IN THE QUEENSLAND MOOT

COURT OF APPEAL

First Appellant Hermione Patterson

Second Appellant Kyle Cavill

And

Respondent Gotham Shopping Centre Pty Ltd

Senior counsel who wrote the Outline of

Argument for the Respondent against the Julia Jacobs
First Appellant
Junior counsel who wrote the Outline of
Argument Respondent against the Second Yolanda Jenkins
Appellant

RESPONDENT’S OUTLINE OF ARGUMENT

Represented by Team 4

GROUNDS OF APPEAL:
1. The Trial Judge correctly applied
the law in finding that the scope of
the duty of care owed by Pentos City
Council to the
plaintiff does not extend to
protection from unknown third-party
criminals
2. The trial judge did not err in
finding that no duty of care to
safeguard the Applicant from
psychiatric injury was owed by
the Respondent
GROUNDS OF APPEAL:
1. The Trial Judge correctly applied
the law in finding that the scope of
the duty of care owed by Pentos City
Council to the
plaintiff does not extend to
protection from unknown third-party
criminals
2. The trial judge did not err in
finding that no duty of care to
safeguard the Applicant from
psychiatric injury was owed by
the Respondent
GROUNDS OF APPEAL:
1. The Trial Judge correctly applied the law in finding that the scope of the duty of care
owed by Respondent to the Appellants does not extend to protection from unknown
third-party criminals.
2. The trial judge did not err in finding that no duty of care to safeguard the Second
Appellant from psychiatric injury was owed by the Respondent.

SUBMISSIONS
Hermione Pattinson v Gotham Shopping Centre Pty Ltd
1. A duty of care arises from the reasonably foreseeable risk of injury to others if reasonable
care is not taken.
1.1. The Respondent took reasonable care and exercised reasonable skill despite the
unforeseeability of the risk.
1.2. The installation of lights, security cameras and having patrol guards does not amount
to an assumption of responsibility for that risk.
2. The Respondent had no control over the risk and the vulnerability of the First Appellant.1
2.1. Reasonable foreseeability is a prospective test. Therefore, it must be looked at prior
to the alleged negligent harm occurring. By applying this retrospectively, the
inevitable conclusion will be that the occurrence was reasonably foreseeable through
fault of hindsight bias.
2.2. The Respondent does not have a duty to prevent third party criminal conduct to the
First Appellant as they are unforeseeable and unpredictable. Therefore, there is no
capacity to control the risk of the criminal activity.2
2.2.1. Although the third-party criminals were known, it is unforeseeable that they
would be working on a New York time-zone.
2.2.2. Salient features such as the control by the Respondent over the risk and the
vulnerability of the First Appellant are also important. However, as established
by the authority of Modbury’s Case, the Respondent had no control over the risk
to the First Appellant and the First Appellant was not reasonably foreseen to be
at risk of the harm.3
2.3. This case does not fall within an established category recognised by law to give rise
to a duty of care. Therefore, this is a novel situation in which case the reasonable
foreseeability test is simply a preliminary analysis of the law.4
2.3.1. With reference to point 2.2.1., it was not reasonably foreseeable that any kind
of carelessness by the Respondent might cause damage of some kind to the class
of persons to which the First Appellant belongs.
2.3.2. Nevertheless, the Respondent satisfies a majority of the salient features
established in Caltex Refineries v Stavar at paragraphs [100]-[106].5
2.4. The attackers should be held liable for their own actions.
2.4.1. Even if the patrol cars were monitoring vigilantly and the flood lights were
kept on for a longer period of time, the Respondent could not control the
conduct of independent persons.
2.4.2. The relationship of the Respondent and the third party must be distinguished
from that of a prison authority and a prisoner, as no-one but the prison authority
has: (a) Control of the risk of violence; and (b) Could protect the prospective
plaintiff from violence.6
2.5. A lack of vulnerability is supportive of the absence of a duty of care.
2.5.1. The First Appellant was aware of the risks and could have taken appropriate
precautions.
2.5.2. Due to her incautiousness, she is to bear responsibility. The Appellant ought
not to expect a duty of care to be owed to her as she cannot be considered as
1
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
2
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61.
3
Caltex Refineries (Qld) v Stavar (2009) 75 NSWLR 649
4
Wallace v Kam (2013) 250 CLR 375
5
Caltex Refineries (n 4) [100]-[106]
6
New South Wales v Bujdoso (2005) 227 CLR 1.
 vulnerable in this situation when caution had been advised by the Respondent
beforehand.
3. A person does not breach their duty of care if the risk to the injured person is found to be
insignificant.7
3.1. The probability that harm would occur if significant safety measures were not put in
place is highly likely in this case. That is why strategies were implemented by the
Respondent, despite the risk being unforeseeable and unpredictable.
3.2. The Respondent was under no general duty to care in the case of third-party criminal
conduct, nevertheless, attempts to reduce the potential risks were still made.
Including special warning sent to staff, contractors and retail tenants as well as an
extension of floodlight operation time and vehicle patrols.
3.2.1. However, the fact that a risk is foreseeable does not make it probable.8
3.3. Although the floodlights were mistakenly switched off and the patrol vehicle was
not performing its duties up until exactly 11:00pm, “the fact that a risk of harm
could have been avoided by doing something in a different way does not of itself give
rise to or affect liability for the way in which the thing was done”.9
4. A person is not liable for harm suffered by another person as a result of the
materialisation of an inherent risk.10
4.1. The threat from the criminal third party could not be avoided despite the exercise of
reasonable care and skill.
4.1.1. The Respondent warned people of the inherent risk, therefore, there is no
breach of any alleged duty.11

IN THE QUEENSLAND MOOT

COURT OF APPEAL

First Appellant Hermione Patterson

Second Appellant Kyle Cavill

And

Respondent Gotham Shopping Centre Pty Ltd

Senior counsel who wrote the Outline of

Argument for the Respondent against the Julia Jacobs
First Appellant
Junior counsel who wrote the Outline of
Argument Respondent against the Second Yolanda Jenkins
Appellant

RESPONDENT’S OUTLINE OF ARGUMENT

Represented by Team 4
Kyle Cavill v Gotham Shopping Centre Pty Ltd

7
Civil Liability Act 2003 (Qld) s 9(2)(a)
8
Ibid s 9(2)(a)
9
Ibid s 10(b)
10
Ibid s 16
11
Ibid s 16(3)
Grounds of Appeal-
1. The decision in the District Court of Brisbane before trial judge Gordon applied
relevant aspects of Tort Law to determine the scope of the duty of care owed by
Gotham Shopping Centre to the Second Appellant.
2. The Trial Judge ruled that there was no duty of care owed by the Respondent to the
Second Appellant.

Submissions-
Reasonable foreseeability -
1. In order to determine the scope of liability under reasonable foreseeability , questions
arise regarding whether the Respondent knew that such events would cause
Psychiatric harm and took reasonable actions to avoid such harm to the Second
Appellant. 12

1.1 The Second Appellant failed to initially inform his supervisor about his
Coulrophobia and the other distress he was facing, an continued to work “as per
usual”. It is unreasonable to suggest that duty of care was breached in these
circumstances as the Respondent was unaware of the Second appellants mental
state or his existing condition at this time. Therefore, no measures could be taken
to prevent psychiatric harm.
1.2 It wasn’t until after the third attack in which the Second Appellant informed his
supervisor about his coulrophobia, an how he felt “quite shaken and anxious”. The
supervisor- an employee of the Respondent took appropriate measures to handle
the current situation and prevent psychiatric harm.
1.3 The Second Appellant’s claim of psychiatric harm is to be considered as a genuine
psychiatric illness. Prior to these events he unknowingly to the Respondent
claimed to be “shaken up and anxious” , but the Second Appellant continued to
work for the month of August without further complaint.

1.4 Tame v NSW, states that the factors of normal fortitude, direct perception, sudden
shock should be considered.13

2. The Respondent has no control over the risk and the vulnerability of the Second
Appellant.
2.1 Crimmins V Stevedoring Industry Finance Committee, States the fundamental
principle that the Respondent does not have a duty to prevent third parties’
criminal actions. 14Due to the un-foreseeability, uncertainty, and unpredictability.15
2.2 “Anzils” Case cannot apply to these circumstances as spite there being previous
threats and events of criminal activity there is not a high risk of foreseeability that
these events would cause for psychiatric harm to be inflicted on the Second
Appellant.16
12
Chapman V Hearse [1961] HCA 46
13
Tame V New South Wales [2002] HCA 35 -211 CLR 317
14
Crimmins V Stevedoring Industry Finance Committee [1999] HCA 59
15
Ibid
16
Modbury Triangle Shopping Centre Pty Ltd V Anzil [2000]
Normal fortitude-
3. The concept of ‘Normal fortitude’ , is a risk of harm is not reasonably foreseeable
unless an ordinary person of ‘Normal fortitude’ would have a form of Psychiatric
Injury.17
3.1 It is reasonable to suggest that seeing the ambulance on site would cause the
Second Appellant to be heightened and unsettled, but not to the extent of
diagnosed Psychiatric injury. 18

Direct perception-
4. Anzil’s case states that there is no longer a requirement to directly perceived the
traumatising incident, it is sufficient however to witness the aftermath.
4.1 The Second Appellant was only informed about the incident by another employee
and as previously stated, only saw the doors of the ambulance close and the
vehicle drive off.
4.2 He did not witness the attack on the First appellant, nor did he witness the
traumatic state she was in.
Sudden shock
5. It would be reasonable to state that The Second appellant did face sudden shock from
the three attacks in which may have caused harm, however no duty of care or
measures surrounding such duty could be acted upon in these circumstances as it was
not to the Respondent’s knowledge, an therefore is deemed ineffective.
5.1. Moreso, he did not face a sudden shock regarding the First appellant, as he did
not witness the events nor the state she was in.
Proximity of relationship-
6. In relation to aftermath cases, a duty of care can only be owed where the parties were
in a “Close tie of love and affection”. 19
6.1 The Second Appellant and Miss Pattinson had ‘recently formed what can be
described as an "Acquaintanceship”, and therefore cannot be deemed as a “ close,
constructive and loving relationship.”20

17
Tame V NSW [2002] HCA 25.
18
ibid
19
Jaensch V Coffey [1984] HCA 52
20
ibid
Arguments -

The case of “Mt Isa Mines V Pusey” was quoted by the opposing council in regard to a
person’s psychiatric state. And that if such person with a normal fortitude threshold was to
see another’s dead body that they would be traumatised. Respectfully I find that this case
authority is irrelevant to the present facts as the second Appellant did not witness a dead
body nor did he witness the first appellants body at all.

In terms of normal fortitude , My colleague also stated the First Appellant was suffering from
the psychological disorder of PTSD in which it would be “ easier to break than someone with
normal threshold” Although this statement holds some relevance, it is important to note that
at the time of these attacks the First Appellant was not diagnosed with PTSD, an therefore it
is unrealistic.

In regards to proximity of relationship – opposing councilw suggest “noting possible

connections” between employees. This seems highly unrealistic and impractical-

What else could our client have done – when they were unaware of his ongoing state.