Soutter v P & O Resorts Pty Ltd
[1998] QCA 51
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Soutter v P & O Resorts Pty Ltd[1998] QCA 51
- Add to List
Soutter v P & O Resorts Pty Ltd[1998] QCA 51
Reported at [1999] 2 Qd R 106
Soutter v P & O Resorts Pty Ltd[1998] QCA 51
Reported at [1999] 2 Qd R 106
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5030 of 1997.
Brisbane
[Soutter v. P & O Resorts P/L & Anor.]
BETWEEN:
MICHELLE ELIZABETH SOUTTER
(Plaintiff) Appellant
AND:
P & O RESORTS PTY LTD
ACN 009 962 887
(First Defendant) First Respondent
AND:
HERON ISLAND PTY LTD
ACN 009 724 921
(Second Defendant) Second Respondent
Pincus J.A.
McPherson J.A.
Fryberg J.
Judgment delivered 13 March 1998
Reasons for Judgment delivered 24 March 1998
Separate reasons for judgment of each member of the Court; all concurring as to the order made.
APPEAL DISMISSED WITH COSTS
CATCHWORDS CIVIL - personal injuries - appellant was standing on a dance floor when struck from behind by a man - man was drunk and dancing wildly - whether second respondent should have ensured that appellant was not exposed to the danger which the man’s dancing constituted - whether second respondent was in breach of its statutory duty - whether Liquor Act 1912 s. 78 gives a right of action to a person injured by the breach when that person is within the class intended to be protected by the statute.
Liquor Act 1912 s. 78
Romeo v. Conservation Commission of the Northern Territory (1998) H.C.A. 5
Chordas v. Bryant (Wellington) Pty Ltd (1988) 20 F.C.R. 91
Hargrave v. Goldman (1963) 110 C.L.R. 40
Abela v. Giew (1965) 65 S.R. (N.S.W.) 485
Pask v. Owen [1987] 2 Qd.R. 421
O'Connor v. S P Bray Ltd (1937) 56 C.L.R. 464
R v. Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 A.C. 58
Counsel:: Mr M Grant-Taylor for the appellant.
Mr P C P Munro for the first respondent.
Mr D B Fraser Q.C. for the second respondent.
Solicitors: Butler McDermott & Egan for the appellant.
O'Mara Patterson & Perrier for the first respondent.
Ebsworth & Ebsworth for the second respondent.
Hearing date: 13 March 1998.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5030 of 1997.
Brisbane
Before Pincus J.A.
McPherson J.A.
Fryberg J.
[Soutter v. P & O Resorts P/L & Anor.]
BETWEEN:
MICHELLE ELIZABETH SOUTTER
(Plaintiff) Appellant
AND:
P & O RESORTS PTY LTD
ACN 009 962 887
(First Defendant) First Respondent
AND:
HERON ISLAND PTY LTD
ACN 009 724 921
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 March 1998
This is an appeal from a judgment of the District Court in a personal injuries action. The appeal was dismissed after hearing argument and these are reasons for that order.
The appellant’s case was that she was standing on a dance floor at the resort on Heron Island when she was struck from behind by a man called Erwin Hoch. It was said on the appellant’s behalf that this was the fault of the second respondent (P & O), the licensee under the Liquor Act 1912 of the premises at which the appellant suffered her injury. The argument was that Hoch was drunk and dancing wildly and that P & O should have ensured that the appellant was not exposed to the danger which his mode of dancing constituted.
The appellant’s evidence was that when she suffered her injury she was standing on the edge of the dance floor and watching the band. She said she was struck from behind and landed on the "bottom of my back" and saw Hoch on the ground in front of her. When asked which part of her body was struck, she answered "probably from beneath my feet, I would say". Hoch’s version was that while he was dancing he felt a bump from behind and turned around and found the plaintiff on the floor. According to Hoch, he helped her up and both continued dancing; the judge did not accept that. The judge’s finding was to the effect that some part of Hoch’s back collided with the appellant. Her injury was, it appears, caused in the fall resulting from the collision.
Mr Grant-Taylor, who appeared for the appellant, did not urge us to differ from the judge as to the basic facts of the matter; his contention was to the effect that on those facts there should have been a finding of negligence against P & O as well as one of breach of statutory duty. The judge’s understanding of the critical facts appears from the following -
"(a) Hoch was an energetic young man who liked going to the disco, and who liked to drink;
- he often danced wildly about the dance floor, flinging his arms and legs about. He occasionally made contact with other dancers;
- he drank a lot at the night club, and was often drunk before this evening;
- on the evening of 7 November he drank continuously at the night club and was drunk before the incident with Ms Soutter;
- the night club staff serving him would have been able to see that he was intoxicated on 7 November, at least by the time of the collision;
- he was dancing wildly about the dance floor, as was his habit when some part of his back collided with Ms Soutter, who was also looking the other way. That collision knocked her legs from under her, so that she fell on her coccyx;
- the fall caused her pain and distress, considerably more severe than the kitchen fall had done. After going to bed she could not sleep, and was in severe pain the next morning when she visited the sister. She told the sister that she had fallen on her coccyx."
"It must have been foreseeable by the licensee that Hoch’s conduct might have caused injury to another patron on or near to the dance floor. He was in the habit of dancing in a wild fashion, moving about the dance floor, while he was affected by liquor. Such an activity could easily be the cause of injury to another patron. It must have been observed by the licensee’s staff."
"There is no evidence that the second defendant had ever received a complaint about Hoch’s conduct. There is no evidence that anyone else had been hurt by him. He had bumped into others. There was no evidence about the limits of acceptable conduct at a disco of this kind, as part of a hotel on an island which attracted tourists, holiday makers, and island workers. The range of acceptable conduct while dancing appears to be a large one - from the sedate, to the stylised ballroom dances, to the vigorous free style found at discos, to "moshing" - a form in which dancers hurl themselves from an elevated position into a crowd of patrons who support them with upstretched arms. Much will depend on the style at a particular venue, and what its patrons accept and expect.
There was no evidence that his style of dancing exceeded that which was acceptable at such a disco. While patrons at this disco engaged in "slam dancing" from time to time (that being an indication of the vigour which was displayed by at least some of the dancers, some of the time), Hoch was not doing that sort of dance on this evening. He was not deliberately coming into contact with the bodies of other dancers. He was drunk, but there was no evidence to show that he was behaving in a disorderly or aggressive fashion."
". . . Ms Soutter was quite aware of Hoch’s habits as a drinker and dancer, saw him in his usual condition when she arrived at the disco this evening, but did not pay him any particular attention, or feel that she should beware of him. She stood towards the edge of the dance floor, with her back towards him."
The judge did not find that Hoch showed a tendency to move quickly backwards while dancing, nor indeed to progress across the dance floor quickly in any direction. The witness McHale who was, counsel for the appellant suggested, accepted by the primary judge, said of Hoch’s dancing:
". . . the arms and legs would fling out around him. Rather than dancing in one particular spot, he would move gradually around the floor".
This has significance in two ways. First, the appellant’s case was that Hoch was "slam dancing", by which was meant moving so as deliberately and firmly to contact other dancers’ bodies. The judge rejected that. Secondly, his Honour found as I have pointed out that it was Hoch’s back which struck the appellant. On the findings, all that could have been complained of was vigorous movement of Hoch’s arms and legs, not of the whole body.
Mr Grant-Taylor argued before us that P & O should have first approached Hoch to persuade him not to dance wildly and, if that persisted, order him off the dance floor and, if he still persisted, order him out of the premises. No doubt a graduated approach of that kind would have been sensible, if P & O was obliged to do anything at all; but the appellant’s difficulty is that the trial judge was not prepared to find that P & O had any obligation to try to alter Hoch’s behaviour. There is no sound basis for disagreeing with that view. Very vigorous dancing must surely always carry with it a heightened risk of injury to others. It appears from one of the passages quoted above that the trial judge thought that Hoch’s style of dancing brought about a foreseeable risk of injury to others, but the judge concluded that his conduct -
". . . falls into what was normally expected at the disco, rather than into the unacceptable category, where the licensee would be expected to intervene".
