Unreported Judgements

On this page you will find a collection of unreported judgements from around Australia involving security, third party criminal acts, and licensed premises. I hope you find these cases interesting reading. I will be updating this page regularly with new decisions as they appear, so remember to keep checking back frequently for more updates.

Sapwell v Lusk and Anor [2010] QSC 344

EMPLOYMENT LAW -- Liability at common law for injury at work -- Causation and foreseeability -- Foreseeability -- Where plaintiff was employed by the defendants as an optical technician in an optometry shop -- Where plaintiff worked alone during daylight hours and would repair spectacles in the shop's back room obscured from view -- Where plaintiff had limited view of the front section of the shop when in the back room -- Where the back room was not installed with any device to prevent people from following the plaintiff in to the back room or to alert the plaintiff to the presence of an intruder -- Where plaintiff was sexually assaulted by a customer when she was in the back room repairing his spectacles -- Where plaintiff claimed that she had a history of child sexual abuse and developed severe post traumatic stress disorder, depression and anxiety following the assault -- Whether the risk of injury to the plaintiff was foreseeable.

TORTS -- Negligence -- Essentials of action for negligence -- Special relationships and duties -- Employer and employee -- Where plaintiff was employed by the defendants as an optical technician in an optometry shop and was sexually assaulted by a customer when she was alone at work -- Where plaintiff developed severe post traumatic stress disorder, depression and anxiety following the assault -- Where employer owes a duty of care to employees to provide a safe system of work -- Where employer owes a duty of care to employees to take reasonable care to protect employees from the criminal behaviour of third parties -- Whether defendants breached their duty to take reasonable care to avoid the foreseeable risk of injury to the plaintiff.

Hadaway v Robinson and Ors [2010] NSWDC 188

TORTS -- assault and battery -- plaintiff assaulted on leaving licensed premises -- whether assailant liable in damages for assault and battery -- whether hotel owner and licensee are liable for antecedent breach of duty of care owed to plaintiff in respect of events occurring within licensed premises prior to assault and battery. DAMAGES -- assessment of multiple heads of compensatory damages -- entitlement of plaintiff to award of exemplary and aggravated damages -- dual damages assessments -- assessment of common law damages and assessment of damages under Civil Liability Act 2002 -- jurisdiction for damages award -- extended jurisdiction conferred by s 51(4) of District court Act 1973.

Miles v. Brisbane City Council [2009] QDC 501

LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – where plaintiff was employed by the defendant as a bus driver – where plaintiff working alone at night had to leave parked bus – defendant’s policy was that when bus drivers left bus they had to take with them the bus cash box – plaintiff victim of attempted armed robbery – incident took place in overgrown and poorly lit area surrounding bus driver restroom facilities – where as consequence of assault plaintiff suffered personal injuries including psychological sequelae in the form of post traumatic stress disorder – whether the risk of injury to plaintiff was foreseeable – DAMAGES – pain, suffering and loss of amenity – economic loss. TORTS – Negligence – essentials of action for negligence – employer and employee – duty of employer

CAL No 14 Pty Ltd v Scott [2009] HCA 47

TORTS -- Negligence -- Duty of care -- Operator of hotel and liquor licensee -- Intoxicated patron died in road accident after leaving hotel on motorcycle -- Where patron and licensee agreed motorcycle and its keys should be held by licensee and patron's wife called when patron ready to leave -- Patron refused licensee's offer to call wife to collect patron as arranged and requested keys -- Whether licensee had duty to take reasonable care to prevent intoxicated patron from riding motorcycle from hotel -- Whether an exceptional case.TORTS -- Negligence -- Breach -- Whether alleged duty required licensee to call wife -- Whether alleged duty discharged by offer to call wife. TORTS -- Negligence -- Causation -- Whether calling wife would have prevented death -- Whether on balance of probabilities wife would have received and responded to call in time.

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48

NEGLIGENCE -- Conduct of restaurant/nightclub -- Duty of care owed by proprietor to patrons -- Can extend to taking reasonable care to guard against injury from intoxicated, unruly or violent behaviour of other patrons -- Including criminal behaviour -- Depends on foreseeability of injury from the behaviour and control over it -- On facts, duty of care was owed -- On facts, was breached and was causation -- Desirability of discrimination in complaint of erroneous admission or rejection of evidence.

