Bondi Beach Foods Pty Ltd v Chadwick

v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Cowell v The Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] HCA 17 Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; 301 ALR 420 Fink v Fink (1946) 74 CLR 127; [1946] HCA 54 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Oxlade v Gosbridge Pty Ltd [1998] NSWCA 167 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Penrith City Council v Parks [2004] NSWCA 201 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 Quintano v BW Rose Pty Ltd [2009] NSWSC 446 Radin v The Law Society of New South Wales [1997] NSWCA 257 Sam v Atkins [2005] EWCA Civ 1452 Sergeant John Lawrie v Tameeka Pty Ltd [2015] NSWSC 1513 Southern v Adventure Forest Ltd [2016] EWCA Civ 1178 State of New South Wales v Thomlinson (2018) 98 NSWLR 315; [2018] NSWCA 151 Taitoko v R [2020] NSWCCA 43 Venues NSW v Kane [2023] NSWCA 192 Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Woolworths Ltd v Lister [2004] NSWCA 292 Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 Texts Cited: J Goudkamp, "Breach of Duty: A Disappearing Element of the Action in Negligence?" (2017) 75 Cambridge Law Journal 480 T Weir, Introduction to Tort Law (2nd ed Oxford University Press 2006) Category: Principal judgment Parties: Bondi Beach Foods Pty Ltd (Appellant; First Respondent to First Cross-Appeal; Second Respondent to Second Cross-Appeal) Clinton Chadwick (First Respondent to Appeal and Second Cross-Appeal; Cross-Appellant in First Cross-Appeal) Crossguard Group Pty Ltd (Second Respondent to Appeal and First Cross-Appeal; Cross-Appellant in Second Cross-Appeal) Representation: Counsel: P Morris SC (Bondi Beach Foods Pty Ltd) D Lloyd SC and M Kalyk (Clinton Chadwick) N Polin SC (Crossguard Group Pty Ltd)

Solicitors: Meridian Lawyers (Bondi Beach Foods Pty Ltd) Salerno Law (Clinton Chadwick) Hall & Wilcox (Crossguard Group Pty Ltd) File Number(s): 2023/115883 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2023] NSWSC 197 Date of Decision: 9 March 2023 Before: Elkaim AJ File Number(s): 2019/00307732

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Clinton Chadwick was seriously injured when he was struck repeatedly with a stool by another patron at premises operated by Bondi Beach Foods Pty Ltd (Bucket List). Crossguard Group Pty Ltd was engaged by Bucket List to provide security. The entirety of the assault and a great deal of the interaction between Mr Chadwick and his assailant, and the friends of each, was captured on CCTV. Mr Chadwick sued Bucket List and Crossguard in negligence. He advanced his claim in two separate ways. The first was that the assailant and his group were exhibiting signs of intoxication in the hour prior to Mr Chadwick's arrival, such that the defendants were in breach of duty in not turning them out. The second was that if there had been sufficient licensed security guards present in the seconds preceding the altercation, then they would, more likely than not, have intervened to de-escalate the situation, and thus Mr Chadwick would not have been injured. Both routes to liability were upheld at trial, with the primary judge entering judgment for Mr Chadwick against the first and second defendants in the amount of $200,706.40 ($250,883 less 20% for contributory negligence). As between themselves, each defendant was held equally liable. Bucket List appealed against the findings of duty, breach, causation, damages and contributory negligence. Crossguard cross-appealed on the same grounds and sought a lower assessment of statutory contribution. Mr Chadwick cross-appealed on damages. The principal issues on appeal were the findings of fact concerning the conduct of the assailant and his group and the way in which the premises were monitored for signs of intoxication, the nature and content of the duties of care owed by each defendant, whether each duty was breached, whether the plaintiff had established causation, damages, and whether the assessments of contributory negligence at 20% and statutory contribution disclosed appellable error. The Court (per Leeming JA, Gleeson and Payne JJA agreeing) allowed the appeal in part, holding that:

1. As regards the first route to liability, the appeal was allowed. Although the challenge to the reasoning concerning duty was not made out (at [63]-[76]), parts of the challenge to factual findings were upheld. It was not established that the assailant manifested signs of intoxication or violence prior to Mr Chadwick's arrival: at [98]-[124], [130]-[138]. Even if some members of the assailant's group manifested signs which warranted further investigation, it would have been reasonable for security to take steps short of asking that member to leave: at [182]. Even if a member was asked to leave, it did not follow that the assailant would have followed: at [179]. Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28; Oxlade v Gosbridge Pty Ltd [1998] NSWCA 167; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61; Brighten v Traino [2019] NSWCA 168, considered and applied. Consideration of statutory obligations of the licensee of licensed premises and powers to exclude patrons, and their relevance to the common law claim: at [32]-[43].

JUDGMENT GLEESON JA [1] LEEMING JA [2] Uncontroversial matters [13] People and basic chronology [13] The intoxication of Mr Martin [20] The layout of the licensed premises [24] The events between 18:00:40 and 18:08:16 in more detail [28] Bucket List's licence [32] Contemporaneous testimonial evidence [44] The reasoning of the primary judge on liability [51] Duty of care and risk of harm (Grounds 1 and 2) [63] Review of findings of fact generally [77] The risk profile of Bucket List (Grounds 6(f) and (g)) [82] Did the evidence of Messrs Garrow and Kovacevic warrant the finding that the conduct of the Martin group was disruptive or aggressive conduct that required intervention (Ground 6(j)) [98] Mr Kovacevic [99] Mr Garrow [106] Conclusions on the evidence of Messrs Kovacevic and Garrow [116] Mr Garrow's evidence concerning Mr Ruwald, the owner (Ground 6(k)) [125] The CCTV footage before Mr Chadwick's arrival, and the evidence of Ms Axelsson and Mr Izmiritlian [129] Chronology of CCTV Footage [130] Ms Axelsson's evidence [142] The Crossguard witnesses [154] Ground 6(a) [164] Monitoring (Grounds 6(e) and (m)) [167] Objective manifestations of intoxication or anti-social behaviour (Grounds 6(h), (i) and (l)) [171] Causation (Ground 7) [184] The second way in which Mr Chadwick's case was advanced (Grounds 6(b), (c) and (d)) [187] The arrival of Mr Chadwick and the events which followed [189] The difference between RSA marshals and licensed security guards [193] Ground 6(b) [206] Ground 6(c) [208] Ground 6(d) [214] Further issues arising on Crossguard's cross-appeal [219] Separate duty of care owed by Crossguard (Grounds 1 and 2) [233] Risk of harm (Ground 3) [240] Objections to evidence of Mr Kovacevic (Ground 5) [241] Causation (Ground 6) [248] Contributory negligence (Ground 8) [250] Quantum (Appeal ground 9, Mr Chadwick's cross-appeal) [260] Statutory contribution (Ground 8 of Crossguard's cross-appeal) [271] Costs (Ground 9 of Crossguard's cross-appeal) [279] Conclusion and orders [284] PAYNE JA [288]

