Riley v Francis & Anor S124/1999 [2000] HCATrans 109 (17 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S124 of 1999

B e t w e e n -

SANDRA RILEY

Applicant

and

RICHARD ARNOLD FRANCIS

First Respondent

CHRISTOPHER THOMAS BAXTER t/as VENUE SECURITY

Second Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MARCH 2000, AT 10.28 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please your Honour, I appear with my learned friend, MR B. SLOWGROVE, for the applicant. (instructed by Hunt Partners)

MR L. KING, SC: May it please the Court, I appear with my learned friend, MR R.A. CAVANAGH, for the first respondent. (instructed by Henry Davis York)

MR A.C.A. BRIDGE, SC: May it please the Court, I appear with my learned friend, MR G.J. GROGIN, for the second respondent. (instructed by McCabes)

GLEESON CJ: I think you need an extension of time?

MR TOOMEY: We do, your Honour.

GLEESON CJ: Is that opposed, Mr King and Mr Bridge?

MR BRIDGE: No, your Honour.

MR KING: No, your Honour.

GLEESON CJ: Yes, you have that.

MR TOOMEY: Thank you.

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Your Honours, on 16 December 1988 in a night club in the west of Sydney the applicant was grievously injured when a beer glass was thrust into her face, disfiguring her and slicing off part of her nose. This occurred on fourth of four occasions on which she had come into dispute with a Ms Kell, who was the assailant. The first time was when there was a dispute over a table, and that was merely an oral dispute. The second time was when the applicant sought to leave the night club with her friend and went into the women's toilet. The assailant, Kell, followed her in and assaulted her. The applicant defended herself and Kell left. Kell came back in to the women's toilet with her boyfriend, one Evans. Evans then seriously assaulted the plaintiff, beating her about the face with his fists.

The applicant's girlfriend, Ms Cicciarelli, ran out of the toilet and called for help in words to the effect that a man was bashing up her girlfriend. Two security officers, Gallagher and Mieczkowski, came into the toilet and, according to Gallagher, saw Evans with his arm against the applicant's neck, forcing her against the wall, and Kell holding the top of her blouse, screaming threats at her. Evans was taken away and ejected from the premises. Bother Gallagher and Mieczkowski went half of the way with Evans; Gallagher went the rest of the way to the door; Mieczkowski went back to the toilet block.

GLEESON CJ: The issue in the case was that the security person's conduct was negligent?

MR TOOMEY: I am sorry, your Honour?

GLEESON CJ: The issue in the case was whether negligence was shown?

MR TOOMEY: Yes, breach of duty of care.

GLEESON CJ: Yes.

GUMMOW J: By the licensee and by the security people.

MR TOOMEY: By both, your Honour, or either.

GLEESON CJ: But you have concurrent findings of fact against you on that issue.

MR TOOMEY: Well, we have something to say about that, your Honour, because they are not the same findings of fact. There was a serious and important divergence between the findings in the Court of Appeal and the findings of the learned trial judge.

GLEESON CJ: What was that?

MR TOOMEY: The trial judge found, in effect, that it was not foreseeable that Ms Kell would give effect to a violent propensity. The Court of Appeal said, at page 26, I think it is - I am sorry, page 24, your Honours, at line 11:

Mr Gallagher and Mr Mieczkowski went into the toilet and saw Mr Evans holding the appellant against the wall. Ms Kell was present, but they did not see her actually striking the appellant. It seems that at this point she was holding the appellant's blouse, and an inference of participation with Mr Evans would have been readily available to the security staff.

Now, that, in our respectful submission, is contrary to the finding of his Honour the trial judge at page 12 which was crucial to his decision, page 12, line 41:

There was no evidence however that Mr. Mieczkowski knew or should have known, in the circumstances, of the alleged violent nature of Kell -

Now, that, in our respectful submission, is not a matter of concurrent findings of fact. On crucial facts, there is a divergence between the first court and the second court.

GLEESON CJ: But it is the finding, is it not, on page 12, line 50, that was the essential finding that there was no negligence in the behaviour of anybody?

