In Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61 the High Court held that while occupiers owe a duty of care to persons lawfully on its premises, that duty does not extend to taking reasonable care to protect persons from the criminal conduct of third parties. The High Court recognised there may be relationships where such a duty of care was owed. Victorian and New South Wales courts have recently looked at some of those relationships. It is clear from these decisions that there are exceptions to the Modbury principle which apply to occupiers and employers.
- Media reports suggest an increase in criminal and anti-social behaviour on licensed premises involving intoxicated patrons.
- Employers/occupiers can owe a duty to take reasonable care to protect persons from the criminal conduct of third parties especially where there is a high degree of foreseeability of harm to employees and patrons.
- Employers/occupiers need to consider the following:
- Whether an employee's duties place them in a position of greater exposure to third party criminal activities.
- The nature of threats made to employees and whether those threats could be followed through.
- The nature of the establishment or the function being held.
- The foreseeability of injury from conduct on the premises plus the capacity to control the conduct.
- Whether there is actual or constructive knowledge of the dangerous propensities of a particular person.
- The duty of employers/occupiers to protect persons from criminal behaviour should be made clearer when the High Court considers Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem  NSWCA 29 later this year.
Ogden v Bells Hotel Pty Ltd  VSC 219
Mrs Ogden was the manager of the Bells Hotel and was held up during an armed robbery early one Monday morning when she was opening the Hotel. She sued her employer in negligence alleging it failed to provide her with a safe system of work and claimed compensation for psychiatric and psychological injury. Bells denied it was negligent.
Justice Williams found Bells breached its duty of care to Mrs Ogden in that it did not provide her with a safe system of work. The Court found the robbery perpetrated on Mrs Ogden was predictable. The robber was able to plan the crime, knowing Mrs Ogden's predictable routine on a Monday morning and the likely significant amount of the potential award. Mrs Ogden was vulnerable, lacked training in self protective behaviour and had not been told of any 'two man rule' of entry applying to her or to others.
Justice Williams was satisfied Bells breached its duty to take reasonable care to prevent harm to Mrs Ogden as a consequence of the robbery. He found Bells failed to take the following steps to prevent the harm caused by a predictable robbery in the circumstances:
- Training Mrs Ogden on the manner of her arrival at the Hotel, her approach to it and her entry when alone on Monday mornings (when the Hotel held the weekend's takings).
- Having visible external CCTV surveillance of the entrance with signage or other indications of its presence so as to deter would-be robbers.
- Reducing the amount of cash held on the premises after weekend trading and TAB activity, indicated by signage or otherwise that it had been done.
PAB Security Pty Ltd v Mahina  NSWCA 125
Mr Mahina was a security guard on duty outside Rogues Night Club in Oxford Street, Sydney on 29 June 2002. PAB Security Pty Ltd (PAB) was his employer which had been contracted to provide security services to the nightclub. During the course of the evening, there was an altercation involving Mr Mahina and other security guards on duty and patrons. As a consequence, a threat was made by one of the patrons, namely 'We're going to come and get you. We are going to kill you' which Mr Mahina thought was directed personally at him. Mr Mahina was concerned for his welfare and alleged he asked PAB if he could go home or alternatively that he be rotated to inside the nightclub as opposed to being positioned at the entrance. Both requests were refused. Later that evening, a gunman arrived at the entrance to the nightclub where Mr Mahina was stationed. The gunman fired six shots, three of which struck Mr Mahina. The gunman was the brother of the patron who had made the threat.
Mr Mahina commenced proceedings in the District Court alleging PAB breach its duty of care to provide him with a safe work environment including protecting him from random or unpredictable criminal behaviour by a third party. Mr Mahina was successful in the District Court. PAB appealed to the Court of Appeal on liability only. PAB argued the intervention of a gunman was outside the realm of reasonable foreseeability.
The Court of Appeal was satisfied, given the terms of the threat made, that it was foreseeable to PAB that the refusal to rotate Mr Mahina involved a risk of injury to him in the event the perpetrator or someone on his behalf came back to carry out the threat. That risk of injury materialised. Accordingly, the Court of Appeal held PAB had breached its duty of care to Mr Mahina for failing to provide him with a safe work environment.
Quintano v BW Rose Pty Ltd & Anor  NSWSC 446
On 15 December 2002, Mr Quintano suffered traumatic brain damage when he was shot in the head during a fight which broke out amongst patrons at a nightclub operated by the BW Rose Pty Ltd (Rose). He claimed damages against Rose and AWS Security Services (AWS). Rose had contracted with AWS to provide security services at the nightclub.
There was a dispute over exactly what services AWS had been contracted to provide to Rose. After considering the evidence, Justice Brereton found AWS was contracted to provide only one security guard on Friday and Saturday nights from 12am to 6.30am. AWS was not contracted to provide metal detectors. Along with the AWS security guard, Rose employed its own security guard who was also on duty that night.
A licensee/operator's duty to exercise reasonable care for the safety of patrons depends on the knowledge of the licensee/manager of facts which may require intervention to protect patrons from a foreseeable risk of harm. While this duty is a delegable one (such as where a competent security firm has been engaged to carry out the security services), as the two security guards, including the AWS guard, were under the direction and control of Rose, Justice Brereton found Rose had not delegated responsibility for the provision of security services.
The duty of care to protect patrons from the criminal activities of third parties does not arise solely out of the fact the premises were licensed premises. Justice Brereton found that it was reasonably foreseeable that unless proper security measures were in place, some level of violence or anti-social behaviour where patrons might be injured was foreseeable considering the history of incidents at Rose, the demographics of the clientelle, the operating hours, the location of Rose and the supply of alcohol.
After hearing evidence from security experts, Justice Brereton concluded that to provide a reasonable level of security, Rose required at least three security guards. As Rose only had two security guards on site, Rose failed to exercise reasonable care for the safety of its patrons. While it was argued by Quintano that Rose was negligent for failing to use metal detectors to detect patrons entering the premises with a handgun, his Honour was not satisfied the use of metal detectors was standard practice in 2002 for the type of premises and accordingly found Rose did not breach its duty of care for failing to use metal detectors.
As Rose had not delegated responsibility for the provisions of security services to AWS, his Honour found there was no breach of duty by AWS. AWS was not bound to do anything more than competently and prudently discharge the duties it was engaged to provide.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.