1. GLEESON JA: I agree with Leeming JA.
2. LEEMING JA: All three parties to proceedings heard over 13 days in the Common Law Division of this Court have appealed or cross-appealed against aspects of a judgment in favour of the plaintiff, Mr Clinton Chadwick, who was seriously injured when he was struck repeatedly with a stool by another patron at premises operated by the first defendant, Bondi Beach Foods Pty Ltd, which traded as "The Bucket List Bondi" near Bondi Beach. The second defendant, Crossguard Group Pty Ltd, provided security. The entirety of the assault, and a great deal but not all of the interaction between Mr Chadwick and his assailant Mr Stephen Martin, and the friends of each, was captured on CCTV. Some was also captured on video recordings made by other patrons after the altercation commenced.
3. Mr Chadwick sued Bucket List and Crossguard in negligence. Mr Martin pleaded guilty to assault but was not a party to the proceedings. Instead, he was called as a witness in the plaintiff's case. The hearing took place between 13 February and 1 March 2023, with his Honour delivering reasons for judgment of 209 paragraphs promptly thereafter on 9 March 2023: Chadwick v Bondi Beach Food [sic] Pty Ltd [2023] NSWSC 197. The Court found each defendant liable, apportioning the cross-claims against one another for statutory contribution equally, and making a reduction for contributory negligence of 20%. His Honour assessed non-economic loss at $46,000, past and future out-of-pocket expenses at $7,000, past economic loss at $154,360, past lost superannuation benefits at $18,523 and future economic loss at $25,000. Those amounts total $250,883, resulting in a judgment in Mr Chadwick's favour against each defendant in the amount of $200,706.40, with each defendant equally liable to one another. By a separate judgment delivered on 20 March 2023, his Honour confirmed the costs orders in favour of the plaintiff, notwithstanding the default position where a plaintiff recovers less than $500,000 provided by r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW). His Honour also stayed the execution of that judgment pending appeal: [2023] NSWSC 246.
4. The plaintiff was held to be entitled to succeed in two separate ways, both of which were challenged by Bucket List and Crossguard and defended by Mr Chadwick. The first was that Mr Martin and his group would, but for the breaches of duty by both Bucket List and Crossguard, have been removed from the premises well in advance of Mr Chadwick's arrival. Speaking generally, that entailed a finding that Mr Martin and his group were exhibiting such signs of intoxication coupled with anti-social behaviour in the hour prior to Mr Chadwick's arrival that the defendants were in breach of duty in not turning them out. Secondly and alternatively, if there had been sufficient licensed security guards present in the seconds preceding the altercation, then they should have intervened to de-escalate the situation, and more likely than not they would have done so, with the result that Mr Chadwick would not have been injured.

People and basic chronology

1. Mr Martin and around five friends were drinking at a "VIP" table in the outdoor area of the licensed premises. They arrived at 17:03 on the afternoon of Friday 22 December 2017. They moved tables at 17:47 and, for the first time, the CCTV footage thereafter shows their table.
2. Mr Chadwick and his two friends Messrs Michael Garrow and Eugene Bradshaw arrived at 18:00:40. They walked past Mr Martin's table at 18:01:30, and there was an interaction between the two groups.
3. After buying three beers at the bar, Messrs Chadwick, Garrow and Bradshaw walked around the premises, apparently looking for a seat. They returned to the proximity of Mr Martin's table at around 18:06:34.
4. Mr Chadwick was struck at 18:08:16. What occurred in the previous 90 seconds is important both as to breach and causation on the second way in which Mr Chadwick's case was advanced, and will be addressed in detail below.
5. At all material times, there were four RSA marshals from Crossguard on duty: Mr Gary Izmiritlian, Ms McKenzie Lewino, Mr Sean Bruggermann and Mr Ben Nichols. The primary judge found that none was a licensed security guard. In proceedings in which a multitude of factual findings were challenged, no challenge was made to that finding.
6. Evidence was given in Mr Chadwick's case by Mr Chadwick, Mr Martin, Mr Garrow, but not Mr Bradshaw. Nor was evidence given by another man, Mr Tom Kerr, a friend of Mr Chadwick who happened to be present at the venue and who involved himself in the altercation. Mr Chadwick did call another witness, Mr Elvis Kovacevic, who had been attempting to celebrate his 45th birthday at a nearby table, and who saw Mr Martin's group arrive, was well placed to observe their behaviour over the following hour, and saw the altercation.
7. For Bucket List, evidence was given by the licensee Mr David Champ (who was not present when the incident occurred) and Ms Ida Axelsson, who was duty manager at the time, and the owner Mr Andrew Ruwald, who was also present. Bucket List also called Ms Lewino, one of the Crossguard employees on duty. For Crossguard, evidence was given by Mr Izmiritlian, who was the senior employee on the site, and part of a statement by its owner Mr Tux Akindoyeni was tendered.

