Witnesses safe
The rule that barristers have immunity from negligence claims for work connected with court hearings is reasonably well-known. The fact that witnesses have a similar immunity is less well-known; but that rule has recently been invoked in the NSW Court of Appeal.
Mr Griffiths was a pharmacist. In 1999, NSW police seized a quantity of substances from industrial premises he operated. He was later arrested and charged with being knowingly concerned in the manufacture of a prohibited drug, methcathinone. The seized substances were provided to the Australian Government Analytical Laboratories (AGAL), which is operated by the Commonwealth, for analysis. One of AGAL’s analysts, Mr Ballard, analysed the seized substance and subsequently provided a certificate stating the substance was methcathinone.
Mr Griffiths stood trial and was found guilty. He appealed to the NSW Court of Criminal Appeal. The appeal was upheld and a verdict of acquittal was entered. The basis for the acquittal was that Mr Ballard had manipulated the testing of the substance so as to produce an analysis that the substance was methcathinone.
Mr Griffiths then sued both the Commonwealth and Mr Ballard, alleging that they had breached a duty of care owed to him when issuing the certificate of analysis. After the proceedings were commenced, the Commonwealth and Mr Ballard applied to dismiss the action summarily. That application was successful before a Master in the Supreme Court; based on a finding there was no reasonable cause of action as the defendants were protected by witness immunity.
Mr Griffiths appealed to a single judge of the Supreme Court. On appeal, Justice Rothman dismissed the proceedings against Mr Ballard but restored the proceedings brought against the Commonwealth; finding there was an arguable case that witness immunity did not apply to the Commonwealth.
The Commonwealth appealed against that decision to the Court of Appeal; and Mr Griffiths filed a cross-appeal alleging that the proceedings against Mr Ballard should not have been dismissed.
Justice Beazley delivered the court’s unanimous decision; and noted that witness immunity protected persons from being sued both as a result of evidence the person gives in proceedings; and also in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The reason for the rule, like barristers’ immunity, was founded in the public policy consideration that judgments should be considered final.
In this case, Mr Ballard had given evidence about all the tests he conducted and there was no suggestion that the certificate of analysis was prepared other than as part of the steps preparatory to trial. There was no possible basis to suggest his earlier or later testing was carried out for any purpose not associated with the prosecution of Mr Griffiths.
A trial based upon the negligent performance of Mr Ballard would necessarily involve the retrial, not only of the evidence given at trial but also of the preparatory steps taken in preparing the certificate of analysis. Accordingly, such a “collateral attack” on the first criminal proceeding would be inconsistent with the underlying basis of witness immunity.
So far as AGAL was concerned, Justice Beazley noted that a person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the actual wrongdoer. Since Mr Ballard had witness immunity, AGAL was also protected against Mr Griffiths’ claim.
Mr Griffiths also sought to argue that AGAL was liable independently of Mr Ballard’s actions, because it did not have proper procedures and protocols in place to ensure testing was carried out correctly. Justice Beazley however pointed out that such an argument would require calling evidence in court to support the allegation against AGAL. This would also offend the underlying rationale of witness immunity.
Finally, Justice Beazley noted that AGAL’s work was integral to law enforcement. Imposing a duty of care on it would place conflicting claims or obligations on its functions and would potentially give rise to indeterminate liability. Accordingly, even if witness immunity did not apply, AGAL owed no duty of care to Mr Griffiths that could found an action in negligence. Similar considerations applied to Mr Ballard, such that he also did not owe a duty of care to Mr Griffiths either.
Commonwealth of Australia v Griffiths [2007] NSWCA 370
Council avoids club liability
Do members’ clubs owe a duty of care to patrons akin to that owed by licensees of licensed premises when it comes to criminal assaults? The answer from the NSW Court of Appeal seems to be a qualified “no”; although a definitive statement may need to await another case.
Ms Conti was a member of the Beaton Park Leisure Centre, which was owned and operated by the Wollongong City Council. In June 2001, she attended a class at the centre, and then went to the change room. She found that all four shower cubicles were being used by people – later identified as minors – who were screaming and using foul language. After waiting some five minutes (there was a two-minute limit on use of the showers), she sought assistance from centre staff. Initial attempts to remove the minors failed, and Ms Conti then sought assistance from another staff member, Ms Jurmann. She accompanied Ms Conti back to the change room and asked the minors to leave the showers, get dressed and leave the centre.
