New South Wales Court of Appeal CITATION : Canterbury City Council v Petrik; Canterbury City Council v Farrugia [2002] NSWCA 52 FILE NUMBER(S) : CA 40589/00; 40590/00 HEARING DATE(S) : 20 February 2002 JUDGMENT DATE : 6 March 2002 Canterbury City Council PARTIES : Peter Petrik Matthew Farrugia JUDGMENT OF : Beazley JA at 1; Heydon JA at 33; Mathews AJA at 34 LOWER COURT JURISDICTION : District Court LOWER COURT 2091/99; 2090/99 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER : COUNSEL : Appellant: M T McCulloch Respondents: C P Locke SOLICITORS : Appellant: Phillips Fox Respondents: Velleley & Associates CATCHWORDS : Negligence - Breach of Duty LEGISLATION CITED : District Court Act 1973 (NSW); s 127(2)(c)(i) Evidence Act 1995 (NSW); s 38(1)(b) CASES CITED: Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 176 ALR 411 DECISION : Appeal allowed IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40589/00; DC 2091/99 CA 40590/00; DC 2090/99 BEAZLEY JA HEYDON JA MATHEWS AJA Wednesday, 6 March 2002 CANTERBURY CITY COUNCIL v PETRIK CANTERBURY CITY COUNCIL v FARRUGIA FACTS The respondents, Peter Petrik and Matthew Farrugia were awarded damages of $10,250 and $12,000 respectively for injuries sustained in a brawl at an Aquatic Centre owned and operated by the appellant Council. The respondents were at the Aquatic Centre having a scuba diving lesson. There was a group of about 10 to 15 young men who were also using the pool. The group of young men were creating a nuisance by dive bombing and jumping around near the diving lesson. They were also directing verbal abuse at the respondents. Prior to the brawl erupting a lifeguard on duty (Mr Brock) had warned the group on two separate occasions that if they continued their behaviour they would be ejected from the pool. Mr Brock had also called the local police station at Campsie approximately 20 minutes before the brawl. As the brawl commenced the police were again called (as they had failed to respond to the first call) this time on the emergency '000' number. Mr Brock gave evidence that calling the police was in accordance with the practice that had been adopted when trouble had occurred at the Aquatic Centre in the past. He said that his experience was that the police generally responded within 5 to 10 minutes of being called. Christie DCJ held that an occupier of an Aquatic Centre was under a duty to ensure that people were able to use the facility without a fear and a likelihood of physical harm coming to them by reason of the presence of persons such as a large group of young men on the premises. He held that there was a very clear breach of this duty. His Honour concluded that the appellant had not called any evidence to indicate what steps it took as the situation was arising and escalating. HELD per Beazley JA (Heydon JA and Matthews AJA agreeing) (i) His Honour erred in finding that the appellant had breached its duty of care. His Honour either overlooked significant portions of Mr Brock's evidence, or if he disbelieved Mr Brock in important respects, he failed to express a finding to that effect. (ii) Accepting Mr Brock's evidence, in the circumstances of the case there was no breach of duty by the appellant. (iii) As a result of the finding in respect of breach of duty it was unnecessary to determine whether his Honour's statement of the duty owed in the circumstances was correctly articulated. ORDERS (i) Appeal allowed; (ii) Verdict, judgment and orders of the trial judge set aside; (iii) Verdict for the defendant/appellant in each case; (iv) Each party to pay its and his own costs of the trial and of the appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40589/00; DC 2091/99 CA 40590/00; DC 2090/99 BEAZLEY JA HEYDON JA MATHEWS AJA Wednesday, 6 March 2002 CANTERBURY CITY COUNCIL v Peter PETRIK CANTERBURY CITY COUNCIL v Matthew FARRUGIA JUDGMENT 1 BEAZLEY JA: These are two appeals from decisions of Christie DCJ in which his Honour held that the appellant Council breached its duty of care to the respondents when they were injured in a brawl at an Aquatic Centre owned and operated by the appellant. The trial judge awarded damages to the respondent Matthew Farrugia in the sum of $10,250 and to the respondent Peter Petrik in the sum of $12,000. 2 The appeal is brought against his Honour's findings of the existence of a duty of care in the circumstance and/or his finding of breach of duty. The appellant also alleges that his Honour overlooked or ignored evidence, relevant to the question of breach, given by a lifeguard on duty at the Centre at the time of the incident. 