Ashrafinia v Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Motor Inn S178/2001 [2002] HCATrans 174 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S178 of 2001

B e t w e e n -

AZADEH ASHRAFINIA

Applicant

and

ASHRAFI PERSIAN TRADING COMPANY PTY LTD T/AS ROSLYN GARDENS MOTOR INN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 10.26 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC: May it please the Court, I appear with MR D.J. WILLIAMS for the applicant. (instructed by Carroll & O'Dea)

MR J.E. MACONACHIE, QC: If your Honours please, I appear with my learned friend, MR W.S. REYNOLDS, for the respondent. (instructed by McCabe Terrill)

GLEESON CJ: Yes, Mr Gross.

MR GROSS: Your Honours, this case raises the issue of the scope of duty of care that occupiers of enclosed commercial accommodation premises or dwellings owe to protect guests against violent injury from criminal intruders.

GLEESON CJ: Criminal and, apparently, mentally unbalanced intruders.

MR GROSS: Yes, or a mixture where the balance lies with the given offender. One never knows, of course.

GLEESON CJ: I suppose some fairly well guarded residential premises are Buckingham Palace and I remember some years ago the Queen woke up to find an intruder sitting on the end of her bed. It is pretty hard to guard against people of that ilk.

MR GROSS: Yes, but it has not happened since, your Honour. That does show that security precautions do work. Your Honours, we are conscious of the recent decision of this Court in Modbury. We would submit this case offers the Court an opportunity to address the issues left unresolved by its decision in Modbury. In Modbury the premises were a completely open car park to which members of the public, the plaintiff and any criminal assailants all had equal and unimpeded access. In the present case the premises were enclosed, apparently designed to be relatively secure, and provided in the room where the plaintiff slept were two devices aimed at deterring entry, that is, the lock and the stick.

Secondly, in Modbury, the scope of the occupier's duty was found to be reduced because the security of the plaintiff was more appropriately the concern of the plaintiff's employer than the occupier. Here there is no intermediate party who is the more appropriate focus of responsibility for safety precautions for the plaintiff.

Thirdly, in Modbury the Court emphasised that the alleged duty of care was based on omission by the occupier to take a particular positive step, that is, provide lighting for a longer period. The Court emphasised that there were no positive acts by the occupier. In the present case there was a positive act by the occupier in providing to the door of the room a stick which encouraged the plaintiff to leave the sliding door open, that is, partly ajar, and thus visible from the street as a magnet for attempted criminal intruders.

The defendant itself created the source of the danger, unlike in Modbury. It took the plaintiff to accept the invitation of using the stick rather than the lock, but it was the defendant that created the danger, in the present case, by providing the stick as an available means to secure the door. So, we are concerned with positive acts, not omissions. Fourthly, in Modbury the nature of the precaution which the occupier allegedly failed to take, together with its doubtful capacity to prevent injury to the plaintiff, assisted the Court in limiting the scope of the duty of care.

I think the Court said that a duty should not be found unless there is a real capacity to fulfil it in the manner alleged. In Modbury leaving the lights on for a longer period was not likely to protect the plaintiff from injury. The provision of more light would merely mean, perhaps, that he would be struck but nevertheless be more easily found after he was struck by the baseball bat. It was not found by the Court to be a real cause of the injury.

Here a securely locked door, without the door being ajar, or else a grille, if the door had to be left ajar, is more likely to prevent injury to the plaintiff and represented feasible precautions that not only can be taken but are habitually taken by comparable entities. The fifth difference is that in Modbury there was found to be no element of reliance by the plaintiff on the occupier. Here the nature of an inn, historically, has been as a safe harbour and secure refuge from the perils of the highway.

If we put the legal history of inns aside and the triangular relationship between innkeeper, guest and outlaw, it is clear that hotels and motels customarily provide locks and other security devices for doors and windows and they also provide advice for the protection of guests and their possessions. Travellers and guests invariably rely on innkeepers to provide requisite levels of security because it is the innkeeper who controls the shape and features of the structure and because travellers and guests cannot or are not allowed to bring their own security or locking devices with them.

GLEESON CJ: But how to you protect people against the kind of individual who acted to your client's disadvantage in this case?