MR TOOMEY: Yes. Your Honour, it was, but it turned, with respect, as is apparent from the passage I just read your Honours, the passage on 13, at line 6:

In my view that Kell would act as violently as she did towards the Plaintiff was not reasonably foreseeable.

At 13, line 52:

It would in my view be unreasonable to expect them to have anticipated the violent assault perpetrated by Kell upon the Plaintiff -

It is on that basis that his Honour made his ultimate finding that they act reasonably. His Honour the trial judge, we say, misstated what he had to consider. It was not question of whether it was foreseeable that Ms Kell would strike the applicant with a glass.

GLEESON CJ: But the issue in the case, the factual issue in the case, was whether it was reasonable to expect the people in charge to do anything more than they actually did, and at page 26, line 40, there is the finding, is there not, of the Court of Appeal, of "attempting to calm Ms Kell" and telling her "she must leave, was properly thought sufficient".

MR TOOMEY: Yes, that is so, and that is what we quarrel with, but we quarrel not merely on a factual basis. There was an important dimension to this case which, although it was clearly argued, does not seem to have been understood by the trial judge and is not really dealt with by the Court of Appeal. When Mieczkowski came back from helping Gallagher to remove the assailant, Evans, the applicant, Ms Riley, was leaving the toilet on her way, she said, to leave the club. Ms Kell was then approaching the toilet and had begun what his Honour found was unprovoked abuse of the applicant. Mieczkowski barred the applicant's exit from the toilet.

Now that, in our respectful submission, was an unlawful restraint, and we have provided to your Honours the case of Connors v Pearson, the Irish case, which was the only case directly on the point, where it is said that there is no right to restrain in respect of danger, unless one is a peace officer, and we have also provided to your Honours the extract from Clerk & Lindsell (16th Edition) where the learned authors say that there is no right - they cite Connors v Pearson, and they say there is no right to restrain the innocent party in respect of an imminent assault, unless one be a magistrate or a police officer, and that is in cases of a threat of a general breach of the peace.

GLEESON CJ: If a brawl breaks out in a night club, how do you decide who is the innocent party?

MR TEHAN: Well, your Honour, you certainly know if you have gone in and you have found that, in the first place, Ms Riley is leaving the toilet peaceably. She is approached by Kell abusing her. Kell has been seen by the security officers in the toilet with her boyfriend assaulting her. There can, in our respectful submission, not be much doubt who was the innocent party and who was the assailant, nor that the security officers ought to have known of it, and I remind your Honours of the finding at 24 by the Court of Appeal, an inference of participation by Kell with Mr Evans in his violent assault on the plaintiff would have been readily available to the security staff.

If our characterisation of the law be right, then Ms Riley was being unlawfully restrained. She was being prevented from leaving the club, and it was while she was in that state of restraint that she was assaulted. It is not a trivial point, it is a basic point of liberty, and once control over one's person has been taken by another person, then the standard of their duty to protect the person whom they have restrained must be very high, and it was never truly considered.

His Honour the trial judge, at page 13, had this to say, line 19, your Honours:

Although it is true, as submitted by Mr Slowgrove, that Mr Mieczkowski was, with his own body, separating -

that should be -

the two women and to that extent was preventing the Plaintiff from leaving the washroom there was, as she conceded in the course of her evidence, nothing to prevent her from retreating further into the room away from the doorway where Mr Mieczkowski was barring the entrance of Kell.

Well, that is an irrelevant consideration. That is to say that the person who is imprisoned has the power to move around their cell. There was no reason why the plaintiff's right to do what she intended to do, to leave the toilet and to leave the club, should have been restrained, and once it was, there is every reason in principle why the law should impose a strict duty on the person who is her gaoler to protect her. What their Honours did, both at first instance and in the Court of Appeal, was to consider the matter as if it were simply an action for negligence with no special features. That this point was raised and argued before the trial judge is plain from the passage on page 12 of the application book at line 26.

Mr. Slowgrove next submitted that the duty of care owed to the Plaintiff in tort was given "more specific content in that a special relationship was created by the First and Second Defendant through Mr. Mieczkowski who assumed responsibility for the Plaintiff's safety by barring the entrance to lady's toilet and protecting the Plaintiff from Ms Kell.....In doing so the Plaintiff became a person of special vulnerability and dependence given the violent nature of Ms. Kell."