3 On 12 December 1998 the respondents were at the Canterbury Aquatic Centre having a scuba diving lesson, which was being conducted in the deep end of the 50m pool. They were injured when they were assaulted by a group of about 10 to 15 young men who were also using the 50m pool. The young men responsible for the assault were creating a nuisance by dive bombing, jumping around, splashing and so forth near where the lesson was being conducted. After a while the young men commenced to verbally abuse those engaged in the diving lesson. The abuse was serious and provocative in that there were threats to kill and some of the abuse was racially based. One such example, given in the evidence of the respondent Matthew Farrugia was: "… get back to the beach you fucking Aussies, don't fuck with the Lebs ... We'll kill you, you fuck with the Lebs, we're the kings." One member of the group directed abuse directly at Matthew Farrugia, saying he was going to shoot him. Others were making a gesture as if they were going to cut his throat. 4 The diving instructor decided to stop the lesson and the participants began withdrawing from the pool. Matthew Farrugia swam to the shallow end of the pool and got out. He said that as soon as he got out he was attacked. He managed to get his scuba gear off his back and said that as soon as he did so he was attacked again repeatedly. 5 The respondent Peter Petrik got out of the pool at the deep end and commenced to walk towards the shallow end. As he was walking alongside the pool he said that he "copped a bit of verbal". He could see Matthew Farrugia being head-butted and punched and he went over to help him. He said that he was also verbally abused and assaulted and then, about five or 10 minutes later he was hit on the head by a garbage bin which had been thrown by one of the group from the grandstand which ran parallel to the main pool. 6 One of the other students in the diving lesson, Ms Angelina Martinez, gave evidence of observing the assaults. Her evidence was consistent with the evidence given by the respondents. 7 Mr Richard Brock was a pool lifeguard on duty at the time. He had observed the group of young men causing a nuisance in the pool by dive bombing and generally behaving like "hooligans" over a period of about 20 to 30 minutes. He then saw the brawl which resulted in the respondents receiving the injuries in respect of which they brought their claims. 8 Shortly after he first observed the group's behaviour, and about 20 minutes before the brawl erupted, he went to the group on two separate occasions and warned them that if they continued with their behaviour they would be ejected from the pool. He said that the pool manager and another lifeguard also went and spoke to them. Mr Brock then gave the following evidence: "Q. What action was taken to your knowledge to restrain these youths who were bombing in the 20 minutes or so that they did so apparently after being warned? A. Well we rung [the police] prior to the incident occurring and I stayed and monitored the situation, I tried repeatedly to get them to stop but I was confronted by lots of abuse and refusals so I moved down to the ladder which is at the halfway mark of the pool so that I was far enough out of the way for them not to be [in] verbal contact with them because usually if you're near them they will intimidate you, so I stayed at the halfway mark where I could monitor them and asked all the public in the pool to just keep away from that area." 9 The first call to the police was made to the local police station at Campsie. Mr Brock called the police a second time just as the physical brawl commenced to break out, although on this occasion he called the police emergency number 000. 10 Abusive conduct by groups of young persons was not unknown at the Aquatic Centre. He said that on other occasions he had observed hooliganism, dive bombing, people making racial comments and using abusive language. He said that he had not previously seen any physical abuse or violence. He said that on the occasions when he had observed such behaviour: "… we call the police every now and then for … hooligans that refuse to leave the centre." 11 He said that it had been the practice during the two years that he had been employed at the Aquatic Centre to call the police if it was felt to be necessary. He said that when he had called the local police on other minor occasions they had responded "pretty quickly … [they] usually [came] within 5 to 10 minutes". The action taken by Mr Brock on this occasion was in accordance with the practice which had been adopted on previous occasions when trouble was threatened or broke out at the pool. However, for reasons which were unexplained the police did not arrive on this occasion for about 20 minutes, causing Mr Brock to make the second phone call. 12 During the course of Mr Brock's evidence, counsel for the respondents made an application for leave to cross-examine him under s 38(1)(b) of the Evidence Act 1995 (NSW). That section provides that a party who calls a witness, may with leave of the court, question the witness as though the party were cross examining the witness about a matter which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief making a genuine attempt to give evidence on that matter. 