It is now clear, if the point was ever in doubt, that to show that the defendant had a duty of care and that there was a reasonably foreseeable risk of injury does not necessarily bring an injured plaintiff success: see Romeo v. Conservation Commission of the Northern Territory (1998) 72 A.L.J.R. 208 paras. 75, 79, 123, 128 and 155. In that case, at 128, Kirby J. remarked:
"Insufficient attention has been paid in some of the cases . . . to the practical considerations which must be ‘balanced out’ before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by . . . critics of this area of the law".
The primary judge’s conclusion that P & O was not in breach of its duty and our declining to reverse his Honour’s view do not constitute authority that in no circumstances of the present kind may an injured patron complain. The question is one of degree and circumstances can be imagined in which vigorous dancing could produce such a degree of risk of injury that there would be an obligation to stop or inhibit it. But the present was not such a case. Particularly having regard to the fact that the appellant herself, knowing of the way Hoch danced, did not think it necessary to take any precautions, but stood at the edge of the dance floor with her back to the dancing, and to the fact that there was no suggestion that anyone had complained about the way Hoch was dancing, it would have been going too far for the primary judge to hold that P & O, not having taken steps to slow Hoch down or stop him, was in breach of its legal duty. Further, as I have pointed out, the danger created by Hoch appeared to be from movements of his limbs. It was contact with his back, not alleged to be especially violent, which caused the appellant to fall. In my opinion no ground appears for interfering with the primary judge’s conclusion on the question of negligence.
Breach of Statutory Duty
The appellant pleaded, in the alternative to her case in negligence, that P & O was in breach of its statutory duty under s. 78 of the Liquor Act 1912 which makes it an offence for a licensed victualler to suffer or permit -
"(a) Any person to play any game or sport declared under any law to be an unlawful game or sport in or upon his licensed premises or the appurtenances thereto; or
- Prostitutes, thieves, drug dealers, sexual perverts or deviants, child molesters or persons of notoriously bad character, or drunken or disorderly persons, to be in or upon such premises or appurtenances;".
Mr Grant-Taylor argued that breach of this section gives a right of action to any person injured by the breach so long as that person is within the class intended to be protected by the statute. The decision of the Full Court of the Federal Court dealing with a somewhat similar statute in Chordas v. Bryant (Wellington) Pty Ltd (1988) 20 F.C.R. 91 at first sight suggests the contrary, but it was contended that the case is distinguishable. In Chordas the Ordinance relied on proscribed the selling or supplying liquor to a person when there were reasonable grounds for believing that he was intoxicated. It was contended for the appellant here that s. 78 of the Liquor Act 1912, insofar as it is directed against the presence of drunken or disorderly persons on licensed premises, can have no purpose other than to protect other patrons from injury. But that is plainly not so. Hoch was drunk, but not disorderly; preventing drunks from being on licensed premises might have been thought to protect them from themselves, as well as to raise the tone of the premises. Disorderly persons need not, of course, cause any risk of injury; a person shouting out obscenities might be classified as disorderly although presenting no threat of physical harm. Further, it seems improbable that para. (a), directed against unlawful games and para. (b) insofar as it mentions prostitutes, are concerned to protect patrons from injury.
In Chordas, the provision in question was held to be intended to protect drinkers from themselves. In the context in which it appears, it seems to me unlikely that the reference to drunken persons in s. 78 of the Liquor Act 1912 was inserted only in their interests. I would therefore not regard the reasoning in Chordas as directly applicable.
