Reported Decision : (2003) Aust Torts Reports 81-698 New South Wales Court of Appeal CITATION : GORDON v TAMWORTH JOCKEY CLUB INC [2003] NSWCA 82 HEARING DATE(S) : 7 April 2003 JUDGMENT DATE : 16 April 2003 JUDGMENT OF : Sheller JA at 1; Beazley JA at 44; Giles JA at 45 DECISION : 1 Grant leave to appeal; 2 Dismiss the appeal with costs. CATCHWORDS : Torts - Negligence - Occupier's liability - Duty of care to third parties - Injury caused by criminal assault of employee - Whether employer vicariously liable - Whether duty to take care to prevent deliberate harm - Whether breach of duty LEGISLATION CITED : Supreme Court Act 1970 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180, 17 October 2001 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Hargrave v Goldman (1963) 110 CLR 40 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 CASES CITED : New South Wales v Lepore (2003) 77 ALJR 558 Public Transport Corporation v Sartori [1997] 1 VR 168 Pyrenees Shire Council v Day (1998) 192 CLR 330 Scott v Davis (2000) 204 CLR 333 Smith v Leurs (1945) 70 CLR 256 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Wormald v Robertson (1992) Aust Tort Reps 81-180 Yewens v Noakes (1880) 6 QBD 530 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 PARTIES : Penni Bernadette Gordon - Appellant Tamworth Jockey Club Inc - Respondent FILE NUMBER(S) : CA 40505/02 COUNSEL : K Howe/T Bland - Appellant P Biggins - Respondent SOLICITORS : Maxwell & Co - Appellant Lyons Barnett & Kennedy - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 163/00 FILE NUMBER(S) : LOWER COURT Twigg DCJ QC JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40505/02 DC 163/00 SHELLER JA BEAZLEY JA GILES JA GORDON v TAMWORTH JOCKEY CLUB INC The appellant was assaulted on the premises of the respondent by the respondent's employee. Just before the assault, the employee had thrown a stubby at a possum which had then smashed near the appellant. The employee was drunk. An executive member of the respondent walked by and told the employee that he was drunk and an idiot. He gave no instruction to the employee nor did he tell him to leave. The executive member himself left the area before the assault. HELD (Per Sheller JA, Beazley and Giles JJA agreeing): 1. The vicarious liability of an employer extends only to situations where the act in question can be said to be within the scope of the employee's authority, where it falls within a mode of doing the authorised work, where it was an act the employee was employed to perform or where it was an act that was incidental to the employee's employment: Deatons Pty Ltd v Flew (1949) 79 CLR 370 foll; New South Wales v Lepore (2003) 77 ALJR 558 foll; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 referred to. The respondent could not be held vicariously liable for the assault by its employee on the appellant. 2. The landowner's duty as an occupier of the land did not extend to taking reasonable care to hinder or prevent criminal conduct of an employee that would injure persons lawfully on their premises in the absence of any indication that the employee in question proposed to commit a criminal act. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 foll; Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 foll. There was no evidence that at any time earlier during the day the assailant was likely to assault anybody. Legislation: Supreme Court Act 1970 Cases cited: Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180, 17 October 2001 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Hargrave v Goldman (1963) 110 CLR 40 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 New South Wales v Lepore (2003) 77 ALJR 558 Public Transport Corporation v Sartori [1997] 1 VR 168 Pyrenees Shire Council v Day (1998) 192 CLR 330 Scott v Davis (2000) 204 CLR 333 Smith v Leurs (1945) 70 CLR 256 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Wormald v Robertson (1992) Aust Tort Reps 81-180 Yewens v Noakes (1880) 6 QBD 530 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 ORDERS Grant leave to appeal; Appeal dismissed with costs. ****** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40505/02 DC 163/00 SHELLER JA BEAZLEY JA GILES JA Wednesday, 16 April 2003 GORDON v TAMWORTH JOCKEY CLUB INC Judgment 1 SHELLER JA: Introduction Penni Bernadette Gordon, to whom I shall refer as the appellant, seeks leave to appeal from the decision of His Honour Judge Twigg QC sitting in the District Court at Lismore on 7 February 2002 dismissing her claim against Tamworth Jockey Club Inc, to which I shall refer as the respondent. The hearing in this Court proceeded on the basis that if leave were granted the appeal would be heard concurrently. The respondent was the second defendant in the proceedings the appellant brought. She obtained a verdict against the first defendant, Reginald James Farrell, formerly known as Reginald Cook, to whom I shall refer as Mr Cook, but failed in her claim against the third and fourth defendants, Diane Shirdon and Gwen Nelson. The damages awarded against Mr Cook for the injuries the appellant suffered were $63,729.70, which explains the need for leave to appeal. The appellant did not challenge the amount of damages awarded; s101(2)(r) of the Supreme Court Act 1970. The appellant's case at trial 2 According to the trial Judge the appellant, Ms Shirdon and Ms Nelson had been friends since at least 1997 and remained so until the time of the trial. One or two days before the running of the 1997 Melbourne Cup on 4 November, Ms Shirdon and Ms Nelson asked the appellant to give them a hand with the catering at the Tamworth Races on 4 November. No remuneration or terms of employment were discussed. The appellant was asked to be there at 7.30 am. On 4 November she went to the course as asked and throughout the day helped Ms Shirdon and Ms Nelson by preparing and serving food and cleaning up. At about 10 pm that night the appellant and Ms Shirdon and Ms Nelson were seated on chairs on the concrete concourse at the back of the kitchen having a few beers. Mr Cook was employed by the respondent as a cleaner. He was using a machine to suck up rubbish and was clearing bottles and other rubbish nearby. The appellant says that without provocation, Mr Cook grabbed her from behind around her neck and held her in a strong grip for between 5 and 10 minutes. He then pushed her and her chair backwards causing her to hit her head on the concrete. Just before the assault Mr Cook had thrown a stubby at a possum. He was drunk. A person called Jack, who was an executive member of the respondent, walked by and told Mr Cook he was drunk and an idiot. He gave no instruction to Mr Cook nor did he tell him to leave. Jack left the area before the assault. 