Your Honours, in the light of that, and we say the higher than normal duty that was created because of what Mieczkowski had done, can we just look at what the trial judge found and the Court of Appeal found. Ms Kell was standing in a position where she could strike the applicant. That that is so is proved by the fact that she did strike the applicant. His Honour's reason for finding that there was no tort, no lack of reason in the security officers was that they could not have foreseen the particular violence. Their Honours in the Court of Appeal did not agree with that. What they said at page 26 was - I am sorry, your Honour, it think I do not have my own book, here it is - at page 26, line 44:

That Ms Kell had a glass, or any other object with which she might act as she did, was not known -

that is a factual error, but in any event -

and that she would be able to injure the appellant notwithstanding Mr Mieczkowski interposition between them, would have been seen as highly unlikely.

Your Honours, Mr Mieczkowski interposition was such that the assailant was able to raise her arm and strike the plaintiff. When she was in that position, when she had a proven violent propensity, how can it not have been reasonably foreseeable that she might injure the plaintiff? For those reasons, your Honours, we say that their Honours failed to consider the special circumstances which arose from Ms Riley's restraint by Mieczkowski and they arrived at a conclusion in applying the test of foreseeability which must be wrong. It was proven wrong by the facts and even without hindsight, to say that a young woman who had actually brought her boyfriend into a toilet for the purpose of striking the plaintiff and had then threatened the plaintiff, that it was not foreseeable that she, standing within arm's length of the plaintiff, might injure her, we say that that was not a finding that was open.

May I just take your Honours to the passage from Clerk & Lindsell, that is from the 16th Edition at page 984.

GLEESON CJ: Yes?

MR TOOMEY: It is the passage beginning with the words "Where a person" at about point 3:

Where a person intervenes to stop an imminent breach of the peace he must have reasonable grounds for his belief that the person he detains is about to commit a breach of the peace. An honest but mistaken belief that a breach is imminent will not suffice. In determining whether the grounds for preventive action were reasonable the immediacy of the threat will be considered. In one case, police were held to be entitled to stop pickets in cars one and a half miles from a working mine -

then:

Such an action at a further geographical move would have been unlawful. Except in the presence of imminent danger, no one may intervene to detain any person not committing a breach of the peace in order to protect that person from apprehended violence.

And the notes are, 87 - I am sorry, Connors v Pearson is cited for that proposition. Note 87:

Even in case of imminent danger the existence and extent of the power of "protective arrest" of an innocent person remained unsettled, and there is no authority for extending this power to any person other than a magistrate or officer the peace -

Now, your Honours, there is, so far as our researchers have revealed, no finding on this matter in Australia; it has not been considered by the Australian courts. In our respectful submission, it is an important point and what flows from it in the law of tort is an important point. What duty does it impose on the person who does restrain someone for the purpose of protecting them without legal right to do so?

My learned junior points out to me that at page 12 the learned trial judge also expressed the view at line 44 that the evidence did not:

justify a finding that Messrs Gallagher and Mieczkowski or either of them assumed responsibility in any way for the Plaintiff's safety.

Well, that, in our respectful submission, was plainly a wrong finding: they did. Mieczkowski intervened, he held the plaintiff back in the place from which she intended to exit and as he admitted, he attempted to mediate, rather than what we say he should have done, either removing Kell, not necessarily from the premises, but to a place where she was not within arm's reach of the applicant, or in some other way preventing this incident occurring. May it please your Honours.

GLEESON CJ: The applicant in this case is confronted with concurrent findings of fact to the effect that there was no negligence on the part of either respondent. The Court is of the view that the case does not raise an issue appropriate to the grant of special leave to appeal, and we are not persuaded that the interests of justice require that special leave should be granted. Accordingly, the application is refused.

Can you resist an order for costs, Mr Toomey?

MR TOOMEY: No, your Honour.

GLEESON CJ: The applicant must pay the respondents' costs of the application.

We will withdraw for a short time to reconstitute.

AT 10.49 AM THE MATTER WAS CONCLUDED