Portelli v Tabriska Pty Ltd and Ors [2009] NSWCA 17

TORT -- Negligence -- Duty of care -- Publicans and security firms -- Previous altercation between patrons on premises -- Whether duty of care is owed with regards to later altercations between patrons occurring off the premises -- Need for apprehension of risk to the patrons. EVIDENCE -- Rejection of evidence of a witness -- Failure to deal with written statement of witness who gives oral evidence-inferences to be drawn from failure to call a witness.

Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2

ASSOCIATIONS AND CLUBS -- Occupier of licensed premises -- Duty to patron -- Club security standard operating procedures -- Policy that all parties to dispute evicted without assessment of aggressor's identity -- Whether club delegated responsibility for security of patrons to security firm. NEGLIGENCE -- Duty of care owed by occupier of licensed premises to patron -- Assault by another patron -- Breach of duty of care -- Plaintiff and third defendant evicted from club through separate entrances after altercation -- Whether reasonably foreseeable that third defendant might return and assault plaintiff – Security guards' assessment of third defendant's condition -- Additional steps available but not taken -- Whether conduct unreasonable.

Quintano v B W Rose Pty Ltd and Anor [2009] NSWSC 446

NEGLIGENCE -- Duty of care -- Plaintiff shot in course of brawl on nightclub premises -- Duty of nightclub operator to provide security -- Duty of security provider contracted to provide security guard – Whether operator delegated duty to security provider -- Whether sufficient level of security provided – Whether contracted guard failed to perform his duties diligently. NEGLIGENCE -- Causation -- Whether higher level of security would have averted injury to plaintiff. NEGLIGENCE -- Contributory negligence -- Whether by joining brawl plaintiff failed to take reasonable care for own safety -- Apportionment. DAMAGES -- Assessment -- Gratuitous care -- Whether to be allowed in respect of parent's attendances while plaintiff cared for by paid hospital staff.

Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204

EVIDENCE -- credibility findings -- failure to identify basis of adverse credibility findings. TORTS -- intentional torts -- assault and battery -- defences -- self-defence -- Civil Liability Act 2002 – section 52(2) -- onus of proof -- elements of self-defence -- two-stage inquiry -- relevance of intent to injure to a claim of self-defence. TORTS -- intentional torts -- assault and battery -- where injury occurred following the commission of separate offences by the plaintiff and defendant -- Civil Liability Act 2002 -- approach to s 54 -- section 54(1) – whether conduct constitutes a serious offence -- section 54(2) -- onus of proof -- section 53 -- failure to explain why the failure to award damages would be harsh and unjust.

Clinton Brilley v Presidential Security Services of Australia Pty Ltd [2007] NSWDC 284

PLAINTIFF WHILE COMMITTING AN ARMED ROBBERY ON 23 JUNE 2003 WAS SHOT AND INJURED BY A SECURITY GUARD EITHER EMPLOYED BY OR CONTRACTED TO THE DEFENDANT. -- Proceedings commenced on 8 November 2005 -- Application to join the security guard personally as second defendant more than 3 years after injury. -- No application under Limitation Act 1969, s 60C. – Application made to join second defendant on 14 August 2006. Plaintiff claimed original 3 year limitation period had not expired as at that date as plaintiff under a "disability" for 18 months during which he was incarcerated. -- Plaintiff again incarcerated at time of this application. -- Plaintiff failed to establish a prima facie case as required by the Felons (Civil Proceedings) Act 1981.

Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355

TORTS -- NEGLIGENCE -- EMPLOYMENT -- Scope of duty of care -- Causation -- Employee injured by being shot by another employee after he left place of employment -- Employee had been injured over 18 months earlier in an assault by the other employee at the place of employment -- Other occasions of unreasonable conduct by the other employee -- Whether employer in breach of duty of care in not dismissing the other employee, or otherwise -- Whether injury caused by any such breach, and not too remote.