The intoxication of Mr Martin

1. Mr Martin gave evidence that he had been drinking since 1.30pm that afternoon, starting with beers at a friend's house, then at a German pub near Bondi Beach, and then moving to the Bucket List. There was no challenge to the primary judge's finding that Mr Martin and his group were turned out of the German pub. Despite there being a dispute at trial as to the amount of alcohol Mr Martin had consumed and the rate at which his metabolism processed it, there was no dispute in this Court that he had drunk substantial amounts of liquor.
2. On Mr Martin's own account, he had had two or three beers at a friend's house, five or six steins of beer at the German pub together with three or four shots of Jägermeister, and two to four further beers at Bucket List. The bar CCTV shows him purchasing a bucket of four bottles of beer at 17:06. The man who entered the premises with him also bought his own bucket of four beers (shown at 17:07), and two other men who entered the premises at around the same time and joined Mr Martin and his friend purchased their own pints. Mr Martin said: On a scale of one to ten with one being sober and ten being as drunk as I have ever been in my life, at the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really.
3. He said he weighed about 100kg at the time. He was also tall. The CCTV footage shows the top of Mr Chadwick's head coming to around the bottom of Mr Martin's chin when the two faced each other off. Even allowing for the distortion from the elevated camera angle, it is clear that Mr Martin was much taller than Mr Chadwick.
4. It was common ground between the experts that an aspect of behaviour that is commonly affected by excess alcohol is gait. Although Mr Martin's gait is captured on the CCTV as he entered, and as he walked to the bar, and to and from the toilets, and then half an hour later as he left the premises and returned, neither expert detected that his gait indicated intoxication. Dr Dauncey referred to a "lack of obvious impairment" in Mr Martin's gait (and questioned the reliability of his account of how much alcohol he had consumed) while Mr Chadwick's expert Dr Robertson agreed that at least where the CCTV footage was of reasonable quality, Mr Martin's "gait was unremarkable".

The layout of the licensed premises

1. The premises occupied by Bucket List included outdoor seating area near Bondi Beach. No floorplan seems to have been in evidence. However, the outdoor area adjoins the street entrance, separated by a fence with staff at the entrance, and it is clear enough that a security guard at the entrance could walk to the so-called "VIP" table where the altercation itself took place in a matter of seconds. Although an umbrella partially obscures the CCTV footage of the entrance, the footage from camera 7 permits one to see the entirety of a person's movement from the entry to Mr Martin's table.
2. The bar area is inside, and activity there was recorded by at least two other cameras. Patrons and staff in the outside area could go to the bar area and exit into a different part of the outdoor area, and complete a circular route returning to their starting point. That is what Messrs Chadwick, Garrow and Bradshaw did on the afternoon of Friday 22 December 2017, apparently in search of a table.
3. The table at which Mr Martin and his group were seated was small. There was a row of seats with cushions on them along the boundary. For other patrons, there were small, metal stools, one of which was used by Mr Martin to strike Mr Chadwick. The furniture and the configuration are best seen in the CCTV footage after the incident, when the police had arrived and many of the patrons had left.
4. The camera showing the outdoor area has Mr Martin's table in the far right of screen. It is difficult to see them clearly, partly because of the camera angle (save for when someone stands), and partly because the group is in the shade and much of the rest of the area is in bright sunlight. For the most part, it was not possible to see them before they moved tables closer to the entrance at 17:47. The camera did not capture Mr Kovacevic's tables, which were further away from the entrance, although Mr Kovacevic is seen from time to time interacting with Mr Martin's group.