MR GROSS: In the present case, the first thing is that you do not leave a door ajar within easy visibility from the street on a ground level unit so as to operate as a magnet for passers-by in the Kings Cross area. Secondly, if in fact you are going to secure it properly, you have two options. You do not provide the stick because providing the stick invites use of the stick to leave the door ajar. The offender will not know that the door is secured. He will only know the door is ajar before he gets there. Alternatively, if you are going to leave it ajar, you provide a security grille over that area, as customarily occurs, so that it is quite easy to protect people who are in ground level apartments or units.

The sixth feature we would like to point to which distinguishes this case from Modbury is that in Modbury there was found to be no element of vulnerability. Here the plaintiff was particularly vulnerable because she was a young female sleeping with her head next to the open part of the door and in open - she was not in open view, certainly - the open door was in open view from the street which was very close by. Being asleep, she was far more vulnerable than Mr Anzil, who was awake, on foot and, arguably, with no greater exposure than any other member of the public using the parking area in either light or dark conditions.

The seventh difference is that in Modbury there was no element of the occupier assuming responsibility for the plaintiff or undertaking to do anything. Here, where a motel accepts a guest to stay in an enclosed room on its premises, which are commercial premises offered to the public, there is arguably an assumption of responsibility by a motel, even if we allow room for debate as to the extent of that responsibility. We can also allow for the fact there might be some debate about the significance of the fact she was a gratuitous guest rather than a paying guest. However, the nature of the establishment may be the same in both scenarios and a gratuitous guest would at least expect an equivalent level of care to that taken by the motel for the protection of a paying guest who was not a member of the family.

The eighth difference is that in Modbury it was found that control which is ordinarily a basis for finding a special relationship, and therefore an exceptional situation, was missing. Your Honours, control has two aspects, obviously, control over the offender or control over the premises. Here a better locking system or protection by bars - and they were alternatives - was a means of control of the border of the premises which is capable of deterring offenders or limiting their opportunities for intrusion. Of course, here the plaintiff was a tempting target as compared to other persons similarly placed in other motels.

GLEESON CJ: You see, your very use of the word "temptation" illustrates the problem. I am trying to think of a way of expressing this that is not unduly coarse but the person who did this act was not a rational person. This was not a thief. This was not somebody trying to improve his situation in life even by unlawful means. This was a crazy person.

MR GROSS: That is the mistake that Justice Heydon made and if I can just explain. His Honour Justice Heydon analysed the facts by saying it must have been a gratuitous act of violence because having got there, there would be no way that he would rationally want to, as it were, break the glass of the door and the like.

GLEESON CJ: But this was a point that did arise in Modbury. What do you assume is a temptation to somebody who engages in a gratuitous act of violence?

MR GROSS: You have to do it in stages. The temptation is for the intruder to go to the open part of the premises in order to attempt to commit an offence. Now, once he finds that he cannot get in the door, being irrational - although Justice Heydon seems to have argued that he is thinking rationally - he can do a number of things. He can act in frustration. He can, for example, make a noise which he fears may wake the sleeping person who is only a few feet away and, of course, he may panic and fear that the person is about to wake up - whether they are waking up or not does not matter - and so he hits them in order to make good his escape. He does not want the occupant to scream out.

Now, it is inherent in any break, enter and steal offence that the offender carries tools with him to get in there but also to protect himself and to make good his escape. Those same tools are always capable of being used on the occupant if the occupant is there or if the occupant, the offender perceives, should be dealt with as a means of making good an escape. Now, that does not have to be a balanced exercise of judgment by the offender. That is what offenders do. They do cross from one section of the Crimes Act to another with ease.

GLEESON CJ: But, unfortunately, we live in a community in which there are a lot of people out on the streets who perhaps in former time would have been in confined circumstances and making a judgment about what might operate as a temptation to them or what might deter them is a very difficult thing.

MR GROSS: Yes. Well, working out in an individual case what precaution will work on an individual offender at large is a separate question from the duty to take reasonable precautions to guard against the risk. In our submission, because you cannot prevent all crime, that does not justify taking no precautions at all, otherwise it would be legitimate for motels and hotels, basically, just to leave the doors open or without locks. So the community expectation is that where precautions can be taken you will take the reasonable ones that do limit the risk.

McHUGH J: Yes, but let it be assumed in your favour that there is a duty of care here, what else could the defendant have done? There was an internal lock on the door. It was the choice of your client. What is the defendant supposed to do, have it locked permanently so that the plaintiff cannot open it? It is a matter for the plaintiff whether she wants to leave the window open or not.

