Citation: Ross Brown v Drummoyne Sports Club Ltd [2007] NSWDC 170
Court: District Court of New South Wales
Date: 8 March 2007
Judge(s): Phegan DCJ
Background
The plaintiff was a semi-retired pharmacist and social member of the defendant sporting club, who visited several afternoons a week for drinks with friends. On the evening of 10 July 2002, he returned to the club after initially leaving, and was present in the bar area during what was described as a significant badge draw night, with the jackpot amount displayed on a whiteboard visible to patrons.
Shortly after returning, three heavily built men in white overalls, gloves, and hoods entered the bar area and demanded that patrons get on the floor. During the armed robbery that followed, the plaintiff suffered physical injury. He subsequently brought a claim in negligence against the club as occupier of the premises.
The central dispute concerned whether the defendant owed and breached a duty of care to protect the plaintiff from injury caused by the criminal acts of third-party intruders, and, if so, what damages flowed from that breach.
Legal Issues
- Whether the defendant club, as occupier, owed the plaintiff a duty of care in respect of injury caused by the criminal acts of third parties
- Whether the defendant breached that duty, having regard to the foreseeability of an armed robbery and the adequacy of security measures in place
- The extent of the plaintiff's injuries and the causal connection between the incident and his claimed losses
- The appropriate quantification of damages, including past and future economic loss
Decision
The court found in favour of the plaintiff and held that the defendant had breached its duty of care as occupier. The circumstances of the robbery were relevant to the foreseeability analysis: the premises held a regularly advertised and publicly known badge draw, with the jackpot amount displayed on a whiteboard visible throughout the bar. The court's reasoning treated the publicly known accumulation of prize money as a feature that increased the foreseeability of a targeted robbery, making the risk of such an event one the club was required to take reasonable steps to address.
On damages, the court accepted that the plaintiff suffered genuine physical and psychological harm as a result of the incident, though the assessment was moderated by uncertainty. A thirteen-week period of inability to work was accepted as directly attributable to the injuries sustained. However, the plaintiff's subsequent reduction in working hours was not found to be proven as a consequence of the robbery, given his age, a pre-existing heart condition, and changes in the pharmacy's staffing arrangements following a change of ownership.
For the period beyond the initial thirteen-week convalescence, the court declined to award damages calculated on any specific proven reduction in earning capacity. Instead, it applied the High Court's approach of awarding a modest "buffer" or "cushion" sum to account for the unquantifiable impact on the plaintiff's future earning capacity. That sum was assessed at $30,000.
The total damages awarded were $72,855.31. The defendant was also ordered to pay costs, with the basis of the costs order varying around a critical date in September 2006, which affected whether costs were assessed on the ordinary or indemnity basis.
Orders Made
- Verdict and judgment for the plaintiff in the sum of $72,855.31
- The defendant to pay the plaintiff's costs on the ordinary basis up to 18 September 2006, and on an indemnity basis after that date, subject to costs orders made in favour of the defendant on 21 September 2006
Key Takeaways
- The District Court held that an occupier's duty of care can extend to harm caused by the criminal acts of third parties where the risk of such acts was reasonably foreseeable in the circumstances of the particular premises and their operations.
- Where a venue publicly advertises or displays the value of prize money available on its premises, that fact may contribute to findings about the foreseeability of a targeted robbery and therefore inform whether the occupier took adequate precautions.
- A plaintiff's inability to prove that a post-injury reduction in work capacity was caused by the relevant incident, as distinct from other factors such as age, pre-existing health conditions, or workplace changes, will limit recovery for economic loss beyond any proven period of incapacity.
- Where precise quantification of future economic loss is impossible, the court confirmed that a modest buffer or cushion sum, consistent with High Court authority, is the appropriate remedy rather than a damages figure derived from an unproven reduction in earning capacity.
- Costs orders can be split at a particular date, with indemnity costs applying from that point where a plaintiff has made an offer that went unaccepted and ultimately proved more favourable than the judgment obtained.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW)
Cases:
- Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254
- Cole v South Tweed Heads Rugby Leagues Club [2004] HCA 29
- Raimondo v The State of South Australia (1979) 23 ALR 573
- Husher v Husher (1999) 197 CLR 138
- Proprietors of SP17226 v Drakulic (2000) 55 NSWLR 659
- Ashrafi Persian Trading Company v Ashrafinia [2001] NSWCA 243
- Makita v Sprowles (2001) 52 NSWLR 705
- State of New South Wales v Godfrey [2004] NSWCA 113
- English v Rogers [2005] NSWCA 327
- Spedding v Nobles [2007] NSWCA 29
- Wagstaff v Haslam [2007] NSWCA 38