3 The respondent relied in its defence upon the decisions of the High Court in Deatons Pty Ltd v Flew (1949) 79 CLR 370 and Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254. The first of those cases stands for the proposition that, as an employer, the respondent was liable for the act of its employee, Mr Cook, in assaulting the appellant "only if the act is shown to come within the scope of the servant's authority either as being an act that he was employed actually to perform or as being an act which was incidental to his employment"; per Latham CJ at 378. In that case a barmaid, one of the defendants, employed at a hotel owned by the other defendant, after some provocation from the plaintiff threw into his face beer out of a glass and then threw the glass at him with the result that he lost the sight of one eye. The High Court held that the barmaid's act was an independent personal act which was not connected with or incidental in any manner to the work she was either expressly or impliedly authorised to perform. 4 In Modbury the High Court held that a landowner's duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the injured employee of a tenant whose injury resulted from the criminal behaviour of third parties on the land. Decision of the District Court 5 Judge Twigg said: "The majority judgment in Anzil emphasised that an occupier of premises owes some duty of care to lawful entrants that is to a person lawfully on the premises, who is injured. It was the scope of the duty of care and whether it extended to protecting such entrants from the criminal acts of third parties that was decided. The Chief Justice recognised that in exceptional circumstances an occupier may be liable for negligently failing to protect others against the criminal acts of third parties. These exceptional circumstances include such special relationships as employer and employee, school teacher and pupil, and bailor and bailee. Here the occupier undertakes the care supervision and control of the person so as to assume a particular responsibility for his safety. The Chief Justice adopted Justice Dixon's rule in Smith v Leurs (1945) 70 CLR 256 at 262. 'One man is under no duty of controlling another man to prevent him doing damage to a third. There are, however, special relations which are the source of a duty of this nature'. But there must be shown to be exceptional circumstances. The Second Defendant also relied on a pleading point, namely that there was nothing pleaded by the Plaintiff relating to exceptional circumstances; there was nothing in the pleadings suggesting that the Second Defendant had any means of controlling the First Defendant. Adopting the comment of Justice Heydon at para 47 in Ashrafi 'it was for the plaintiff to allege, and to seek to prove, matters of fact which would take the present proceedings outside the obstacles recognised in the Modbury case. It was the duty of the Plaintiff to plead a cause of action known to the law, or capable of succeeding at a trial.' Finally the Second Defendant submitted, again adopting Justice Heydon at paras 72 and 73 of Ashrafi that 'whether or not there was a reasonable foreseeable risk of injury, or even a reasonably foreseeable risk of the injury which in fact happened, the risk was not such as to answer the description employed by Justice Hayne ('a high degree of certainty that harm will follow from lack of action') or Chief Justice Gleeson) 'a high degree of foreseeability and predictability')." 6 Judge Twigg referred to the distinguishing features of the case which the appellant submitted distinguished it from the Modbury test or established exceptional circumstances within the Modbury principle, namely: (a) that Mr Cook was known to the respondent in that he was a cleaner employed by the respondent; (b) that there were patrons lawfully on the racecourse on 4 November 1997; (c) that Mr Cook had been drinking in excess of twenty full strength beers and that he acted aggressively; (d) that an official of the respondent observed the conduct of Mr Cook acting aggressively but took no action to supervise him. It was said that the respondent had a duty to prevent Mr Cook doing violent harm to a third party. 7 Judge Twigg was satisfied that on 4 November 1997 Mr Cook was employed by the respondent as a cleaner at its premises at Tamworth Racecourse but held that the respondent was not responsible for the assault by Mr Cook on the appellant. That assault was beyond the terms of his employment. It was not within the vicarious liability of the respondent for its employee, Mr Cook, within the principles of Deaton v Flew. His Honour was not satisfied that the respondent was responsible for the assault within the principles set forth in Modbury. "The circumstances outlined by the appellant that the respondent was aware of Mr Cook or that he was drunk and acting aggressively whilst at work, were not sufficient to distinguish the case from the principle set out in Modbury." There were no exceptional circumstances nor had the appellant pleaded any matters that would amount to exceptional circumstances to extend the liability of the second respondent for the assault by Mr Cook on the appellant. Appellant's argument 8 The appellant took this Court in some detail to the evidence to support the submission that Mr Cook had acted aggressively in the presence of the respondent's official before he assaulted the appellant. 