Collingwood Hotel Pty Ltd v O'Reilly; Night Knowledge Security Pty Ltd v O'Reilly [2007] NSWCA 155

NEGLIGENCE -- duty of care -- duty of occupier and licensee of hotel to patrons on licensed premises -- duty of security guards to patrons of licensed premises. NEGLIGENCE -- breach -- whether hotel staff should have informed security guards that patrons had been refused service of alcohol -- whether security guards should have attended to patron injured in fight – whether risk of fight breaking out was reasonably foreseeable. NEGLIGENCE -- causation -- whether failure to take steps to prevent fight caused the plaintiff's injury.

Wagstaff v Haslam and Anor [2007] NSWCA 28

NEGLIGENCE -- duty of care -- nature and content of duty owed by occupier of a hotel to its patrons – whether duty extends to protection against deliberate wrong doings of third parties. NEGLIGENCE -- breach and causation -- whether there was a breach of duty by the conduct of the bar manager -- whether the breach caused the injury. PRACTICE AND PROCEDURE -- inconsistent findings of liability between two plaintiffs in separate causes of action arising from the same incident.

On 3 May 2000 there was an altercation between Mr Wagstaff and another patron at the Greenhouse Tavern, Coffs Harbour. Mrs Wagstaff, the Appellant, intervened to assist her husband, and suffered injuries as a result. Mrs Wagstaff claimed damages as a result of the negligence of Mr Haslam, the licensee of the Greenhouse Tavern and D & D Haslam Pty Ltd, the occupier of the premise.

Zorom Enterprises Pty Ltd v Zabow and Ors [2007] NSWCA 106

TORTS -- vicarious liability -- Civil Liability Act 2002 (NSW) -- whether s 3B(1) excluded the operation of the Act in relation to the vicarious liability of an employer for an intentional tort by its employee. TORTS -- vicarious liability -- employment of security guards on licensed premises -- conditions imposed on licences under Liquor Act 1982 (NSW) -- unauthorised act by an employee -- whether employer of security guard vicariously liable. DAMAGES -- exemplary damages -- whether employer could be vicariously liable for exemplary damages. DAMAGES -- future economic loss -- whether assessment should be by way of a 'buffer' -- whether correct comparable earnings used. DAMAGES -- superannuation based on future economic loss -- whether actuarial evidence necessary – whether a second discount should be applied because the amount is received now rather than later.

On 15 March 2003, Mr Zabow was injured outside the Clovelly Hotel in an unprovoked assault by one of the security guards employed by Zorom Enterprises Pty Ltd Zorom Enterprises appealed against a decision of the District Court which found it vicariously liable for the injuries caused by the security guard. The Appellant also challenged the damages awarded to Mr Zabow.

Spedding v Nobles; Spedding v Mcnally [2007] NSWCA 29

NEGLIGENCE -- duty of care -- whether licensee of hotel had a duty to protect patrons from criminal assault by third parties -- power and obligation to control provided by Liquor Act 1982 (NSW), ss 2A, 103(1), 103(3A) and 125. NEGLIGENCE -- breach -- whether licensee had knowledge of an earlier assault and robbery -- whether it was open to the trial judge to draw the inference that there was such knowledge -- whether risk of attack was reasonably foreseeable. 

Sprod Bnf v Public Relations Oriented Security Pty Limited [2007] NSWCA 319

TORTS -- negligence -- vicarious liability -- owner of club -- security guards employed by respondent club owner assaulted the appellant in a laneway -- unauthorised acts of assault -- proximity to authorised acts -- whether the unauthorised acts of the security guards were so closely connected with acts which, by virtue of their employment, they were authorised to carry out, or whether they were mere independent acts motivated primarily by personal animosity and vindictiveness, such that they were to be regarded as improper modes of discharging their duties as security guards -- interests of employer -- whether the unauthorised acts were done in the supposed furtherance of the respondent's interests.

Perkins v Redmond Company Pty Ltd [2007] NSWDC 147

NEGLIGENCE -- Altercation between two patrons on licensed premises resulting in injury to plaintiff -- Whether licensee failed to provide adequate security at the premises -- Content of duty of licensee -- Relevance of non-compliance with conditions imposed on Place of Public Entertainment licence -- Whether duty of care delegated to security company -- Causation -- Contributory negligence -- Assessment of damages.

