturning up of the radio assumes an importance which it may not have had if the fact stood quite alone. When all the circumstances are taken into consideration together it seems to me the inference drawn by the trial judge that the defendant knew what was going on in the room well before his visit to it was properly open to her. I say this bearing in mind, as counsel for the defendant submitted must be done in cases such as this, what was said about onus and standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336. In view of the long standing relationship between Mr A and the defendant, and the judge's direct observation of their sizes, I do not think this court could or should interfere with the judge's finding that intervention by the defendant would probably have prevented the rape. The grounds of appeal relied on by the defendant all therefore, in my opinion fail. Duty of care. It may be that if there were no basis for the finding of a duty of care by the trial judge, this court should not accept the concession by counsel for the defendant in the appeal that, on facts found by the trial judge which could not be disputed in the appeal, the relevant duty of care existed. I have therefore thought it advisable to look at some of the authorities on the matter. These led me to think that the court should accept the concession, made as it was by competent counsel. This is not a pronouncement that it is my considered view that there was a duty of care in this case — the question was not argued — but that it was within the province of counsel to make theconcession and proper for the court to accept it. Questions of the general principles applicable in situations analogous to that in the present case are discussed in Smith v Littlewood's Organisation Ltd [1987] AC 241 and Husband v Dubose (1988) 531 North Eastern Reporter 2d Series, 600, which give access to the earlier authorities. They show that in general social hosts do not owe duties to social guests, but that circumstances may arise where the foreseeability of harm and the capacity of the host to prevent it combine to bring a duty of care into existence; see Jobe v Smith (1988) 764 P 2d 771 (Court of Appeals of Arizona) also see generally American Law Reports 3d Cases and Annotations Vol 10 (1966) at 619-660 and the August 1996 Supplement at 98-151, esp at 113 and 120, and, in Australia, the general observations of Dixon J in Smith v Leurs (1945) 70 CLR 256 at 262. Conclusion. In my opinion the appeal should be dismissed with costs. Beazley JA. I agree with Priestley JA. Appeal dismissed with costs. Counsel for the appellant: S ODGERS Solicitors for the appellant: MURPHYS LAWYERS INC Counsel for the respondent: C HARRIS Solicitors for the respondent: SIMPSON and HARRISON