9 Shortly before the incident the appellant had seen Mr Cook vacuuming up and yelling at his brother who was picking up cans. Her evidence continued: "A. Mr Cook – Mr Farrell stopped his machine and he walked over towards us, myself, Di and Gwen, he then threw a stubby up into the rafter at a possum and as much as I recall, his name was Jack -- HIS HONOUR: Q. What, the possum? A. No. RADBURN: Q. Just pause there. He threw-- A. A stubby. Q. At the possum? A. Yes. Q. What happened to the stubby? A. It smashed on the ground. Q. Were you still sitting down on the chair with Gwen and Di at that stage? A. Yes. … HIS HONOUR: Q. What had happened to Donna and the other girls, Donna, Shirley and Pearl, the workers, what had happened to them? A. They went home. RADBURN: Q. When the glass smashed on the floor? A. Yes. Q. Sorry, on the concrete, did – where did – how far away from you was Reggie at that stage or Mr Cook at that stage? A. In a matter of feet. Q. Did you see somebody walk past? A. Yes. Q. Did you recognise who that person was? A. Jack. Q. Did you recognise other than his name, who he was? A. The secretary of the racecourse. Q. Secretary? A. Yes. … Q. Madam, did that person then say something to Mr Cook? A. Yes, after the stubby was thrown he said 'Reggie you drunk, you're a bloody idiot.' Q. What did he then do? A. 'I'll leave it with youse' and went to his—' … Q. What then happened? A. Reggie then come around and sat down between Gwen and Di, we then started talking about locking up, what was in the freezer and then Reggie started talking about girls and us girls and a bit of – said something like 'you girls like a bit of mutt,' HIS HONOUR: Q. Pardon me. What was the word? A. Mutt. Q. M U T T as you understood it? A. Yes. Then a bit more conversation went on that I can't recall every word of it, Reggie Cook then got up and he come towards – he stood up and he come towards – Gwen told him to go and start his engine up after he'd said about the mutt, then he got up and walked towards me and put his arm around my throat and he held me by my throat and then Gwen and Di come straight over to me and they tried to pull him off with me saying 'please let me go' and they were yelling 'let her go' and then he wouldn't let go of me and then he – we couldn't get his arm off my neck and then he flung me back on to the concrete whilst still in the chair and then the girls barricaded him away from me and I rolled over to the other way and then Diane said to me 'run for the car', so I ran over to the front seat of the car and I got in there and locked the door and Reggie Cook then come over to the car and he said that 'I want her.' Q. He said what? A. 'I want her, I'm going to kill her.' Q. Who else was there? A. Diane and Gwen. Q. They were alongside the car were they? A. Yes, they were trying to barricade Reggie from me. Q. What did he do? A. He kept going round and round the car and trying to open the doors that I'd locked and then just banging the car and I hid down on the console of the car, underneath the front seat as much as I could and the girls then walked over to the dining room to get Reggie away from the car and Reggie followed them over there and he started yelling to Gwen about putting the wrong rubbish in the wrong bag and then Reggie went back over, he was back over into the – down the kiosk area and then Diane was at the door of the car and Gwen was at the door of the car and she said 'come and get in the dining room while he's not watching' – … Q. … Did you see the vacuum cleaner in operation later that night with Mr Cook? A. Yes. Q. When? A. When we were in the front of the dining room for – we were in there for about 45 minutes and then we were watching where Reggie Cook was going and he walked back over to the machine, he picked up a broom and started doing it and then he started up his machine again and we knew then that it was safe to get out of the dining room and get into the car. Q. He picked up – he turned his machine on, was that the same vacuum cleaner? A. That was the vacuum. … Q. In terms of Mr Cook, are you able to tell his Honour how large he is, in your estimation? A. He's about 6 foot 2, 6 foot 3, about 22 stone. … RADBURN: Q. Miss Gordon, I want to ask you before I go in respect of your injuries, a couple of matters about what you were telling us this morning in relation to Mr Cook and the assault, when you observed Mr Cook come to sit down near where you and the 3rd and 4th defendant were seated after they came back from the trots, did you observe anything about Mr Cook's demeanour? A. He was smelling of alcohol, slurring his words and just drunk and-- Q. Had you seen – you told his Honour that you'd been at the premises since 7am or 7.30am in the morning I think your evidence was, during the course of that day, had you seen Mr Cook at any time? A. Yes. Q. Where was that? A. In the takeaway food department. Q. Where you were working? A. Working, yes. Q. What happened on that occasion, did you speak to him or not? … Q. You observed him come in to where – into the kiosk where you were working? A. Yes. Q. Were you present when he was there? A. Yes. Q. Did you see him standing in the kiosk? A. Yes. Q. Did you see someone speak to him? A. Yes. Q. Who was that? A. Diane. Q. Did you hear what she said to Mr Cook? A. Yes. Q. What did she say to Mr Cook? A. She asked him to 'leave the room now', because he was drinking. OBJECTION (CRITTLE). Q. You look somewhat troubled Miss Gordon, are you all right? A. Yes. Q. Sorry? A. Yes. Q. Did you hear Diane say anything else to him when she said 'would you leave'? A. Yes. Q. What did she say? A. 'You're drinking.' Q. Is that all you heard her say? A. And 'leave, please leave.' Q. Did he leave? A. Yes. Q. Did you make an observation of him at that time? A. Yes. Q. What did you observe about him? A. That he was drinking, he was smelling of alcohol. Q. Did you then go back to work? A. Yes. Q. At about what time was that? A. I'm not real sure of the time. Q. Had the races commenced by that stage? A. Yes. Q. Are you able to distinguish as to whether it was morning or afternoon, that is before midday or after midday? A. After midday. … HIS HONOUR: Q. Pardon me ma'am, I thought you said it was outside the bar area whee you were sitting on some chairs? A. It is, but it's under cover. CRITTLE: Q. And that's where this gentleman, Jack, was walking when Reg threw the bottle, is that right? A. Yes. Q. And you knew this man Jack to be an official of the Tamworth Jockey Club, although you can't tell us exactly what his role was? A. No. Q. But you knew him to be an official? A. Yes. Q. And you heard him speak to Reg? A. Yes. Q. And he said words to the effect of, 'You're drunk, wake up to yourself'? A. Yes. Q. Is that right? A. 