The plaintiff was present at the tavern and was struck in the eye by a glass thrown by another customer of the tavern ("the assailant").  The assailant has never been identified or apprehended. The plaintiff's claim against the defendant is essentially first that the level of security at the tavern was inadequate having regard to the nature of the premises, its location and history and the conditions imposed on it, and second that the response of the security guards who were there was inadequate.

Ryan v Ann St Holdings P/L [2006] QCA 217

TORTS -- NEGLIGENCE -- ESSENTIALS OF ACTION FOR NEGLIGENCE -- SPECIAL RELATIONSHIPS AND DUTIES -- EMPLOYER AND EMPLOYEE -- where a security guard at The Beat Night Club heavily punched the respondent in the head for no apparent or justifiable reason -- where the respondent initiated proceedings against the appellant to recover damages for personal injuries sustained as a result of the event -- where the trial judge ruled that the appellant was vicariously liable for the conduct of the security guard -- whether the actions of the security guard were such that the appellant should be held vicariously liable.

TORTS -- NEGLIGENCE -- ESSENTIALS OF ACTION FOR NEGLIGENCE -- GENERALLY – appellant employed respondent as console operator at service station and convenience store -- armed robbers held up shop while respondent was working -- respondent suffered psychiatric illness as result of robbery – respondent brought action for damages for negligence and breach of statutory duty -- respondent successful before learned trial judge -- learned trial judge found need for permanent security guard -- learned trial judge did not find that arrangements for random checks by security guards were not reasonably adequate -- whether the learned trial judge's judgment in favour of the respondent can be sustained.

At about 8.00 pm on the night of 27 October 1998, armed robbers held up a service station and convenience store ("the shop") operated by the appellant at Kingston. The respondent was employed by the appellant as a console operator at the shop. The respondent suffered a psychiatric illness as a result of the robbery.

Coca Cola Amatil (NSW) Pty Ltd v Pareezer and Ors [2006] NSWCA 45

TORT -- Personal injury -- Contractor shot while delivering appellant's products to vending machine -- Duty of care -- Whether there exists a special relationship which creates duty to protect against violence -- Causation -- Whether there exists a practicable and reasonable alternative system -- Gunman irrational -- Alternative system would not have prevented injury.

Haris v Bulldogs Rugby League Club [2006] NSWCA 53

NEGLIGENCE -- appellant spectator injured by firework while attending football match at stadium occupied by respondent -- whether reasonable care taken to avoid a foreseeable risk of injury -- whether additional measures should have been taken to discharge reasonable care in the circumstances -- Whether sufficient reasons given and difference between adequacy of reasons and sufficiency of reasons -- whether precautions taken were unnecessary when dealing with a reasonable person test under s 5B Civil Liability Act -- whether damages awarded inadequate.

Tab Limited v Beaman [2006] NSWCA 345

TORTS -- Negligence -- Duty of care -- Scope of duty -- Armed robbery at TAB agency operated by franchisee -- Employee injured -- Whether failure to ensure suitable and safe workplace, system and training -- Whether duty extends to protecting employee from criminal acts of third parties -- Whether special relationship between franchisee or TAB Ltd and employee -- Robbery foreseeable -- Capacity to reduce risk considerably – Causation -- "But for" the protective measures that may have been actioned, the robbery could still have taken place -- Plaintiff fails on causation.

Whitehouse Properties t/as Beach Road Hotel v McInerney and Anor [2005] NSWCA 436

TORTS -- vicarious liability -- contributions between tort-feasors, both of whom are vicariously liable.

The appellant (the hotelier) was the owner and the occupier of premises known as the Beach Rd Hotel (the hotel). The first respondent (the plaintiff) sued the hotelier in trespass and in negligence, claiming that he had been assaulted by two security guards, or "bouncers", whilst a patron at the hotel. The hotelier joined the second respondent, S Smith Security Pty Ltd (the security company) as a cross-defendant, claiming that the security guards were employees of the security company. At trial, the plaintiff succeeded against the hotelier, and the cross-claim failed. On appeal by the hotelier, three topics were debated: first, whether the hotelier was vicariously liable for the conduct of the security guards; secondly, a question about the measure of damages; and thirdly, whether the hotelier was entitled to contribution from the security company.