The events between 18:00:40 and 18:08:16 in more detail

1. Messrs Chadwick, Garrow and Bradshaw arrived at 18:00:40. Mr Chadwick was carrying a puppy named "Donut", and Mr Garrow was carrying another puppy named "Pebbles". Between 18:00:52 and 18:01:27 the three men interacted with patrons sitting at a table closer to the entrance than Mr Martin's table, with one female patron standing up to pat Donut. This would have been visible to Mr Martin, and there was evidence that he shouted to them. Messrs Chadwick, Garrow and Bradshaw then moved further into the venue, towards the bar, necessarily passing Mr Martin's table. At 18:01:30 Mr Martin stood up, followed by an interaction of around 20 seconds, until 18:01:49, when the men proceed out of camera towards the bar. I shall return below to the evidence as to what was said.
2. Mr Garrow then bought a beer for himself and each of Mr Chadwick and Mr Bradshaw. The three then walked around the venue looking for seating. Other patrons continued to pat Donut and Pebbles. They walked once again past Mr Martin's table at around 18:06:50, and began to interact with him from around that time. The sequence of events will be described in greater detail below, but involved a verbal exchange between Messrs Martin and Chadwick, with the former repeatedly pointing outside and conveying that they should engage in physical blows outside, and the arrival from another table of Mr Chadwick's friend Mr Kerr, as well as two Crossguard marshals.
3. By 18:07:54 two Crossguard marshals were standing next to Messrs Martin, Chadwick and Kerr, watching the altercation. At 18:08:00 Mr Chadwick pushed Mr Martin. At 18:08:07 Mr Martin hurled a jug towards Mr Chadwick, which smashed on the ground. At 18:08:10 Mr Kerr pushed Mr Martin, with greater apparent force than Mr Chadwick's push, judging by its effect upon Mr Martin. Mr Izmiritlian moved towards Mr Kerr. Then at 18:08:15 Mr Chadwick, who had circled behind the Crossguard employee, moved rapidly towards Mr Martin, apparently attempting to punch his face. His fist did not connect. At 18:08:16, Mr Martin struck Mr Chadwick with the stool, three or perhaps four times, rapidly. Mr Chadwick, already off-balance because of his attempted blow, fell to the ground. Mr Martin ran from the premises.
4. Mr Chadwick was taken to St Vincent's Emergency Department. There was no challenge on appeal to the findings by the primary judge that he had sustained a mild traumatic brain injury, and suffered from a resolving post traumatic stress disorder. However, there is a very large challenge directed to whether those injuries resulted in economic loss.

Bucket List's licence

1. Bucket List was licensed to serve alcohol. It is an offence to do so without a licence, and it is an offence to do so contrary to the conditions of a licence: Liquor Act 2007 (NSW), ss 7 and 9. The licence was not in evidence. Even so, the inescapable inference is that it was an "On-premises licence" granted pursuant to Division 4 of Part 3 of the Liquor Act 2007 (NSW). In part, that follows from the evidence of Mr Champ, the licensee, as follows: Q. When you say it's pretty casual, the big area outside, there were people at the tables. Was that where meals were served, or was there a separate section that was a restaurant? A. No, the whole venue was a restaurant. The inside and outside was - meals were served throughout. Q. Was it for that reason that there was a requirement that people be seated? A. That was - yeah, the - it was part of the restaurant's licence, and the police were pretty clear. And it was something that was well-versed with all of us, that most people - sorry. The majority of people outside all had to be seated outside. There was no standing and drinking. … Q. Was it sort of similar to a hotel, sometimes like a beer garden, that people eat meals but it's still a hotel? A. Sure. Look, just on that note, if I can come back to your question. In terms of the - we used to get referred a lot by the local licensing sergeant at the time, who had been at Bondi or Waverley for quite a period of time. And it was a bone of contention. So he regularly asked for our figures, which were our food figures, in comparison to our beverage sales, just to showcase the amount of meals that we were serving, which was more than adequate for the size of the venue. Obviously we had a lot of the tourist trade, especially being down at Bondi, so a lot of people came to obviously have a bite to eat on the beach.
2. Mr Champ confirmed that it was "actually a breach of your licence if someone was standing and drinking".
3. At trial it was common ground, and in accordance with the security expert retained on behalf of Bucket List, that the premises "held a restaurant liquor licence" and was "not a vertical drinking environment". Indeed, although the licence was not itself in evidence, its identification number was: LIQO600490093 (see paragraph 4.6 of Dr Zalewski's report). The significance of the "O" (being the fourth character in the licence number) is that it was an "On-premises licence" as opposed to a hotelier's licence (which commence with LIQH) or a licensed club (which commence with LIQC) or a packaged liquor licence (which commence with LIQP).