13 The matter in issue was an article in the Sunday Telegraph newspaper in which Mr Brock was reported to have said that incidents of violence: "…happen all the time here and it's the families I feel sorry for." 14 Mr Brock denied in the evidence that he had ever made such a statement. Rather, he said that he had told the reporter that: "… small incidents on hot days happen every now and then". 15 The trial judge rejected the application. Counsel for the respondents then continued to elicit evidence-in-chief from Mr Brock as to the steps he took when the problems first began to arise on this day, and as to the practice of the appellant when some such problem developed. I have referred to that evidence above. 16 The trial judge held that an occupier of a public facility such as the Aquatic Centre conducted by the appellant was under a duty "to take reasonable care as would be commensurate with the situation in which a person visits the premises". His Honour stated that in the circumstances here, that meant that the appellant was under a duty to ensure that people were able to use the facility without fear and a likelihood of physical harm coming to them by reason of the presence of persons such as a large group of young men upon the premises. In his oral submissions, counsel for the respondents submitted that there was a duty of care to exercise control over the activities of those who were harassing and intimidating the respondents. The articulation of the duty in those terms is a more particular version of the duty formulated by his Honour. 17 Counsel for the appellant submitted however that there was no such duty and in particular that the duty of an occupier of premises "did not extend to taking reasonable care to prevent physical injury [to other users of premises] resulting from the criminal behaviour of third parties on that land" and over whom the appellant had no control: see Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 176 ALR 411. 18 For the reasons which I give shortly relating to the question of whether there was a breach of duty in this case, I consider that it is unnecessary to determine whether his Honour's statement of the duty owed in the circumstances was correctly articulated. 19 His Honour held that there had been a very clear breach of the duty as formulated by him. In coming to this conclusion his Honour made the following finding: "There is not the faintest bit of evidence that anything was done other than the life guard has a few words to them and then retreated and I do not say this critically of him, retreated to the middle of the pool where there was some sort of ladder so as he would not further inflame them by his presence. I do not know exactly when the police were called, but it was certainly after the fisticuffs broke out and no attempt prior to that to order these people from the premises or to have them taken from the premises." 20 He commented that the appellant had not called any evidence as to what steps were taken to meet the situation which was arising and escalating before its very eyes. He noted that the only evidence upon which the appellant was able to rely was that of Mr Brock, called in the respondents' cases, who said that the police were always called in such circumstances. His Honour found: "That that was inadequate is perfectly clear, the police never even came till after the two victims were … getting some people to take them to the hospital." 21 This finding is inconsistent with the evidence of Mr Brock. The appellant submitted that his Honour must have overlooked Mr Brock's evidence or completely failed to appreciate its full import and thereby fell into appellable error. The respondents submitted that this finding meant that his Honour must have disbelieved Mr Brock's evidence in significant respects. Counsel for the respondents, in further support of this submission, pointed out that notwithstanding that the respondents had called Mr Brock in their cases in chief, they had launched a significant attack on his credit, both in the making of the s 38 application, which was refused, and in their final submissions. 22 For my part, I cannot see any lack of cogency in Mr Brock's evidence. It is logical, concise and responsive. It was not subject to any attack in cross-examination. The reason for that is obvious, because it clearly favoured the appellant's case. But such absence of attack does not detract from its cogency. Although a trial judge is not required to accept the evidence of a witness notwithstanding that it has not been discredited, it is an unusual course. Had his Honour disbelieved Mr Brock in important respects, it would be expected that that his Honour would have made an express finding to that effect. A failure by his Honour to have done so may have constituted error. 