Perera v Prestige Property Services Pty Limited [2003] NSWCA 316

New South Wales Court of Appeal

CITATION : Perera v Prestige Property Services Pty Limited [2003] NSWCA 316 revised - 10/11/2003 HEARING DATE(S) : 21 October 2003 JUDGMENT DATE : 21 October 2003

JUDGMENT OF : Spigelman CJ at 1; Tobias JA at 2; Hodgson JA at 54 DECISION : Appeal dismissed with costs

CATCHWORDS : NEGLIGENCE - whether failure to take certain precautions resulted in breach of duty of care - PRACTICE - whether trial judge's reasons were adequate - s75A Supreme Court Act - ND LEGISLATION CITED : Supreme Court Act, s75A CASES CITED : Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Kingsgrove RSL Club Limited v Spasevski (2002) NSWCA 342 PARTIES : Albert Suwantha Perera Prestige Property Services Pty Limited FILE NUMBER(S) : CA 40788/02 COUNSEL : A: D E Baran R: P Deakin QC / N Gambie SOLICITORS : A: Carroll & O'Dea R: Herbert Greer & Rundle

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1412/01 FILE NUMBER(S) : LOWER COURT Balla J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40788/02 DC 1412/01

SPIGELMAN CJ TOBIAS JA HODGSON JA

21 October 2003 ALBERT SUWANTHA PERERA v PRESTIGE PROPERTY SERVICES PTY LIMITED Judgment 1 SPIGELMAN CJ: I will ask Justice Tobias to deliver the first judgment. 2 TOBIAS JA: On 26 February, 1998 the appellant, who was employed by the respondent as a cleaner, suffered injuries to his face when he was assaulted whilst performing cleaning work at the Mandarin Centre ("the Centre") in Chatswood. He instituted proceedings in the District Court against the respondent, alleging a breach of its duty of care in failing to ensure that proper security measures were in place to avoid the foreseeable risk of the appellant being assaulted during the course of his employment. 3 The proceedings were heard by her Honour Judge Balla, who on 19 August 2002 entered judgment for the respondent. It is against that decision that the appellant appeals to this Court. 4 At the time of the accident, the appellant had been working as a cleaner at the Centre for approximately five months. He worked seven days per week from 4.30 pm to 12.30 am. On the night in question, the appellant was assaulted at approximately 11.04 pm. 5 The Centre is a small to medium sized retail shopping complex in Chatswood, comprising five retail levels above basement car parking. The appellant was required to work on the ground, first and second floors. The ground floor comprised retail shops; the first floor comprised shops and a Time Zone video arcade, together with a security office; the second floor comprised a food court; the third floor comprised a Hoyts cinema complex ("the cinema") and video arcade; and the Gordon Rugby Club ("the club"), which was licensed, occupied the fourth and fifth floors. The second floor was accessible from both the lower and upper floors via stairs, a set of escalators and two lifts. 6 At the time of the assault, the shops within the Centre, including those on the second floor, were closed. However, the cinema and the club were both open. Patrons of both the club and the cinema had access to the second floor where the appellant was working. A security video (exhibit 8) revealed that around the time of the assault a relatively steady stream of people were passing through the second floor. 7 Plans of the Centre admitted in evidence revealed the following means of pedestrian access to the floors of the building. Access from the ground floor to the first floor was by a two-bank lift ("the lift") and dual (that is to say two-way) escalators (the escalators). Access from the first floor to the second floor (where the appellant was working at the relevant time) was via the lift, the escalators (in a different location) and a set of stairs. Access from the second floor to the third floor (the cinema foyer) was also by the lift, the escalators (again in a different location) and a continuation of the same set of stairs. The plans also reveal that access from the third floor to the fourth floor (the foyer of the club) was by a further continuation of the stairs and the lift, although the proceedings seem to have been conducted on the basis that the only access to the fourth and fifth floors was via the lift. The stairs referred to above do not include fire stairs. There was no escalator access from the 3rd floor to the 4th and/or 5th floors. 8 Immediately prior to the assault, the appellant was mopping the floor at a location approximately five to seven metres west of the top of the escalators leading down to and up from the 1st floor. A man aged in his mid-twenties (the assailant), accompanied by a female, walked past the appellant and, in doing so, scuffed with his shoes the floor that the appellant had recently cleaned. Nothing was said by the appellant to the assailant, who then proceeded with his companion to the floor below via the escalators. 9 However, it would appear that the appellant did watch the assailant and his companion descend to the next floor and the assailant observed that he was being watched. He and his companion then returned up the escalator. The appellant saw the assailant starting to ascend and walked towards the top of the escalator to see why he was returning. 