Contemporaneous testimonial evidence

1. There were two roughly contemporaneous accounts of the incident in evidence. The first, in the handwriting of Mr Izmiritlian, is in a diary book, with entries apparently made by Crossguard employees, occupying the entirety of a page for 22 December 2017. It identifies the manager as "Andrea" (a reference to Mr Finchera) and that security signed on at 16:30. Referring to the same time, it also states "head count 307 on entry". There follows an account at 17:30 (the fact that the incident is described as occurring at 5.30pm suggests it was completed some hours after the event): approached 2 males situated at outdoor area, as I was alerted to a dispute between 2 of them. The location was the 2nd-3rd VIP tables from the main entrance. A few words were exchanged when one male pushed another male. The male (6"2) tattoos on arm, denim jeans, blue cap, 25-35; blue long sleeve open shirt retaliated and threw a jug filled with drinks and ice and another male (5"0), 28-40 bald head, canvas brown shorts, black [illegible] top. Then he picked up a stool and hit him over the head, then cursing at me, lost his stance with momentum and fell over and ran away. The police later came and the scene cordoned off. The venue was opened again at 20.30. At 10.30pm, 3 males were refused entry because they were intoxicated.
2. There is no reason to doubt that when Mr Izmiritlian noted that he "approached 2 males situated at outdoor area, as I was alerted to a dispute between 2 of them", that was a reference to the approach which commenced at 18:07:46 when he had been standing at the entrance, following which he arrived at the table at 18:07:54. The reference to his being alerted to a dispute was no later than when another Crossguard employee walked past the table at 18:07:34 and went towards the entrance.
3. Because it bears on the second way in which Mr Chadwick advanced his claims, it is convenient to pause and provide a little more precision, by reference to the CCTV footage, as to how Crossguard employees reacted in the minute preceding Mr Martin's attack upon Mr Chadwick. At 18:07:33 a younger Crossguard employee wearing sunglasses and a cap appears from the bottom of what is shown in camera 7, and walks quickly (noticeably more quickly than other patrons) down the stairs. He heads directly towards where Mr Martin and Mr Kerr are confronting each other, and evidently communicates something to Mr Izmiritlian at the entrance. He walks a short distance towards the entrance where he meets Mr Izmiritlian (who has left the entrance and walked towards the table) at 18:07:48. Both Crossguard employees then stand by Mr Martin's table as the altercation between Messrs Martin, Chadwick and Kerr unfolds. Both are there when Mr Chadwick shoves Mr Martin, when Mr Martin throws the jug, when Mr Kerr pushes Mr Martin, when Mr Chadwick attempts to strike Mr Martin, and when Mr Martin strikes Mr Chadwick with a stool.