'You're drunk'. … Q. Now Reg Cook, Reg Farrell, he's a rather unfortunate individual is he not? A. Yes. *Q. Some people would say he's what, a sandwich short of a picnic? A. Yes. Q. A little bit slow, is that right? A. Yes. Q. And that's – that condition appeared to be exacerbated on that evening did it, by the drink he'd consumed? A. Yes. Q. And it was pretty obvious to you, as soon as you started helping him that he was well and truly affected wasn't it? A. Yes, I noticed he was affected. Q. So you'd have been on notice that it would have been foolish to engage in an argument with a man who was a bit slow to start with and had been obviously proving himself to be a fairly shrewd judge of a schooner on the day? A. Yes. Q. It would have been a silly thing to argue with a man in that condition wouldn't it? A. I didn't argue with him, no. Q. So you say. In any event, for no good reason you say, he suddenly grabbed you, is that right? A. Yes. Q. And put you in a headlock, as it were? A. Yes. Q. And kept you in a headlock for about – up to ten minutes? A. Five or ten minutes, it seemed like forever. Q. Well I don't want to go over it, because it obviously distresses you and you were pushed over, is that right? A. Yes. Q. And while this was going on these two good ladies were doing their utmost to save you, weren't they? A. Yes, yes. Q. I mean this is a huge Goliath of man, isn't he? A. Yes." The question I have asterisked in the passage of cross-examination was insensitive and improper. It should not have been asked. Having been asked it should have been immediately rejected. Discussion 10 In Deatons v Flew Dixon J said at 381-2: "The general and somewhat indefinite position was relied upon that the barmaid was there to deal with customers and with situations and this was the manner in which she dealt with the plaintiff and the situation which he caused. It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master (see Lloyd v Grace, Smith & Co [1912] AC 716; Uxbridge Permanent Benefit Building Society v Pickard [1939] 2 KB 248. The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid." 11 The vicarious responsibility of an employer for the acts of an employee in the context of an employed school teacher who had sexually abused a pupil has recently been discussed by the High Court in New South Wales v Lepore (2003) 77 ALJR 558. At 569 [42] Gleeson CJ said: "The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907 at 83 and in later editions: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised acts as to be a mode of doing it, but is an independent act." 12 At 571 [52] Gleeson CJ said: "Although the hotel proprietor in Deatons Pty Ltd v Flew owed a duty of care to customers at its premises, the barmaid's responsibilities were not protective." I interpolate, nor were Mr Cook's responsibilities protective. 13 At 583 [130] – [131] Gaudron J said: "[130] The only principled basis upon which vicarious liability can be imposed for the deliberate criminal acts of another, in my view, is that the person against whom liability is asserted is estopped from asserting that the person whose acts are in question was not acting as his or her servant, agent or representative when the acts occurred. And on that basis, vicarious liability is not necessarily limited to the acts of an employee, but might properly extend to those of an independent contractor or other person who, although as a strict matter of law, is acting as principal, might reasonably be thought to be acting as the servant, agent or representative of the person against whom liability is asserted. [131] Ordinarily, a person will not be estopped from denying that a person was acting as his or her servant, agent or representative unless there is a close connection between what was done and what that person was engaged to do." 14 At 594 [196] Gummow and Hayne JJ said: "[196] As was pointed out in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, any consideration of vicarious liability must begin by accepting, first at 37 [35] that '[a] fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law' and, secondly, at 37 [34] that 'the modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy'. The content of rules governing the imposition of vicarious liability has changed and developed over time, although the verbal formulae applied to describe those rules have remained largely unchanged. Perhaps the largest of the changes that have occurred has been in the content given to 'control' as the factor which distinguishes a relationship of employer and employee from a relationship of principal and independent contractor Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis at 40-1 [43]-[44]." 15 Referring to part of the passage from the judgment of Dixon J in Deatons v Flew which I have quoted, their Honours said at 601 [231]: "…there are two elements revealed by what his Honour said that are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having." 