Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8 Hearing dates: 9 November 2012 Decision date: 08 February 2013 Before: Basten JA at [1]; Meagher JA at [41]; Davies J at [77]. Decision: (1) Grant the applicant leave to appeal. (2) Direct the applicant to file, within seven days, the draft notice of appeal. (3) Allow the appeal and set aside the judgment in the District Court. (4) Order the respondent to pay the applicant's costs in this Court. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - respondent customer injured on applicant's premises as result of collision with third party - third party fleeing premises after being detained by employees of applicant - no general duty owed by applicant to protect customers and the public from actions of third party - whether "special relationship" existed between customer and applicant - whether applicant's ability to control access to and presence on premises and existence of a foreseeable risk of harm of kind suffered by applicant sufficient to give rise to a duty of care - whether primary judge failed to apply ss 5B and 5D of the Civil Liability Act 2002 Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D; Part 1A, Div 2 Liquor Act 1982 Supreme Court Act 1970 (NSW), s 101 Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Chapman v Hearse [1961] HCA 46; 106 CLR 112 Chappel v Hart [1998] HCA 55; 195 CLR 232 Graham v Hall [2006] 67 NSWLR 135 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 Smith v Leurs [1945] HCA 27; 70 CLR 256 Smith v Littlewoods Organisation Ltd [1987] AC 241 Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267 Category: Principal judgment Parties: Lesandu Blacktown Pty Ltd (Applicant/Appellant) Manuel Gonzalez (Respondent) Representation: Counsel: