Occupiers: Q’ special duty to a customer assailed by 3rd party?

Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8

Issue: whether an occupier owed a special duty of care to a customer assailed by a third party.

Facts:

  1. BASTEN JA: At about 11.35am on 17 September 2008 Manuel Gonzalez, the respondent in this Court, approached the automatic sliding doors at the entrance to the Harvey Norman store in Blacktown. As they opened, two young men rushed through, one of whom knocked the respondent over, causing him significant injuries. The men had attempted to obtain electrical goods with false identification papers, but when they realised that their fraud may have been discovered, they turned and fled.
  2. If those were the only facts, it would not be correct to hold the store owner (the applicant) liable in negligence for the injury to Mr Gonzalez.
  3. The respondent relied upon two additional circumstances to justify a claim for damages against the applicant in these unpromising circumstances. The first was that a member of staff in the electrical department, where the men had sought to buy expensive equipment, suspecting that they were attempting to perpetrate a fraud, activated a mechanism which locked the doors to the store. That occurred as the men were approaching the doors in order to leave, having been told to check the status of their account with their bank. The store manager apparently asked them to return to the counter, which they started to do. Shortly thereafter, Mr Gonzalez approached the movement-activated sliding door, which did not open to allow him to enter.
  4. The second circumstance was the action of a salesman in the furniture department who, seeing Mr Gonzalez standing outside the door, and not knowing why it had been locked, released the locking device so that he could enter. It was at that moment that the suspected fraudsters, seeing an opportunity to escape before the police arrived, decamped, knocking Mr Gonzalez to the ground.

 

Held: applying Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 and ss. 5B and 5C of the Civil Liability Act 2002 (NSW) the occupier did not owe a special duty of care in such circumstances. Consequently, there was no breach and the approached for causation (s. 5D) prescribed in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [43]-[44] was not satisfied.

Brisbane Barrister – David Cormack

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