At that stage, they emerged from the showers, but a 16 year old girl was verbally abusive towards Ms Conti and Ms Jurmann. Ms Jurmann waited about five minutes, but the minors made no attempt to leave. Having asked them again to leave, Ms Jurmann said she would call the police to have them removed. Ms Jurmann left the room to call the police. She asked another staff member to call the police and another to go to the change room. Ms Conti remained in the change room, and after some relatively minor incidents, was assaulted by the 16 year old, who punched her in the eye.
Ms Conti sued the Council, arguing that its staff had failed adequately to handle the “escalating state of affairs in the change room”. She argued that the Council had been negligent in allowing both the minors and her to remain in the change room without any member of staff present when the situation was escalating; and that either someone should have remained in the change room, or should have directed her to leave the change room until the minors had been removed by the police or had left the premises. Ms Conti’s claim was dismissed at trial, and she appealed to the Court of Appeal.
In the Court of Appeal, Ms Conti’s representatives acknowledged that the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil meant that, in general, an occupier (in this case, the centre) had no duty to take reasonable care to prevent criminal conduct by third parties. She argued however that the case was more akin to the licensee cases, in which the courts had consistently acknowledged an exception to the Modbury Triangle principle in imposing a duty on occupiers of licensed premises to their patrons.
Delivering the principal judgment, Justice McColl found that the centre was in a position to remove Ms Conti from the change room. The real question however was whether there was any foreseeable risk to her. The evidence established that the minors (who ranged in age from 5 to 16) were behaving in an irresponsible manner; but apart from the 16 year old pointing her finger at Ms Conti, had not exhibited any violent behaviour. In that context, Ms Jurmann had not been negligent in failing to remove Ms Conti from the change room after the minors had refused to leave.
Conti v Wollongong City Council [2007] NSWCA 334
Divided opinion
For many years, before the High Court’s decision in Rogers v Whittaker, the standard of care owed by a medical practitioner to a patient was essentially gauged by the practices of a “reasonable body” of the profession. In other words, if medical opinion was divided on a course of treatment (for example), a doctor would not be negligent in adopting one treatment in preference to another.
That position was largely eroded by Rogers v Whittaker, which found that the issue of negligence was one for the court, not for the medical profession, to decide. Since the passing of the Civil Liability Acts in the various States however, the courts are now required to take professional opinion into account. How that operates in practice however has recently been illustrated by a decision of the NSW Court of Appeal.
On 11 February 2001 Mr Halverson Halverson, who was then aged 18, suffered a cardiac arrest and hypoxic brain damage. He was left with catastrophic injuries, for which he and members of his family sued a general practitioner, Dr Dobler.
After the cardiac arrest, it was found that Mr Halverson suffered from Long QT Syndrome (LQTS) – essentially a type of arrhythmia. On two occasions prior to February 2001 (in 1995 and 1997), Mr Halverson suffered syncopal events (a brief loss of consciousness). On 4 February 2001 he had a further syncopal event.
The evidence indicated that recurrent cardiogenic syncopes are a primary symptom of LQTS preceding a life-threatening event. Dr Dobler was consulted in relation to each of the three syncopal events. He was also consulted concerning migraine headaches on 1 February 2001. On that occasion, Dr Dobler found a heart murmur.
Mr Halverson argued that, taking into account the syncopal events and the heart murmer, Dr Dobler should have considered a possible cardiac problem and ordered an ECG and referral to a cardiologist. He argued that Dr Dobler was in breach of his duty of care, and that if either of these steps had been taken, his LQTS would probably have been identified and appropriate measures would have been taken which would have avoided the cardiac arrest and its consequences.
The trial judge accepted medical evidence called by Mr Halverson, and found that Dr Dobler had breached his duty of care; and that the breach was a cause of Mr Halverson’s injuries. Dr Dobler appealed to the Court of Appeal.