23 In any event, the trial judge clearly accepted some of Mr Brock's evidence and relied upon it for the purposes of making his finding. There is nothing in his Honour's reasons to suggest that he accepted some parts of Mr Brock's evidence and rejected other parts. Rather, it appears that he overlooked significant portions of it. That of itself constitutes appellable error. 24 I am of the opinion that that error led his Honour to find a breach of duty when no such breach existed, even on his Honour's own formulation of the duty owed by the appellant. According to Mr Brock, although problems had been experienced at the pool in the past, they had been dealt with effectively by cautioning the troublemakers and if that failed to be effective, to call the police. The police had always in the past responded promptly and adequately. Admittedly, the system failed on this occasion, but it did so without warning and without any fault on the part of the appellant. 25 Counsel for the respondents conceded that if Mr Brock's evidence was accepted in its totality, the respondents case on breach would be very difficult to support. This was tantamount to a concession, rightly made in my opinion, that on Mr Brock's evidence there was in fact no breach. His Honour erred in finding that there was. 26 For that reason, in the normal course of things the appeal would be allowed. 27 However, in both of these cases, leave to appeal was required because the amount in issue was less than $100,000: see s127(2)(c)(i) of the District Court Act 1973 (NSW). Leave to appeal was sought and obtained by order of the Court made 30 July 2001. In the course of the hearing of the application for leave, counsel for the appellant submitted to the Court that incidents of the kind involved here seemed to be on the increase and that it was important for statutory authorities to know whether or not, as a matter of principle, they were under a duty of care and liable in similar circumstances. The appellant then submitted that this case was an appropriate vehicle to deal with questions of duty, breach and causation not only for this appellant, but for other local councils and public authorities who maintained public facilities. 28 It is apparent from the transcript of the leave application that these submissions found favour with the Court and appeared to have been a factor in persuading the Court to grant leave. However, as the argument unfolded before the Court on the hearing of the appeal, it became apparent that this case does not involve any particular point of principle and is properly resolved on the question of whether there was a breach of duty, a matter which involved a purely factual determination. This caused the Court to consider whether leave to appeal should be revoked. 29 Counsel for the appellant resisted that course, principally for the reason that if his submissions on the appeals were accepted, he had demonstrated clear error in the judgment which the appellant was entitled to have corrected. He also pointed out that although the judgment of Christie DCJ had no precedent value as such, it should be remembered that the majority of cases such as this were determined in the District Court. If the judgment remained uncorrected, it would likely be an important judgment within the Court and be followed by other trial judges. 30 There is considerable merit in this argument and I consider that on the whole, having reached a conclusion that the trial judge erred on the question of breach, the better course is to allow the appeal. 31 That leaves the question of costs. During the course of argument, the Court raised the issue whether, if the appellant was successful, it should in any event bear the costs of the appeal because of the basis upon which it had sought leave to appeal. The appellant eventually made an 'offer' to the Court that if would accede to an order that it pay its own costs of the appeal and of the hearing below. In real terms, that is a more generous order than an order that the appellant pay the costs of the appeal. I consider in the circumstances the appellant's 'offer' should be the order made by the Court in respect of costs. 32 Accordingly, I would propose the following orders in each matter: (i) Appeal allowed; (ii) Verdict, judgment and orders of the trial judge set aside; (iii) Verdict for the defendant/appellant in each case; (iv) Each party to pay its and his own costs of the trial and of the appeal. 33 HEYDON JA: I agree with Beazley JA. 34 MATHEWS AJA: I agree with Beazley JA. ******** 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.