The reasoning of the primary judge on liability

1. The primary judge regarded the plaintiff not to be "an overtly dishonest witness" but nonetheless was a man "somewhat deluded by his own image" and because of his lack of reliability, a "good deal of caution was needed before the plaintiff's evidence was accepted": at [15] and [17]. Mr Chadwick's business activities as a social media "influencer" and his optimism about the success of that business are addressed below when dealing with quantum.
2. His Honour identified at [44] that "the real question in this case is whether the defendants were on notice that Mr Martin was a danger to other patrons". That is correct, if understood as applying (a) to the hour before the altercation, on the first way in which Mr Chadwick's case was advanced, and (b) to the minute or so before the altercation, on the second way in which Mr Chadwick's case was advanced. His Honour addressed both aspects jointly, concluding that Mr Martin and his group should have come to the attention of the defendants, who should have acted to control, restrain or evict the group: at [45]. His Honour observed that there was no doubt that they were noticed by the defendants, including Mr Ruwald and Mr Izmiritlian. However, it is one thing for a group of men to have been noticed, and another to conclude that Mr Martin would by 6pm have been asked to leave, or had voluntarily left, the premises.
3. The primary judge accepted Mr Garrow's evidence that the owner, Mr Ruwald, had said to him "yeah, it's no good. I did ask security to keep an eye on those guys as they had already said a few things to other people", noting that it was evidence only against Bucket List. Interpolating there, one of Crossguard's complaints is that his Honour nowhere explained how that evidence was not taken into account in the findings made against it. His Honour noted that the cross-examination did not impact upon, let alone challenge, the very strong opinions expressed by Mr Kovacevic in his statement, including that they had been very loud, swearing and carrying on, chairs and buckets were falling over and at times they were being rude and obnoxious. However, as will be seen below, the cross-examiner did elicit from Mr Kovacevic concessions that Mr Martin was polite and courteous when he interacted with Mr Kovacevic.
4. Relying upon the statement of principle in Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28 at [50] about conduct which was "disruptive or aggressive", his Honour identified at [70]-[72] passages in the evidence of Messrs Garrow and Kovacevic as "constituting that conduct". This is an important passage in his Honour's reasoning, which is reproduced in detail below. To anticipate what follows, there are three difficulties with the reasons. The first is that the passages relied upon by his Honour do not greatly assist in identifying conduct by Mr Martin which might warrant his removal. Much of the passage concerns the group of men with Mr Martin as a whole, and to the extent that Mr Martin is mentioned, it is merely that he (as well as the other men) was yelling. The second is that there was other evidence given by Mr Garrow and Mr Kovacevic which would come closer to amounting to anti-social conduct by Mr Martin, some of which was recited by his Honour elsewhere in the reasons, but which was not the subject of any express finding. The third is that insofar as the evidence was that of Mr Garrow (to the effect that Mr Martin was yelling), that occurred no earlier than 18:01. Seven minutes later, Mr Martin was striking Mr Chadwick. No attention was given to how the conduct relied on was conduct which could sustain the first way in which Mr Chadwick advanced his case. If that evidence was to be used as a basis for reasoning that Mr Martin and his group should have been excluded prior to the altercation, then either it was necessary to find that Bucket List or Crossguard should have been alerted to the conduct, and responded by turning them out, in the next three or four minutes, or else it was necessary to find that the same conduct had preceded Mr Garrow's arrival. The primary judge made no such findings.

Duty of care and risk of harm (Grounds 1 and 2)

1. Bucket List contended that the primary judge erred in "failing to identify accurately the content of the duty of care owed by [Bucket List] to [Mr Chadwick] having regard to the particular circumstances of the case" and in "failing properly to identify the relevant risk of harm of which the appellant knew or ought to have known". These two grounds are conveniently addressed together, as they were in Bucket List's submissions. Indeed, Bucket List's submissions dealt with the first five of its grounds of appeal together, and compendiously.
2. As part of its submissions in support of these grounds, Bucket List cavilled with what it said was a "change in the characterisation of the risk of harm" between the pleadings and Mr Chadwick's closing submissions at trial. In the former, it was alleged that "The risk of harm if reasonable precautions were not taken was the risk that a patron who was engaging in indecent, violent or quarrelsome conduct on the premises may assault and injure another person". In closing address, Mr Chadwick defined the risk of harm as "that a patron exhibiting signs of intoxication and/or engaging in anti-social behaviour may assault another patron".
3. The identification of "risk of harm" is important and indeed necessary in order to apply ss 5B and 5C of the Civil Liability Act 2002 (NSW). Many authorities stressing this were collected in Venues NSW v Kane [2023] NSWCA 192 at [54] and need not be repeated here. Mr Chadwick's pleading, appropriately, identified the risk unambiguously. Contrary to Bucket List's submission, I fail to see how there was any material variation in what was pleaded and what was advanced in closing address. As much is confirmed by what occurred at trial, which may be summarised as follows: 1. Bucket List did not in its pleadings admit the paragraph containing Mr Chadwick's formulation of the risk of harm, nor did it advance any alternative formulation of the risk of harm. 2. At trial, Bucket List reiterated the pleaded risk of harm without criticism. 3. In his written submissions supplied in advance of the hearing in this Court, Mr Chadwick said that there was no dispute at trial as to the pleaded risk of harm, and that the contention that there was some change in his case had not been advanced at trial. Nothing was said in response by Bucket List's written submissions in reply or oral submissions.

