Case Note: Conti v Wollongong City Council [2007] NSWCA 334

• The Court of Appeal had to decide whether the owener/occupier of a leisure centre should have foreseen that a 16 year old girl would assault another patron.

• The plaintiff was a member of Beaton Park Leisure Centre, a complex which was owned and operated by Wollongong City Council.

• After a spin class at the leisure centre, the plaintiff went to the change room for a shower. All four shower cubicles were being used by people who were screaming and using foul language.

• There was a two minute time limit on use of the showers. When the showers had not been vacated after five minutes, the plaintiff sought assistance from staff.

• A staff member asked the occupants of the showers to get out of the showers. The staff member left the change room.

• The plaintiff then sought assistance from another staff member who requested the occupants of the showers to leave the leisure centre.

• The occupants emerged and all were minors, being a 16 year old girl, another girl about 11 and two boys aged about 5. The 16 year old girl was verbally abusive towards the plaintiff. The staff member told the children she would call the police to have them removed and left the room to make the call.

• The plaintiff went into one of the shower cubicles. The children threw a towel and bottle of mineral water over the wall of the cubicle which struck the plaintiff. The plaintiff gathered her belongings and went to leave the change room. As she passed the children, the 16 year old girl punched her in the left eye.

• The plaintiff sued the Council for failing to adequately handle the "escalating state of affairs in the change room". The plaintiff claimed the Council had breached its duty of care in allowing the minors to remain in the change room with her with no staff member present.

• Truss J noted it was after the plaintiff had opened the door to the change room and the plaintiff confronted the minors that she was punched. Her Honour concluded the plaintiff could have left the change room but did not do so. Her Honour therefore inferred the plaintiff did not consider the situation was escalating to the point where she was in imminent danger.

• Her Honour accepted the staff member's evidence that she did not feel threatened in the change room and that she called the police because the minors were not moving on, not because she feared violence.

• There was no evidence of any violent incidents occurring previously at the leisure centre.

• The plaintiff sought to rely on Spedding v Nobles & McNally [2007] NSWCA 29 where a hotel patron injured by another patron in a fight successfully sued the hotel. The plaintiff also relied on English v Rogers (2005) NSWCA 327 where a cleaner injured at a hotel by a masked gunman succeeded against the hotel. Truss J distinguished those cases on the basis that in each there had been similar prior incidents.

• Truss J held that the Council had not breached its duty of care to the plaintiff and this was a case where Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] 205 CLR 254 applied, this being authority that an occupier cannot be held responsible for the criminal acts of third parties.

• The Council had conveyed a Calderbank offer to the plaintiff's solicitors that it would be prepared to pay its own costs to date if the plaintiff discontinued the proceedings. The trial judge ordered the plaintiff to pay the defendant's costs on a solicitor client basis from the date the Council had filed its defence.

• The plaintiff appealed on a number of grounds, including that Truss J erred in holding that the circumstances of the case did not fall within one of the qualifications or exceptions enunciated in Modbury Triangle. It was also claimed that her Honour had erred in placing too much emphasis on the absence of prior violent incidents in finding there was no foreseeable risk of harm.

• It was argued that the trial judge did not place sufficient emphasis on the duty of the Council to control the aggressive minors. It was also argued that the trial judge erred in exercising her discretion in ordering the plaintiff to pay the defendant's costs on a solicitor client basis.

• The plaintiff argued that the staff member from the Council ought, by reason of her training in defusing conflict situations, to have realised the situation would escalate into the violence which occurred and ought to have ensured the plaintiff was removed from the position of danger in the change room.

• The plaintiff argued that, as was the case in Spedding, the defendant had an element of control over the premises and was in a position to regulate the behaviour of patrons.

• The Council argued that the fact that the noisy minors were in the showers for too long did not place it on notice that an assault may occur.

• The Court of Appeal held that, although the minors were behaving in a juvenile and irresponsible manner, they had not engaged in any violent behaviour and there was no suggestion that they would do so. The primary judge's conclusion that there was no foreseeable risk of harm was upheld.

• The Court of Appeal did, however, overturn the primary judge's conclusion on costs on the basis that a fundamental error had been made.

• The principle in Modbury Triangle remains good law, that is that an occupier cannot be held liable for an assault by a third party which was not reasonably foreseeable, particularly in circumstances where there had been no previous incidents.

• This case was clearly distinguishable from cases involving assaults in licensed premises, such as the recent Court of Appeal decision in Spedding v Nobles & McNally where it was held that the Liquor Act, 1982 (NSW) provided a basis for a finding with respect to control with which in turn attracted a common law duty of care.

• In relation to the costs order, the content of the defendant's letter of offer to the plaintiff is not known although it would appear that the letter was brief. As the courts are generally reluctant to order costs on an indemnity basis against a plaintiff, we suggest the prospects of obtaining such an order are enhanced if a detailed Calderbank letter has been sent, setting out the reasons why the offer is made and placing the plaintiff on clear notice that the letter would be relied on an application for indemnity costs if the offer was not accepted. We also suggest it is generally appropriate for Calderbank style letters to convey an offer of a verdict for the defendant rather than an offer to discontinue so that the plaintiff cannot re-commence proceedings.

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