16 Mr Cook's assault upon the appellant was not done in the intended pursuit of the respondent's interest or intended performance of his employment or in ostensible pursuit of the respondent's business or apparent execution of any authority which the respondent held out Mr Cook as having. At 602 [239] Gummow and Hayne JJ said that for the purposes of that case it was enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons v Flew to which reference has been made. 17 Kirby J was of the opinion that the more recent analysis by the High Court of the issue of vicarious liability, notably in Scott v Davis (2000) 204 CLR 333 at 369 and Hollis v Vabu Pty Ltd, suggests that Australian law has already moved in the direction now favoured by the courts in the United Kingdom and Canada thereby embracing liability even for acts the employer has not authorised "provided they are so connected with acts which the employer has authorised, that they might rightly be regarded as modes – although improper modes – of doing them." This has led in both Canada and the United Kingdom to a greater examination of the connection between the enterprise and the acts alleged to constitute wrong doing for which the employer should be liable; 616 [315] – [316]. To use language taken from the Canadian and United States cases in Hollis v Vabu Pty Ltd at 40 [42] it could not, in my opinion, be said that Mr Cook's assault on the appellant was conduct closely tied to a risk that the respondent's enterprise had placed on the community or an accident which might fairly be said to be characteristic of the respondent's activities. 18 Callinan J at 620 – 621 [342] said that deliberate criminal misconduct lies outside, and indeed usually will lie far outside the scope or course of an employed teacher's duty. 19 In the present case the respondent cannot be held vicariously liable for the assault by Mr Cook on the appellant. That assault was not within the scope of Mr Cook's authority nor could it be described as a mode of doing the cleaning work he was authorised to do. It was not an act he was employed actually to perform nor was it an act that was incidental to his employment. Counsel for the appellant seemed to accept this. 20 Counsel's submission proceeded by seeking to distinguish the present case from Modbury. The appellant's case was that the respondent was the occupier of the area where the assault took place, that the assailant was its employee and that through its official it became aware before the assault that the assailant was drunk and aggressive. The appellant did not prove when Mr Cook began working that day. It seems that he had begun drinking beer by mid-day or shortly thereafter. It can be accepted that before the assault he had drunk a good deal of beer. However, despite that so far as appears, he continued to do the cleaning work for which he was employed and there is no evidence of any complaint about his behaviour as the result of drinking alcohol or because he was aggressive. In short, the first indication of aggressiveness that the appellant relied on was the act of throwing a stubby at a possum. What happened to the possum is not revealed but the stubby landed on the ground and was smashed. This act was seen both by the appellant and by the respondent's official and led to the respondent's official saying what he did. Mr Cook went and sat beside the appellant and was sitting there together with Ms Shirdon and Ms Nelson. There was no evidence or indication from anything said or done that any of those present apprehended violence by Mr Cook. So far as the evidence goes, the assault upon the appellant was sudden and unexpected and possibly followed the rebuff of what might have been a suggestion of a sexual nature made by him to the appellant. 21 In Modbury at 291 Hayne J said: "[108] The appellant was alleged to owe a duty to the first respondent because the appellant occupied, and thus controlled, the land on which the first respondent was assaulted. In particular, it was the appellant's ability to control the lighting of that land which was central to the respondents' case. The appellant could, however, exercise no control over those who assaulted the first respondent. The lack of ability to control the assailants is important in considering the question of causation. It is also important in considering the question of duty. … [109] The duty which the respondents alleged that the appellant owed must be understood to have been a duty to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises. The particular step to which the respondents point as being reasonable was leaving on the car park lights. The particular criminal conduct of which complaint was made was assault occasioning bodily harm to the first respondent. The duty alleged cannot, however, be confined by those two features. If the appellant owed the first respondent a relevant duty of care, it was to take whatever steps were reasonable in all the circumstances to hinder or prevent any criminal conduct of third persons which injured the first respondent or any person lawfully on the premises. But the acts of those third parties resulted from the choices which they made. Moreover, they were choices which were, as I have said, not necessarily dictated by reason or prudential considerations. It was, therefore, a duty to take reasonable steps to attempt to affect the conduct of persons whom it had no power to control. No such duty has been or should be recognised. [110] Some emphasis was given in oral argument to the proposition that an employer may owe an employee a duty to take reasonable care to prevent the employee being robbed. If that is so, however, it is because the employer can prevent the employee going in harms way; compare Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070. The employer has the capacity to control the situation by controlling the employee and the system of work that is followed. The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken; Kondis v State Transport Authority (1984) 154 CLR 672." 22 Later in his judgment at 293-4, Hayne J said: "[117] 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; compare Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, Public Transport Corporation v Sartori [1997] 1 VR 168." 