Lesandu Blacktown Pty Ltd v Gonzalez  NSWCA 8
|Judgment date:||8 February 2013|
|Jurisdiction:||Court of Appeal1|
- As a general rule an occupier does not owe a duty to protect persons on its land from the unpredictable criminal behaviour of strangers even if the risk of harm is foreseeable.
- While a special relationship between the parties will create an exception to this rule, there is no established 'special relationship' between retailer and customer that would give rise to that exception.
- Unlike duty, which must be assessed prospectively, causation works by hindsight in answering the question whether, but for the breach, the injury would have occurred: s 5D(1)(a) Civil Liability Act 2002 (CLA).
- A plaintiff must prove on the balance of probabilities that without negligence the harm would not have occurred: s 5E of the CLA.
On 17 September 2008, Manuel Gonzalez (Gonzalez) approached the automatic sliding doors at the entrance to Harvey Norman Blacktown. The doors were locked, and a member of staff from the furniture department released them to allow Gonzalez to enter the store. As the doors opened, 2 men rushed through, and one knocked Gonzalez over, causing him significant injuries. The men had attempted to obtain expensive electrical goods through suspected fraudulent means, and were in the process of fleeing; the store's automatic doors had been locked by an electrical salesman, without the knowledge of other members of staff, to prevent their escape.
Gonzalez claimed liability on the part of the Harvey Norman store, owned by Lesandu Blacktown Pty Ltd (Lesandu) and in first instance at the District Court, the trial judge upheld Gonzalez's claim and awarded him damages in the amount of $42,500, on the grounds that Lesandu owed Gonzalez a duty of care by virtue of their special relationship.
Court of Appeal
On appeal Lesandu pleaded the trial judge had erred in holding there was a duty of care by reason of a "special relationship" between the parties.
The Court found the circumstances of Gonzalez's liability claim to be fraught on a number of levels; specifically:
- Whether Lesandu owed Gonzalez a duty of care in respect of the conduct of third parties;
- What Lesandu should have done, if anything, to avert the risk that materialised; and
- Whether any breach on the part of Lesandu caused Gonzalez's injury in a legally relevant sense.
Duty of Care
At first instance, the trial judge found that Lesandu owed Gonzalez a duty of care because of Lesandu's standing in a "special relationship" to Gonzalez.
This proposition was rejected by Basten JA, who cited Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil 2 , who defined 'special relationship' as:
"the relationship between two parties [where] one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee."3
Basten JA found no criteria identified which would have warranted the conclusion that there was a special relationship between Lesandu and Gonzalez.
Basten JA also adopted Gleeson CJ's reasoning that even in the absence of a special relationship, the existence of a risk of harm of the kind suffered, which was foreseeable in the sense it was real and not far-fetched:
"is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land." 4
Meagher JA also cited Modbury Triangle:
"The control and knowledge which form the basis of an occupier's liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger ... The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable."5
Basten JA cited the CLA and noted that s 5B only requires a duty of care where the risk is foreseeable, not insignificant, and such as would lead a reasonable person to take relevant precautions. Whilst it was foreseeable that fraudsters would attempt a hurried escape which could pose risk to other customers, Basten JA noted that the unpredictability of criminal conduct made it difficult to draw conclusions about the significance of a risk. Without the benefit of hindsight, it was also difficult to see what Lesandu could have done to take precautions against the criminal behaviour.
Meagher JA accepted the general proposition that an occupier of retail premises has a duty to take reasonable care in the conduct of activities on the premises which could cause harm to customers or their property if reasonable care was not taken. However, Meagher JA noted in this instance, while the circumstances which resulted in Gonzalez's injuries did involve Lesandu locking the door, the harm itself was the direct consequence of the suspect third party's conduct when faced with Gonzalez inadvertently standing in his way. Meagher JA also noted that it was not alleged that Lesandu's action in locking the door was negligent.
Basten JA also cited s5D of the CLA, which assumes liability follows a determination that negligence caused the particular harm. He referenced the Court's finding in Adeels Palace Pty Ltd v Moubarak that "recognising that changing any of the circumstances in which the [incident] occurred might have made a difference does not prove factual causation." 6 Basten JA considered that the risk of injury to Gonzalez was caused by the unpredictable (and criminal) conduct of a third party, as opposed to circumstances where the risk of harm was directly created by the alleged negligence of Lesandu.
Meagher JA noted that there was no evidence of:
- any other incidents, in Harvey Norman Blacktown or any of Lesandu's other stores or associated companies, where customers had been injured in similar circumstances by suspected wrongdoers;
- any accepted practice within the retail industry in relation to the questioning, apprehension or detention of suspected wrongdoers in a store;
- any precautions which are generally taken to secure the safety of staff and customers in the same or similar circumstances.
Meagher JA noted there was no evidence that before the door was unlocked, the suspects had acted in a way that made it highly likely and foreseeable that they would harm a customer in the event they were given the opportunity to escape. Meagher JA considered that in the absence of any such evidence the finding that Lesandu owed a duty of care to Gonzalez could not be justified.
Whilst the possibility of fraud in a retail store may be readily foreseen, the unpredictability of the criminal's response means that prescribing an occupier of premises a duty to take precautions is unrealistic, at least in the absence of evidence suggesting a history of similar incidents, accepted industry practice or general precautions for the safety of staff and customers in similar circumstances.
To prove "factual causation" as required by s 5D of the CLA it is not sufficient to prove that a plaintiff's injuries "might" not have occurred if an adequate [security] system was in place. A plaintiff has to prove that more probably than not they would not have been injured if such a system was in place.
1 Basten and Meagher JJA, Davies J in
2  HCA 61; 205 CLR 254
3 Ibid at 
4 Ibid at 
5 Ibid at 
6  HCA 48; 239 CLR 420 at 
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