English v Rogers and Anor [2005] NSWCA 327

NEGLIGENCE -- employer's duty of care -- non-delegable duty -- contractor -- late-night cleaner at a hotel -- armed robbery -- hostage at gun-point -- adequacy of security measures -- psychiatric injury – consequent physical injury -- special vulnerability -- absence of instructions -- voluntary human intervention – coordinating role of the Hotel -- causal relation of motor accidents to psychological injury -- interest on non-economic loss -- general damages at common law -- s 151M, s 151Z Workers Compensation Act 1987 -- apportionment of damages as between employer and Hotel. (D).

Anderson v Hotel Capital Trading Pty Limited [2005] NSWCA 78

NEGLIGENCE -- Common law damages -- Employer/employee relationship -- Breach of duty of care -- Insufficient evidence to establish breach.

Czatyrko v Edith Cowan University [2005] HCA 14

NEGLIGENCE -- Duty of care -- Employer and employee -- Safe system of work -- Suitable plant and equipment -- Employee injured when attempting to stand on moveable platform while loading a truck -- Platform not in position -- Employee stepped backwards onto platform in belief it was raised -- Absence of warning beeper -- Absence of oral warning -- Whether employer failed to devise and implement a safe system of work – Whether employer failed to provide suitable plant and equipment. NEGLIGENCE -- Contributory negligence -- Employee injured when attempting to stand on moveable platform while loading a truck -- Platform not in position -- Employee stepped backwards onto platform in belief it was raised -- Whether employee should have looked behind him before stepping backwards.

State of New South Wales v Zerafa [2005] NSWCA 187

TORT- NEGLIGENCE -- Prisoner assaulted by another prisoner -- Reasonable forseeability -- Whether degree of observation, supervision and searching were inadequate -- Shirt calculus -- Way case conducted – Sufficiency of reasons.

Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222

NEGLIGENCE -- employer's duty of care to provide safe system of work -- avoiding exposure to unnecessary risk of injury -- robbery of pizza delivery driver -- order by mobile phone -- new customer -- caller rang again -- call back by employer unanswered -- whether employer should have called off delivery -- evidence of recognised risk of robbery and circumstances of suspicion -- including mobile phone orders from new customer when call back unanswered -- finding of negligence open to judge. D.

Starks v RSM Security Pty Ltd and Ors [2004] NSWCA 351

TORT -- Vicarious liability of employer -- Circumstances in which an employer can be vicariously liable for an unauthorised and illegal act of its employee -- Employer not liable for a wrongful act of an employee committed "on a frolic of his own". TORT -- Vicarious liability for acts of an independent contractor -- the principal exercising control over independent contractor independent contractor acting as "representative" of the principal. STATUTORY CONSTRUCTION -- Liquor Act 1982 -- Statutory obligation imposed upon licensee -- Non-delegability of obligation under Act does not render it non-delegable for the purposes of tort law. STATUTORY CONSTRUCTION -- Liquor Act 1982, s 103 -- Use of excessive force in tasks authorised by section -- Section has nothing to say about liability of a licensee for use of excessive force by a third party not directly employed by it.

Vasilios Dalamangas and Ors v Star City Pty Ltd and Anor [2004] NSWSC 717

PRACTICE AND PROCEDURE -- Application for summary dismissal pursuant to Pt 13 r 5 of the Supreme Court Rules 1970. STATUTORY CONSTRUCTION -- Whether the Casino Control Act 1992 (NSW) reveals an intention to exclude the common law in relation to the exercise of the powers of the Casino Control Authority -- Whether the Casino Control Authority owes a duty of care to patrons of the casino who are the subject of physical restraint by casino employees in circumstances where the type of restraint used is authorised by the Authority pursuant to the Act -- Whether the Authority has a statutory obligation to investigate the Casino including its "operations" which include the security system in which the restraints are used.

Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29

NEGLIGENCE -- Duty of care -- Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state -- Level of specificity of formulation of duty of care – Whether respondent owed duty to take reasonable care to monitor and moderate amount of alcohol served to appellant -- Whether respondent owed duty of care to take reasonable care that appellant travelled safely away from respondent's premises -- Whether duty of care existed to protect persons from harm caused by intoxication following deliberate and voluntary decision on their part to drink to excess -- Whether duty took into account the vulnerability of some persons to alcohol consumption -- Relevance of statutory provisions, creating offences in relation to conduct on club premises and requiring police to eject intoxicated persons from premises, to existence or content of duty of care owed by respondent where no allegation made of breach of statutory duty – Registered Clubs Act 1976 (NSW).

NEGLIGENCE -- Breach of duty and causation -- Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state -- Whether respondent's offer of safe transport to appellant discharged any duty owed by respondent to take reasonable steps for appellant's safety -- Whether assurance by other patrons that they would look after appellant discharged any onus on respondent -- Whether, assuming respondent in breach of duty to monitor and moderate consumption, breach of duty was a cause of injuries ultimately sustained -- Remoteness of damage -- Reasonable foreseeability.

Wright v Liongain Pty Ltd [2003] QSC 381

TORTS -- NEGLIGENCE -- DUTY OF CARE -- As between an employer and employee -- Whether the risk of injury to the plaintiff may have been reduced or avoided -- Whether the security on the premises was adequate to avoid the risk of injury TORTS -- NEGLIGENCE -- DUTY OF CARE -- As between an employer and employee -- Where the plaintiff alleged he was attacked during a robbery on the defendant's property -- Where the plaintiff was an employee of the defendant -- Where the defendant pleaded conspiracy on behalf of the plaintiff. PROCEDURE -- QUEENSLAND -- PRACTICE UNDER RULES OF COURT -- Where the action commenced before the Uniform Civil Procedure Rules came into force -- Where the plaintiff contends that the as a consequence of r 166 (4) and (5) Uniform Civil Procedure Rules the defendant is taken to have admitted allegations contained in the statement of claim -- Where the defendant amended its defence at the commencement of the trial -- Where the plaintiff had previously been provided with the proposed defence and made a reply some months earlier -- Where the defendant is not covered by r 371(1) -- Where the plaintiff failed to address the issue prior to or during the trial.

Faucett v St George Bank Ltd [2003] NSWCA 43

NEGLIGENCE -- Duty of Care -- Bank -- Duty to employee -- System of delivery of cash -- Security within bank -- Level of protection required. EVIDENCE -- Expert opinion -- Whether outside specialist knowledge -- Ultimate issue.

Gordon v Tamworth Jockey Club Inc [2003] NSWCA 82

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.

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

NEGLIGENCE -- whether failure to take certain precautions resulted in breach of duty of care. PRACTICE -- whether trial judge's reasons were adequate -- s 75A Supreme Court Act.

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.

New South Wales v Lepore [2003] HCA 4

Negligence -- Liability of school authority -- Alleged sexual assault on pupil by teacher -- Whether school authority in breach of non-delegable duty of care -- Concept of non-delegable duty -- Whether school authority vicariously liable -- Test for imposition of vicarious liability. Practice and procedure -- Trial -- Negligence -- Trial of issues of liability and damage severed -- Failure to make necessary findings of fact -- Retrial. Words and phrases -- "non-delegable duty", "vicarious liability". Negligence -- Liability of school authority -- Sexual assault on pupil by teacher -- Whether school authority in breach of non-delegable duty of care -- Concept of non-delegable duty -- Whether school authority vicariously liable -- Test for imposition of vicarious liability. Words and phrases -- "non-delegable duty", "vicarious liability".

Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381

Tort -- negligence -- duty of care -- existence -- breach -- personal injury -- misfeasance -- nonfeasance – plaintiff victim of crime -- assault occurring on common property -- application of principle in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001) 205 CLR 254. The plaintiff was injured when she returned home from work at 2.45am on 9 September 1993 and was attacked by an intruder lurking in an entrance foyer used by the plaintiff to access her apartment. The foyer was common property owned by the defendant strata plan proprietors and was fitted with a door of lockable design. The plaintiff sued the proprietors in negligence seeking damages for personal injury.