One focus of the appeal was on s.5O of the NSW Civil Liability Act. That section provides that a professional does not incur any liability in negligence if they “acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”. As is usual in such cases, Dr Dobler called medical witnesses (general practitioners) who supported his approach. It was argued that this established a “widely accepted… practice” that Dr Dobler could rely on for the purposes of s.5O.
Delivering the Court of Appeal’s judgment, Justice Giles found that no error had been shown in the trial judge’s reasoning that, leaving aside s.5O, Dr Dobler had been negligent.
Turning to the question posed by s.5O, Justice Giles noted that the trial judge considered that the evidence of the general practitioners called for Dr Dobler should not be accepted as establishing widely accepted professional practice supporting the manner in which the appellant acted. That was because the expert evidence called for Mr Halverson all pointed to those opinions being unacceptable in their own right as establishing the asserted “professional practice”.
The trial judge had not been shown to be in error in coming to that conclusion, and as a result, Dr Dobler’s appeal was dismissed.
Dobler v Halverson [2007] NSWCA 335
Insecurity for security fire
Actions of security guards seem to attract considerable attention these days, and one security firm has found itself on the wrong end of a “hiding” from the NSW Court of Appeal.
In December 2001, Mr Sprod sustained serious head injuries in an altercation with bouncers at a pizza shop in the Sydney suburb of St Marys. The evidence indicated that Mr Sprod was behaving aggressively and generally making a nuisance of himself in the shop. The owner called the security guards employed by Public Relations Oriented Security Pty Ltd (PROS). They were working at a nearby club, but who were available to come to the pizza shop pursuant to an earlier arrangement. After confronting Mr Sprod and taking him outside, the altercation continued for some 20 minutes. Two of the security guards then took him into a laneway and “kicked his head in”; while two others stood at the entry to the laneway, apparently to deter others from entering.
At trial, the guards were found to have criminally assaulted Mr Sprod, but that their employer PROS was not liable because they were not acting in the course of their employment when the assault occurred. Mr Sprod appealed to the Court of Appeal. The trial judge found they had acted out of personal animosity.
Justice Ipp (with whom the other justices agreed) noted that there was divergent commentary in the decided cases on when an employer would be vicariously liable for criminal acts by its employees. The crucial question however was whether the assault was an independent act; or whether it was an act within the scope of employment.
In this particular case, Justice Ipp found that the trial judge had erred in finding that the security guards were motivated by personal animosity. There was evidence that, despite provocation by Mr Sprod, the guards did not assault him until taking him to the laneway – suggesting they had not lost their tempers with him. In addition, when they returned to the pizza shop, they informed those present that Mr Sprod would not be causing any further trouble that night because they had just “kicked his head in”. Finally, there was the fact that two other guards stood at the entry to the laneway.
Based on that evidence, Justice Ipp found that their primary motivation was not personal animosity, but rather a desire to protect the pizza shop and its customers from further trouble from Mr Sprod. Since that was part of their jobs, it followed that they should be considered to have acted in the course of their employment in assaulting him. PROS was therefore liable for Mr Sprod’s injuries.
Sprod v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319
Short cuts
A patron whose elbow was broken by a security guard while being ejected from a nightclub was not guilty of contributory negligence, despite failing to comply with earlier requests to leave. Since the claim was based on the intentional tort of assault, there was some doubt about whether contributory negligence was even applicable. Assuming it was however, the patron’s refusal to leave did not contribute to the security guard applying excessive force to his arm, and he did not physically resist being ejected. As a result, he had not failed to take reasonable care for his own safety.
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
An accident happening while a vehicle is partly on a road and partly off it is still an accident that “happens on a road” for the purpose of Queensland’s CTP legislation. A worker was injured when a mobile crane ran over his leg. The accident happened as the vehicle was turning from a road into a private driveway; but the actual point of impact was on the private property. The Queensland Court of Appeal found that the legislation required consideration of the vehicle as a whole. Since it was still partly on the road at the time, that was sufficient to satisfy the requirement that the accident happen “on a road”.
Nominal Defendant v Duntroon Holdings Pty Ltd [2007] QSC 338
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