10 According to the primary judge, the appellant was not concerned about his safety at that time. He thought that the assailant only wanted to say something to him. Her Honour then found that almost immediately after the assailant arrived at the top of the escalator, he struck the appellant in the face. In cross-examination, the appellant agreed that the assault was sudden and without warning, and that it was only in the few seconds before he was struck that he realised he was in danger. 11 Upon being assaulted, the appellant fell to the floor. The assailant was standing over him and screaming at him, but then apparently he disappeared. The appellant went to the toilet and, after he came out, he contacted security on his two-way radio. Two security officers were in attendance on the appellant eleven minutes after the assault. 12 The appellant did not receive any directions from his supervisor as to how to deal with a potentially violent situation, although he agreed in cross-examination that in December 1997 he had undertaken a short course for a security licence, which included some training in dealing with aggressive people. In any event, the respondent did not give him instructions as to how to handle himself when confronted with a possible or actual assault; nor was he instructed in conflict management. 13 As I have already noted, there was a security office located on the first floor of the Centre, and security officers were present in the building prior to, at the time of and after the assault. The appellant had been provided with a two-way radio, which enabled him to contact the security office. He had not, however, been provided with a panic or duress alarm. 14 Although the appellant gave evidence that he did not see security guards patrolling the area to any great extent, the security video and the stills taken therefrom, reveal a security guard at or near to the top of the escalators at the 2nd floor level at 22.49.50, 22.51.45 and 22.53.45. At 23.03.45 it depicts two persons, being the assailant and his companion, walking in what appears to be an easterly direction towards the top of the escalators. It also shows the appellant cleaning the floor. 15 A still frame from the video at 23.03.48 again shows the appellant cleaning the floor and the assailant and his companion walking in what appears to be a direct line towards the top of the escalators. A frame taken at 23.03.59 shows the assailant and his companion approaching the top of the escalators and shows three other persons descending the escalator ahead of them. A frame at 23.04.05 shows the assailant and his companion on the descending escalator. 16 A frame at 23.04.21 shows the appellant leaving the location where he was cleaning when the assailant and his companion passed by and walking towards the top of the escalators. A frame at 23.04.30 shows the assailant and his companion at the top of the ascending escalator and the appellant walking towards the top of that escalator: the appellant and the assailant being separated by approximately 3-4 metres. 17 A frame at 23.04.31 shows the assailant now at the top of the escalator and the appellant facing him at a distance of approximately 1.5 metres. The next frame at 23.04.33 shows the assailant and his companion at the top of the escalator and shows the appellant on the ground, having just been assaulted. A frame at 23.08.28 shows a security guard who appears to have just come up the escalators, but does not show the appellant who was presumably in the toilet at that time. The final still at 23.15.48 shows the appellant seated at a table close to the top of the escalators speaking to two security guards. 18 The case for the appellant was that the respondent had breached its duty of care by failing to: (a) conduct a risk assessment to determine the level of risk of assault to which the appellant was potentially exposed and whether the security system or systems in place were commensurate with that level of risk; (b) provide the appellant with a panic/duress alarm which, when activated, would emit a loud siren type noise; (c) provide warning notices capable of being observed by members of the public that the area was subject to video surveillance or closed circuit television surveillance; (d) restrict access to the area where the appellant was working by stopping the lifts from opening at the second floor level after the shops there had closed or roping that area off as a form of access control, or by the provision of some other form of barrier that would discourage persons from entering the area unnecessarily; (e) take such other steps as would divert crowds away from the escalators and, in particular, the area of the second floor, which was being cleaned; (f) ensure that the appellant was working with another employee so that he was not on his own; (g) ensure that the security guards patrolled the area where the appellant was working at regular and frequent intervals.