Kingsgrove RSL v Spasevski [2002] NSWCA 342

NEGLIGENCE -- breach of duty -- causation -- employer -- employee. The respondent was employed by the appellant as a bar stewardess in its bowling clubhouse. Two armed men robbed the clubhouse while she was on duty. She suffered post-traumatic stress disorder and had not worked since.

North Sydney Leagues Club Ltd v Berecry & 2 Ors [2002] NSWCA 154

TORT -- negligence -- patron injured in club -- injury caused by security officer -- whether delegation of duty of care -- whether breach of duty of care -- foreseeability of injury -- whether security officer acting within scope of his authority. CONTRACT -- claim for indemnification -- whether breach of contract whether terms of contract clear EVIDENCE -- credibility findings -- conflicting statements.

Gee v NWQ Management Pty Ltd & 2 ors [2002] NSWCA 77

Personal Injury -- circumstances of incident and causation -- whether there was sufficient evidence to establish that the third defendant was guilty of negligence -- appeal allowed in part.

Guildford Rugby League Football & Recreational Club Ltd v Coad [2001] NSWCA 139

NEGLIGENCE -- Duty of Care -- breach of duty -- whether appellant breached duty of care by failing to evict person responsible for fight and failing to provide security guards -- DAMAGES -- Negligence -- assessment of damages -- sick pay and loss of earning capacity -- appeal upheld.

Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243

Torts -- Negligence -- Occupier's Liability -- Whether occupier of motel had and/or breached any duty of care to family member staying in motel to prevent injury from a third party assailant -- Where third party acted criminally by reaching through gap in motel room sliding door and hitting sleeping person on head with iron bar.

Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180

NEGLIGENCE -- Duty of care -- Violent brawl at debutante ball on club premises -- Police officer summoned and savagely assaulted -- Club's failure to keep order and warn of danger -- Harm arising from criminal act or disorder -- Fireman's rule discussed -- No sound policy reason for denying recovery.

Pacific Access Pty Ltd v Davies [2001] NSWCA 218 - BC200104242

Respondent assaulted in Port Moresby in the course of her employment with the appellant -- breach of duty of care -- liability and quantum.

The plaintiff was employed by the defendant as a sales consultant. When visiting a client's premises in Port Moresby the plaintiff was attacked by a thief. Adams J found the defendant liable to the plaintiff for injuries caused by the attack on the basis that the defendant's warnings to her about conditions in Port Moresby and how to deal with them were inadequate. The defendant appealed, submitting that it had not been in breach of its duty of care. The plaintiff by notice of contention argued that she had been entitled to succeed on a further particular of negligence not relied on by the judge. Held: Powell JA dissenting, that the trial judge had not been in error in finding duty and breach; the appeal should be dismissed; and that the plaintiff should also have succeeded on the ground relied on in her notice of contention.

EMPLOYMENT LAW -- THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE -- LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW -- SAFE SYSTEM OF WORK -- GENERALLY -- Security guard -- whether proper procedures followed. DAMAGES -- MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – REMOTENESS AND CAUSATION -- FORESEEABILITY OF DAMAGE -- PERSONAL INJURIES -- whether negligence causative of loss -- psychiatric illness -- future employability. EVIDENCE -- ADMISSIBILITY AND RELEVANCY -- OPINION EVIDENCE -- EXPERT OPINION -- whether a relevant area of expertise existed -- whether field of study assisted the court in making its decision.

The plaintiff was employed as a permanent casual security officer by the defendant operating out of its Nerang branch office. At about 12.30 pm on Tuesday, 7 November 1995 whilst carrying out his duties as escort in relation to a consignment of money at the Commonwealth Bank in Bay Street, Tweed Heads he was taken hostage by two armed men and used by them in carrying out a robbery at the bank.

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61

Negligence -- Duty of care -- Whether in the circumstances found an occupier of land owed a duty to take reasonable care to protect those lawfully on its land against the criminal acts of third parties.