Courts have been very ready to treat statutes governing conditions at places of work as conferring a right of action as for a breach of statutory duty upon injured employees, but it does not appear to me that the spirit of those cases has ruled in other areas. A strong example of that attitude is the view which was favoured in Hargrave v. Goldman (1963) 110 C.L.R. 40, as to the effect of a statute requiring the occupier of land to extinguish certain fires: 54, 73. Although the purpose of that legislation must surely have been, or included, protection of neighbouring properties, that was apparently thought not to be enough to give rise to a cause of civil action. In Abela v. Giew (1965) 65 S.R.(N.S.W.) 485, it was held that regulations governing the behaviour of operators of motor traffic do not confer any private right of action upon injured persons.
But there are exceptions to this tendency, one being the Queensland decision Pask v. Owen [1987] 2 Qd.R. 421. The question is how one discriminates between cases of that sort and those which reach what appears to be the more usual result. In O'Connor v. S P Bray Ltd (1937) 56 C.L.R. 464, one finds authority for the view that "the question whether a private right of action also arises [in such cases] must be determined as a matter of construction". The passage goes on:
"The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy." (477, 478)
This same difficulty, that the statute seldom gives an indication one way or the other as to whether a private right of civil action is intended to be conferred, has been considered in England in a number of instances, including R v. Deputy Governor of Parkhurst Prison ex parte: Hague [1992] 1 A.C. 58 at 159, per Lord Bridge of Harwich. There one finds a denial of the proposition that the question is whether the legislature intended to confer protection from damage. To find a right of action one must go further and consider whether the intention was to confer one: see at 159, 170, 171. The question is said not to be exactly one of construction: Stovin v. Wise [1996] A.C. 923 at 952.
Where the statute prescribes a relatively modest penalty for breach it may sometimes seem harsh to impose upon the offender, as within the legislative intention, an unlimited liability for damages as well. It will not necessarily be right to do that where the offender would not otherwise be liable to pay damages, for example on the ground of negligence.
In the present case it may well be reasonable to treat the statute as intended to protect a particular class of persons, namely the respectable patrons of the licensed premises, from such harm or annoyance as may be caused by the presence of disreputable characters, thieves, drunkards and so forth. But it appears to me to be a difficult step to go further and say that one should impute to the legislature an intention to grant a civil cause of action. One reason for reluctance to do so is that the categories of people who are to be kept off the premises are rather broadly indicated. Are "thieves" people who have at any time in the past stolen property? Some people might think "sexual . . . deviants" include homosexuals. How intoxicated must a customer be in order to require treatment as a "drunken" person? In my opinion the vagueness of the obligations imposed by s. 78(b) tells against reading it as intended to create a new cause of civil action. Another consideration pointing in the same direction is that it is hardly to be expected that the licensee will be able to discern, without considerable investigation, whether any customers on the premises from time to time might fall within one of these categories.
I have not found any authority on a statute whose drafting appears close enough to s. 78(b) to make its result applicable here. In my opinion no sufficiently strong reason appears to treat the provision in question as giving rise to a civil action for its breach.
It was argued for the respondent that in any event it was not proved that Hoch’s drunkenness was a cause of the appellant’s injury. For all one knows Hoch might have danced in much the same fashion if he had drunk no alcohol. This point, which was succinctly made, is hardly capable of elaboration. The question whether Hoch would, if sober, have danced less vigorously finds no answer in the evidence.
Summary
It was not shown that there is any ground for reversing the primary judge’s conclusion that the appellant did not show that her injury was due to negligence on the part of P & O. Further, in my opinion the statutory provision relied on did not give rise to a cause of civil action, nor was it shown that breach of the provision caused the appellant’s injuries.
The appeal was therefore dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 5030 of 1997
Brisbane
Before Pincus J.A.
McPherson J.A.
Fryberg J.
[Soutter v. P. & O. Resorts P/L & Anor]
BETWEEN:
MICHELLE ELIZABETH SOUTTER
(Plaintiff) Appellant
AND:
P. & O. RESORTS PTY LTD
ACN 009 962 887
(First Defendant) First Respondent
AND:
HERON ISLAND PTY LTD
ACN 009 724 921
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 24 March 1998
I agree generally with the reasons of Pincus JA for the orders made in this appeal.