MR GROSS: What the motel keeper should do is not provide that invitation to use the stick. In other words, you do not provide the stick unless you are also providing a grille.

McHUGH J: Well, if you are a fresh air addict, you might take a very dim view of that.

MR GROSS: If you are a fresh air addict, you do not ask for a ground floor room.

McHUGH J: Maybe you do. Maybe you take it. I mean, there comes a time when people have to take responsibility for their own acts.

MR GROSS: But if the responsibility is meant to be that she takes responsibility for leaving the door open, we submit that we might be in the area of comparative negligence here but we are not in a situation where the defendant does not have a duty of care to begin with.

GLEESON CJ: But what if somebody just wanted to have a smoke? That is a good reason for letting them open a window or open the door a bit, is it not, even if they shut it again and close the lock?

MR GROSS: Yes, but then this is a plaintiff who is asleep rather than smoking and, of course, a sleeping female is a far more attractive target than someone smoking a cigarette outside a room.

GLEESON CJ: Yes, but you are criticising the owner of these premises for providing guests with the facility to open the door a bit.

MR GROSS: No, it is rather to leave the door open while they are asleep in the room in that particular vulnerable location next to the open door.

GLEESON CJ: They do not have to. They can close the door and lock it.

MR GROSS: Indeed they can but then, what is the purpose of providing the stick? If you provide the stick, you are basically providing not merely an opportunity but a positive invitation from an experienced motel, "This is what is satisfactory here. Use it."

McHUGH J: Some people like to have the doors open, for a variety of reasons, and it is a choice, but how can it be negligent? I mean, the defendant has provided a lock to lock the door. If somebody chooses not to lock the door - - -

MR GROSS: You do not ordinarily exercise that choice or invite that choice where the room is a few metres away from a main street in the Kings Cross area.

McHUGH J: Logically, your submission must lead to the conclusion that the relationship between motel owner and guests must be that of gaoler and prisoner, that the owner should come around and lock each door from the outside.

MR GROSS: It is not a question of obliging them to take that course, but you do not tempt the uninitiated and the immature into using a device, that is a stick, which leaves a sliding door open and exposes them to unnecessary risk.

McHUGH J: You could hardly call the plaintiff immature. She was a university student, was she not?

MR GROSS: Yes, but this particular motel - and this is the other point - obviously had a greater degree of special knowledge because they knew how many break-ins they had had at the motel premises and so that sort of knowledge basically fixes you - - -

McHUGH J: They were property - eight of the nine break-ins were property offences.

MR GROSS: Yes, but we look at the totality of the circumstances and - - -

GLEESON CJ: This was not a break-in, was it? Did not some crazy person passing by put an iron bar through the gap and hit her about the head?

MR GROSS: Well, that was the end stage. We do not know what happens in advance. We would submit the most likely scenario is if he has a bar of that size, he is using that bar for the usual protective purposes but, in any event, the bar is capable of being used to try and dislodge the stick or, alternatively, as a protection, but if you invite or tempt an intruder that close, you are creating the unnecessary risk. So it is not a question of looking at the end stage, that the assumption is that he acted in a bizarre or irrational manner. Criminals do that sort of thing but you do not create a situation on premises where you bring them into the immediate vicinity of someone who is asleep and expose them to that particular danger. That is where the negligence is.

GLEESON CJ: So the razor wire and the guards in the big bearskin hats around Buckingham Palace might have lulled the occupants into a false sense of security?

MR GROSS: No. We would submit that that question does raise another matter. The argument seems to be that because you cannot keep out the really determined intruder, therefore, you do nothing. You do not put locks on your doors because if you do that he can still use dynamite to get in. There is always a more extreme measure that can used by an offender to get past a precaution. But that does not justify a reasonable property owner and occupier from doing nothing.

GLEESON CJ: But this was not a professional burglar that found his way into the bedroom that I mentioned earlier, nor was it a terrorist; it was a drunk.

MR GROSS: We are talking about Buckingham Palace, now?

GLEESON CJ: Yes.

MR GROSS: It is a measure of the fact that it is a rare and notable occurrence that we should look at and, of course, that shows the fact that reasonable people do take proper precautions and this sort of thing happens with the requisite reduced level that the community looks for. I think that is my submissions.

GLEESON CJ: We do not need to hear you, Mr Maconachie.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter. The application is refused with costs.

AT 10.44 AM THE MATTER WAS CONCLUDED