(CHIN -v- DAYMASTER PTY LTD  WADC 80)
On Tuesday, 28 December 2010, shortly after closing time at the Home Hardware & Plumbing store (store), the plaintiff (Ms Chin), was assaulted in an attempted armed robbery of by three men, including the second defendant (Mr Hall).
The store was owned and operated by the first defendant, Daymaster Pty Ltd (Daymaster). At the material time, Mr Hall was employed at the store by Daymaster. Following the attempted robbery, Mr Hall and two others pleaded guilty to an offence of aggravated assault upon Ms Chin with intent to commit a robbery. Ms Chin sought to recover damages from Daymaster in respect of her injury, loss and damage sustained as a result of the assault upon her person.
Daymaster accepted that, as the occupier of the store, it had a duty of care towards Ms Chin, as a customer, to see that she would not suffer injury or damage (duty of care). The Court was required to establish the scope of Daymaster’s duty of care by answering whether:
- the store manager was negligent by permitting the Ms Chin entry into the store after hours when all perimeter doors were not locked;
- Mr Hall was acting in the scope of his employment with Daymaster, and if so, whether he was negligent in failing to ensure that all perimeter doors were locked;
- Daymaster is vicariously liable for any alleged negligence of the store manager and/or Mr Hall, respectively; and
- Daymaster failed to assess risk following the breakdown of its CCTV system over the cash tills used in the store.
The thrust of Ms Chin’s claim was that Daymaster, through its staff, did not comply with the store closing procedure by allowing Ms Chin into the store after hours when the rear sliding door had not been locked. Ms Chin’s case is that the store’s staff failed to lock this door, thereby allowing Mr Hall, the other two offenders and Ms Chin access into the building being causative of the assault.
In cases of this nature, the law states that where the nature of the harm suffered by a visitor to a premises (store) was physical injury inflicted by a third party over whose actions the occupier had no control, the relevant duty must be a duty related to the security of the visitor. It must have been a duty to take reasonable care to protect the victim from conduct, including criminal conduct, of the third party. In such circumstances, it is exceptional to find in law a duty to control the actions, including criminal conduct, of another person to prevent harm to strangers, unless the case is one of a special relationship involving a duty to control that other person’s actions. It is trite that criminal behaviour is unpredictable and that is one reason why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
Regarding vicarious liability, the law states that for an employer to be vicariously liable for the wrongful act of its employee, that act must have been committed in the course or scope of employment. The difficulty is often in determining that course or scope of employment. This can be tested by asking whether the act was authorised by the employer or was an unauthorised mode of doing some act authorised by the employer or even an unauthorised act, provided the act was so connected with authorised acts that it may be regarded as a mode, although an improper mode, of doing it.
The Court concluded that:
- Ms Chin had failed to prove a special relationship with Daymaster, or that there is something exceptional about her status in the store as a customer, when the three offenders attempted to rob the store and assaulted her. Although she was there after hours, the store had been secured to protect her. Her injuries were not caused by any want of care on the part of Daymaster. Rather, the injuries resulted from the criminal act of the offenders, over which Daymaster had no control, given the manner in which those offenders acted, Mr Hall’s acts were not committed in the course or scope of his employment;
- that the duty of care extended to Ms Chin in those circumstances, the claim nonetheless failed because there was no breach of that duty which caused injury;
- aside from Mr Hall unlawfully hiding in the store and opening the rear sliding door, being a criminal act over which the manager and Daymaster did not have control, the store was otherwise secure for the purpose of Ms Chin’s safety. The manager was not negligent. Ms Chin’s injury was not caused by any want of care by the manager;
- evidence points to the store closing policy having been adhered to by its employees, whether they knew it accorded with a written policy or not. Mr Hall’s criminal activity, together with his two co-offenders, was the sole cause of Ms Chin’s injury. It cannot be said that Mr Hall’s wrongful act of unlocking the rear sliding door was committed in the course or scope of his employment. It mattered not that Mr Hall was an employee of the store;
- Daymaster cannot be held to be vicariously liable for any failure of Mr Hall as the employee to lock the rear sliding door when his very purpose in the store was to unlawfully open that door to enable access into the store by his two co-offenders for the purpose of robbing it.
Ms Chin’s claim dismissed.
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