23 Chordas v Bryant concerned a plaintiff who, as a patron in the bar of a hotel, was struck by another patron and suffered injury. The plaintiff sued the defendant as the occupier and licensee of the hotel. The assailant was affected by intoxicating liquor and well affected when the assault took place. The plaintiff was speaking to him. The plaintiff made offensive comments to the assailant. He was told to go away and then came back and made similar offensive remarks. The assailant and his companions endeavoured to ignore the plaintiff. The plaintiff who had consumed about five beers again approached the assailant's group and made more offensive remarks and poked the assailant in the chest causing him to fall off balance and bump into a table spilling some drinks. The assailant was annoyed and punched the plaintiff with his right hand to the right side of the plaintiff's face. The assailant was well under the influence of intoxicating liquor. The assailant was not known to be of violent or aggressive disposition or troublesome and before the incident was not behaving in such a way as to make his mere presence an obvious danger to the other patrons in the bar. The trial Judge was not satisfied that there was any breach of the general duty of care owed by the occupier and licensee of the hotel to the plaintiff. The trial Judge found that the punch by the assailant could not have been reasonably anticipated by the management or bar staff. 24 On appeal the members of the Full Federal Court (Davies, Kelly and Neaves JJ) said at 97-98: "However, an hotel's duty to protect one patron from a foreseeable risk of injury from the acts of another patron necessarily involves consideration of a duty different from the duty of care arising from risks of injury from an inanimate object, such as the sign considered in Wyong Shire Council v Shirt (1980) 146 CLR 40 or the flagpole in Commonwealth v Introvigne (1982) 150 CLR 258. See, for example, the examination undertaken by the House of Lords in Home Office v Dorset Yacht Co [1970] AC 1004, where the duty of care with respect to the control of Borstal boys was considered; see also the examination in Smith v Leurs, in which Latham CJ, Starke, Dixon and McTiernan JJ examined a parent's duty of care in the control of their children. Dixon J said (at 261-2): 'But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of the duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others. … The standard of care is that of the reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected.' " 25 Having put aside any knowledge of or perceived danger of the assailant, the Federal Court concluded [100] that the appellant could succeed only if it be found that the hotel breached its duty of care to other patrons by permitting King to remain in the bar when he "was well affected by intoxicating liquor". "However the trial judge did not conclude that the mere fact that King was well affected by liquor made it reasonably foreseeable to the bar staff that he might harm another person or that a reasonably prudent hotel manager would have taken steps to remove King from the bar or would have ceased serving him liquor before he became well affected by it." 26 Moreover the Court was not persuaded (102) that there was any error in the trial Judge's view that the incident occurred simply because of the appellant's provocation of King and that it was not established that the incident would not have occurred but for King's consumption of liquor. 27 We were referred to Wormald v Robertson (1992) Aust Tort Reps 81-180. In that case the first defendant had struck the plaintiff on the face and head with a glass beer jug in the course of a function in the respondents' hotel. The principal allegation against the respondents was that they should have acted to exercise control and impose some discipline upon the assailant, who had been causing trouble, by ejecting him from the hotel if necessary either with or without the aid of police. The trial Judge found that the assailant had been misbehaving for an hour or more before the assault upon the plaintiff. He had jumped on tables in the lounge where the function was being held, caused breakage of glass and had been molesting other patrons there present. Two particular complaints had been conveyed to one of the respondents about thirty minutes before the assault but that respondent took no action. 28 Just before the assault occurred a female friend of the plaintiff's was walking towards the plaintiff to talk to him when she was grabbed by Robertson. This caused the plaintiff to call out to the assailant and then to go over and remonstrate with him when was hit with the jug. The trial Judge said that it was very obvious that Robertson would become, merely with the passing of time and his unchecked or unconstrained habits and conduct, the source of some injury or damage to some person in or about the function. Two witnesses had warned one of the respondents that Robertson was a source of trouble. The Queensland Court of Appeal was of opinion that a "powder keg " situation existed and that trouble should reasonably have been anticipated. No significant new factor intruded to distort the operation of predictable causes in the function room on that night (61 569). The Court upheld the appeal distinguishing Chordas v Bryant and awarded damages to the plaintiff. 29 Counsel for the appellant accepted that the present was not "a powder keg" situation. 30 The second decision referred to by Hayne J was Public Transport Corporation v Sartori. This was a case in which the respondent was injured when he was attacked at about 1 am by an intruder in the car park provided by his employer. The car park was in the open air and enclosed by perimeter fencing topped by barbed wire. There was security lighting and an automatically activated floodlight. There was a lock on the gate to which each employee had a key. There was a sign on the fence near the gate "Keep Gate Locked at All Times". The gate was often left unlocked. The Victorian Court of Appeal held that the employer's obligation was to provide a proper system of work extending to securing the personal safety of the employees. In circumstances where an employer provided an apparently secure car park for the use of its employees, expecting them to enter and leave the car park in the dead of night, proximity, foreseeability of injury from an intruder and the existence of a duty of care were all readily apparent. 