Rosstown Holdings Pty Ltd (t/as Rosstown Hotel) v Mallinson - [2000] VSCA 166

NEGLIGENCE -- Personal injury -- Employee securing premises at night held up by armed robber and suffering post-traumatic stress disorder -- Breach, causation and future economic loss -- Sufficiency of reasons given by trial judge -- Retrial limited to damages for economic loss -- RSC 64.23(5) -- Supreme Court Act 1986, s14(2).

Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351

Negligence -- Damages for injury whilst attending rock concert -- Liability of Centre manager, concert promoter and security firm -- Terms of hiring contract -- Dancing and crowd surfing -- Non-delegable duty of care.

W D & H O Wills (Australia) Limited v State Rail Authority of New South Wales; State Rail Authority of New South Wales v TNT Management Pty Ltd; [1998] NSWSC 81

Negligence -- theft of goods from storage shed -- existence of duty of care -- breach of statutory duty – general reliance -- actual reliance -- duty arising from control and ownership of premises -- bailment

W D & H O Wills (Australia) Ltd ("Wills") consigned a container load of cigarettes to TNT Management Pty Ltd ("TNT"), the carrier being State Rail Authority ("SRA"). Following delivery by SRA to TNT, the container was put in TNT's shed. This stood in SRA's rail terminal yard where other freight forwarders also had depots. The container was then left overnight in TNT's shed which was locked but unstaffed. From there it was stolen in the early hours of the morning. The thieves unloaded the cigarettes from the container in the general area of the Terminal.

Oxlade v Gosbridge Pty Ltd & (No 2) [1998] NSWCA 167

OCCUPIER'S liability; appellant harassed by hotel patrons in car park, struck patron with motor vehicle; consideration of whether the presence of security personnel would have prevented the accident; Per Mason P and Sheppard AJA (Fitzgerald AJA in dissent): occupier liable.

Soutter v. P&O Resorts Pty Ltd & Anor [1998] QCA 51

CIVIL -- personal injuries -- appellant was standing on a dance floor when struck from behind by a man – man was drunk and dancing wildly -- whether second respondent should have ensured that appellant was not exposed to the danger which the man's dancing constituted -- whether Liquor Act 1912 s78 gives a right of action to a person injured by the breach when that person is within the class intended to be protected by the statute.

Brown v G J Coles & Co Ltd (t/a Coles New World Supermarket) and Others - [1985] 59 ALR 455 FCA

Arrest -- Powers of citizen -- Detention of customer by store detective pending arrival of police -- (NSW) Crimes Act 1900 s 352(1) Arrest -- Wrongful arrest -- Standard of proof where crime alleged.

The appellant was arrested by a store detective and detained until a police constable arrived. After spending about half an hour making inquiries and taking a statement the constable arrested the appellant on a charge of larceny. He was acquitted of this charge. An action by the appellant for wrongful arrest and false imprisonment against the store and two of its employees, including the person who had arrested him, was dismissed.

Fraser and Fraser v. State Transport Authority [1985] 39 SASR 57

Master and servant-Safe system of work-Bus operators required by transport authority to layover in secluded area at night-Female bus operator alone in bus at layover area at night-Operator attacked by man, dragged from bus, assaulted and injured-Bus equipped with radio telephone and emergency buzzer but operator unable to reach them before being dragged from bus-Duty of transport authority to take reasonable steps to safeguard bus operators from attacks-Claim by bus operator against authority for damages for injuries sustained by her-Whether authority failed to provide safe system of work.

Shelton v. ANZ Banking Group – [1984] SCV

Bailment -- Safe custody -- legal onus on bailee to prove reasonable and proper care. Adequate system of security -- negligent conduct. Damages -- market cost -- replacement cost.

They had been customers since 1951, and around 1963 the then Manager of the Windsor Branch encouraged them to safeguard their valuables and securities by making use of the safe custody facilities offered by the Bank. Thereafter they deposited with the Bank for reward two tin boxes containing their valuables and securities. On the 17th November 1981 in the early hours of the morning thieves entered from the rear of the said Windsor Branch of the Bank, drilled their way through the ceiling of the Bank vault and stole among other things the contents of the plaintiffs' boxes, leaving only some of the papers contained therein.

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