Case review: Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8

Introduction

On 8 February 2013, the NSW Court of Appeal held that an occupier was not liable for the injuries sustained by a potential customer after he was knocked over by a man fleeing their store. In reaching this conclusion, the Court held that there was no ‘special relationship’ which would have mounted to a duty of care being owed by Lesandu to the customer. The Court also found that the respondent’s claim would have failed on grounds of breach and causation, if duty had been established.

Facts

On 17 September 2008, a potential customer - Manuel Gonzalez (the respondent) approached the automatic sliding doors at the main entrance to a store owned by Lesandu (the appellant). A member of staff from the furniture department, upon realising the doors were locked, released the electronic lock so the respondent could enter. As the automatic doors opened, two men hurried through, one of whom knocked the respondent over, causing him injuries to his right shoulder and leg. These men had attempted to purchase valuable electronic goods through fraudulent means, and were attempting to flee the store. The men had become aware that an electronic salesman had locked the doors to the store and had also called the police. No other staff members were made aware of the salesman’s actions.

District Court hearing

The respondent initiated proceedings in the District Court against the appellant alleging negligence pursuant to the Civil Liability Act 2002 (NSW) (CLA). He claimed that the occupier had breached its duty to take reasonable care for people on its land by failing to warn him of the risk that when the doors opened the suspects may try to escape (and cause him injury) and by failing to have in place a system for the ‘apprehension, detention and restraint’ of suspected criminals within the store.

The trial judge (Charteris DCJ) accepted the respondent’s submissions and held that the appellant owed the respondent a duty of care by virtue of their ‘special relationship.’ His Honour held that the appellant was negligent in not having a security system in place and, by virtue of this, the appellant had breached its duty to the respondent. Additionally, his Honour found that there was a causal link between the breach and injuries sustained by the respondent.

On 28 October 2011 the trial judge held that the appellant was negligent for the store’s failure to take adequate precautions to prevent harm to the respondent and awarded him minimal damages in the amount of $42,500.00.

Issues on appeal

The appellant appealed to the NSW Court of Appeal on the basis that the trial judge had erred in holding that there was a duty of care owed by the appellant, by virtue of a ‘special relationship’ between the appellant and respondent.

In a wider sense, the Court held that the claim brought by the respondent was contentious at a number of levels, namely:

  1. Whether the appellant owed the respondent a duty of care in respect of the conduct of third parties, criminal or otherwise;
  2. What the appellant should have done (if anything), to avert the risk which materialised; and
  3. Whether any breach by the appellant caused the respondent’s injury in a legally relevant sense.

Duty of care in respect of the conduct of third parties, criminal or otherwise

The Court held that the appellant did not owe the respondent a duty of care, as a ‘special relationship’ between the parties could not be found. In examining ‘special relationship’, Basten JA relied upon the definition provided in the eminent case of Modbury Triangle Shopping Centre Pty Ltd v Anzil,[1] where the court said that one party must have…a duty to take reasonable care to protect the other from criminal behaviour of third parties, random and unpredictable as such behaviour may be.[2] In relying upon this definition, Basten JA found no criteria which would have established such a relationship, especially since the appellant could not have been reasonably expected to control the criminal activities of third parties. Meagher JA also agreed with Basten JA’s use of Modbury Triangle.

In addition, Basten JA also provided three main reasons why the finding of ‘special relationship’ by the trial judge was bound to fail. Firstly, the trial judge focused too heavily on the specific facts of the case rather than the underlying law. Secondly, the trial judge failed to assess the scope of duty, alongside the harm suffered (and the alleged breach), and finally, the trial judge used ‘special relationship’ as an abstract characterisation rather than identifying specific elements which would have proven the existence of such a relationship.

What the appellant should have done (if anything), to avert the risk which materialised

The Court found that without the benefit of hindsight, it was not possible to determine what safeguards the appellant could have put in place to prevent criminal behaviour and thereby the injury of the respondent.

In assessing this issue, Basten JA set out the three main elements of s 5B of the CLA and held that the risk was foreseeable. However, it was not ‘not insignificant’ as an assessment of criminal conduct was too unpredictable to determine. Therefore, in this respect, a reasonable person would not have been expected to take precautions.

In relation to this issue, Meagher JA held that the risk which materialised was a direct result of the third party fleeing from the store and faced with the respondent standing in his way. Consequently, the appellant did not breach their duty and could not have averted the risk (if a special relationship had been found).

Whether any breach by the appellant caused the respondent’s injury

The Court held that if causation was necessary in determining liability in this case, it should have been assessed in accordance with s 5D of the CLA. This section of the Act, states that negligence must be a necessary condition of the harm, commonly known as the ‘but-for’ test. Basten JA examined the findings in Adeels Palace Pty Ltd v Moubarak,[3] reconfirming that simply raising possibilities that may have occurred if circumstances had been different, does not prove factual causation. Basten JA argued that the respondent had the opportunity to prove causation by establishing that, ‘if specified steps had been taken, which the applicant was obliged to take, it was more likely than not that he (the respondent) would not have suffered the harm which he did’;[4] however the respondent did not establish this. His Honour concluded that the risk of injury was caused by the criminal (and unpredictable) conduct of a third party and therefore it was too unclear to determine whether any proposed precautions would have reduced the risk of harm to the respondent.

Impact of the decision

This decision raises important issues in relation to the application of the CLA, when third party criminal conduct is involved. It illustrates that the risk of criminal conduct occurring in a retail store is foreseeable, but the unpredictability of such behaviour means that an occupier of premises may not have a duty to take precautions in respect of the risk.

However, if there has been a history of similar incidents, accepted industry practice for detaining suspected criminals or precautions taken for staff and customers in similar circumstances, the Court may be more willing to find a ‘special relationship’ exists and impose a duty of care. Therefore, in these circumstances, occupiers of retail premises should ensure that they have suitable security systems in place and adequately train staff members to deal with suspected wrongdoers.