31 In Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180 (17 October 2001) a function described as a debutante ball was taking place when violence erupted and a senior constable of police who had been sent to the premises was savagely assaulted in the car park by some of the patrons. The constable sued the club at whose premises the function was taking place. Apparently before this attack there were minor scuffles or fights during the night. Some of the patrons were described as basically looking for trouble. Some had too much to drink. One man stood out as an aggressor. He, together with a group, was showing signs of aggression. As the night wore on, feuding between different factions broke out. A lot of men were described as getting cocky because of alcohol. By the time the police arrived there were thirty people fighting on the dance floor. Ultimately, about four police officers were taken to hospital. It was accepted that the club had made no attempt to contact police or to warn the plaintiff police constable or his companion between the time when they had left the club after a walk through and the time when the brawl broke out. 32 In its submissions the Club relied upon Modbury. In a joint judgment the Victorian Court of Appeal (Brooking, Charles and Chernov JJA) said that the facts in the case before them bore no resemblance to those in Modbury, "34 … The criminals in Modbury were in no sense under the control of the defendant. Its supposed negligence lay in its failure to light the car park, the lights having evidently been turned off at 10 pm, half an hour before the attack. 35 Here the ruffian Holton could not properly be described as not under the control of the club. It did in fact fail lamentably to control him, and this is the only sense in which he was not under its control. He was allowed to misbehave, out of control, when he should have been kept under control by the Club, which had invited him on to its premises and allowed him to remain there for the purposes of its business (for present purposes) of conducting social functions on its licensed premises at which it sold liquor to the patrons. … 37 It is difficult to imagine a greater contrast between the facts of the present case and those of Modbury . The Club concedes it owed a duty of care to patrons to protect them against attacks by other patrons on the premises and that if the plaintiff in the car park here had been, not a member of the police force, but a patron, then no question would have arisen about the existence of a duty of care in relation to the kind of harm done." 33 In the circumstances the duty of care relied upon by the plaintiff was one to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises. No such duty should be recognised where the person said to be under a duty to attempt to affect the conduct of others had no power to do so. After referring to Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 the Court of Appeal said: "In Modbury the occupier of a shopping centre was under no relevant duty of care to an employee of a video rental store attacked at night by three assailants in the unlit car park. Those three criminals were in no sense under the defendant's control. Its supposed negligence lay in its failure to light the car park, the lights having been turned off shortly before the attack. In the present case Holton was, as we have said, not under the control of the Club only in the sense that it failed in fact to control him." (43) 34 Later at 45 their Honours said: "The Club was in a position to control Holton; a special relationship, and prima facie a relevant duty of care, existed. The case is also one of the occupier's failure to control access to or continue presence on the premises, a category reserved by Hayne J for future consideration." 35 In the present case the control relied upon was the employer's control of its employee. Control in that sense may mean no more than the lawful authority to command; Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561; see also Stevens v Brodribb Sawmilling Co Pty Ltd at 29; Hollis v Vabu at 40-41. At 571 the majority of the Court quoted what was described as the often repeated statement of Bramwell LJ in Yewens v Noakes (1880) 6 QBD 530 at 532-3: "A servant is a person subject to the command of his master as to the manner in which he shall do his work." The employee is no longer the subject of such lawful command once the employee moves outside what is the scope of his employment or what is incidental thereto. For present purposes however one can accept that while Mr Cook remained on the premises apparently either doing his cleaning work, which he resumed after the assault, or remaining there until he left to go home, he was in that sense under the control of the respondent. 36 Ashrafi Persian Trading Pty Ltd v Ashrafinia concerned an assault upon the respondent by an unknown person while the respondent was sleeping on the ground floor of a motel owned and operated by her family. Her assailant struck her on the head with an iron bar through a small gap in a sliding window. There was an internal locking device on the sliding window as well as a short stick placed in the runner of the window to prevent its being open more than a few centimetres. The respondent sued the family company that owned the motel, claiming its failure to implement satisfactory security measures constituted a breach of the duty of care it owed to her. The trial Judge held that the appellant's failure to avert the danger with adequate security measures rendered it liable in negligence. In allowing the appeal Heydon JA, with whose judgment Mason P and Handley JA agreed, discussed the relevance of the Modbury doctrine. At 68,333 [61] Heydon JA said: "But the general immunity in tort, as distinct from contract, can be illustrated in various ways. An employer owes no duty to an employee to prevent a third party stealing the employee's property ( Deyong v Shenburn [1946] KB 227; Edwards v West Herts Group Hospital Management Committee [1957] 1 WLR 415 at 420 and 422) . An employer owes a duty not to leave a drum filled with highly inflammable vapour in a place where it can easily be accidentally ignited, but no duty to take precautions against an arsonist workman igniting it deliberately ( Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 at 31-32). While the occupier's duty is to protect not only the visitor's body but also the visitor's goods from damage due to defects in the premises, the occupier is under no duty to protect goods from the risk of theft by third parties ( Tinsley v Dudley [1951] 2 KB 18). The duty of occupiers to prevent a property occupied from being used to commit crimes injuring others has been narrowly described in recent cases ( P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342; Smith v Littlewoods Organisation Ltd [1987] AC 241; WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) Aust Torts Reports 81-473 43 NSWLR 338). In short, 'duties to safeguard from harm deliberately caused by others are unusual' ( Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368 per Lord Hoffmann)." 37 Heydon JA quoted from the judgment of McHugh J in Pyrenees Shire Council v Day (1998) 192 CLR 330 at [101] – [102] pointing out the historical distinction at law between causing damage by a positive act and "causing" damage by a failure to act. "A special relationship may arise from the ownership, occupation or control of land or chattels, from the receipt of a benefit or from an undertaking, assumption of responsibility or invitation which might induce the person harmed to act or to refrain from acting." 38 In Hargrave v Goldman (1963) 110 CLR 40 at 66-67 Windeyer J said: "The trend of judicial development in the law of negligence has been … to found a duty to take care either in some task undertaken, or in the ownership occupation, or use of land or chattels. The occupier of land has long been liable at common law, in one form of action or another, for consequences flowing from the state of his land and of happenings there, not only to neighbouring occupiers, but also to those persons who come upon his land and those who pass by. And, as I have remarked elsewhere, the tendency of the law in recent times has been to lessen the immunities and privileges of landowners and occupiers and to increase their responsibilities to others for what happens upon their land." 39 Heydon JA at 64 referred to five relationships in which a party has a duty to protect another from the criminal conduct of a third, the duty of employers to take reasonable care to protect their employees from the criminal acts of third parties, the duty of schools to their pupils to prevent crimes being committed against them at school or in the course of journeys to or from school, the duty of bailees of chattels to the bailors to take reasonable care to keep the chattels safe from the crimes of third parties, the duty of parents to take care to prevent their children injuring third parties by their conduct, including criminal conduct, and in some circumstances the duty of gaolers to take care to prevent prisoners being injured in gaol. His Honour said that these exceptions could be tied back to the control criterion, which in significant measure underlies the main principle (65). In the case of the employer, the control is that which the employer has over the incidence of the relationship, but the list of categories is not closed nor are the boundaries of each particular category fixed. 40 Heydon JA turned to consider whether any exception to the Modbury doctrine was available. The third of those avenues was drawn from the passage in the judgment of Hayne J upon which the appellant relies in this case. Heydon JA referring to the cases in the footnote to the passage in Hayne J's judgment said: "The cases referred to in footnote 124 are Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1977] 1 VR 168. Chordas' case concerned the duty of a hotel keeper towards patrons and in particular the duty of a hotel keeper to eject intoxicated patrons who might cause harm to others. (See also Wormald v Robertson (1992) Aust Torts Reports 81-180; Oxlade v Gosbridge Pty Ltd (NSWCA, unrep, 18 December 1998). Sartori's case concerned the duty of an employer to an employee to prevent the employee being injured on premises which were supposed to be closed so as to exclude members of the public." 41 The plaintiff in Ashrafi did not submit that she fell within this category. His Honour observed this was understandable "since the present circumstances are quite remote from the authorities referred to by Hayne J." 42 If the respondent was not vicariously liable for Mr Cook's assault because it was outside the scope of his authority, it is difficult to see how the relationship between the respondent and Mr Cook as employer and employee is relevant. In principle, the situation is no different from a case where a member of the public lawfully on the premises and having consumed a considerable amount of alcohol suddenly and unexpectedly assaults another person on the premises. In such a situation, in order to recover in negligence the person assaulted must rely upon a general duty owed by the respondent to persons lawfully on the premises to take reasonable care to protect them from criminal activities such as assault; see per Hayne J 205 CLR at 290. What is required must be measured against what is practicable; Chordas v Bryant. Assuming such a duty to be owed the only evidence that there was a breach in this case was the evidence of what occurred immediately before the assault and the assault itself. There was no evidence that at any time earlier during the day Mr Cook had given any indication that he was likely to assault anybody. The case is distinguishable from those in which members of the public are invited by the occupier on to the premises in such numbers and in such circumstances that crowd control including the removal of people behaving aggressively is essential to the safety of others lawfully on the premises. This case falls within the Modbury principle that an occupier is not responsible for the criminal activities of people on the premises certainly in the absence of any indication that those persons proposed to commit a criminal act. In my opinion it is nothing to the point that the respondent's official noticed shortly before the assault that Mr Cook was drunk and saw him throw a stubby at a possum when he was near the appellant. Order 43 I would grant the appellant leave to appeal but dismiss the appeal with costs. 44 BEAZLEY JA: I agree with Sheller JA. 45 GILES JA: I agree with Sheller JA. ********** Last Modified: 04/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.