Review of findings of fact generally

1. It is not difficult to believe that the witnesses, especially Messrs Garrow and Kovacevic, had an actual recollection of the altercation and fight between Messrs Chadwick, Martin and Kerr. But even that recollection was faulty - for example, Mr Garrow readily conceded when confronted with the CCTV footage that he did not recollect that Mr Chadwick had pushed Mr Martin, and attempted to punch him, and had been wrong to describe Mr Martin's attack as "unprovoked". The recollections of witnesses of what had been happening at Mr Martin's table in the hour preceding the altercation and fight are unlikely to have been so vivid, if they existed at all, more than five years after the event.
2. Obviously the primary judge was in a different position from this Court, which has not seen the witnesses give evidence. However, the findings made by the trial judge are quite limited. His Honour was cautious in accepting Mr Chadwick's evidence, and he also fell well short of expressly making findings in accordance with all aspects of the evidence of Mr Kovacevic and Mr Garrow.
3. His Honour was also, appropriately, alert to the limitations of the CCTV footage. In this respect much depends on why it is being used, as was explained in Chandler v Transport for New South Wales [2023] NSWCA 6; 103 MVR 265 at [20]-[21] including by reference to what was emphasised in Taitoko v R [2020] NSWCCA 43 at [81]. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed. This bears upon one large area of factual challenge in this appeal, namely whether or not the CCTV footage shows signs of intoxication and anti-social behaviour sufficient to have warranted the exclusion of Mr Martin and his group prior to Mr Chadwick's arrival.
4. It warrants reiterating that the CCTV footage is very useful in some respects, and potentially deceptive in others. The CCTV footage enables precision to be given to the location and timing of events that are utterly beyond the capacity of most witnesses (for example, many witnesses have a very poor idea of how long 20 seconds is). However the CCTV footage has many limitations. It has no sound. Only limited camera angles are shown. It is difficult if not impossible to make out the facial expressions on Mr Martin and his group. It is exceptionally difficult to determine whether some of the behaviour of men in Mr Martin's group is merely exuberant or is palpably anti-social, or somewhere in-between.

The risk profile of Bucket List (Grounds 6(f) and (g))

1. These two sub-grounds challenge the following findings: 1. That the record of incidents indicated that "unruly conduct, often violence, were common occurrences at the venue", a statement made by the primary judge at [106] by reference to the evidence of the plaintiff's expert Mr Fullerton. 2. The finding that "The incident occurred after 6pm on the final Friday before Christmas. The assumption that 5pm onwards was not a high-risk period is untenable", statements made in the course of criticising the contrary view expressed by Bucket List's expert at [109(d)]. 3. That "the mere engagement of the second defendant, is an acknowledgement of the risk and the need to take precautions, as the second defendant was specifically engaged to give effect to the precautions", a statement made by his Honour at [25].
2. These two sub-grounds were those addressed most elaborately in, and at the forefront of, Bucket List's "Additional Submission with Respect to Contested Findings" document, supplied in an attempt to comply with UCPR r 51.36. The main attack was directed to the first factual finding. Bucket List challenged what appeared from the diary entries. Its submissions were directed to the diary entries in exhibit C, to which it said that the primary judge did not refer. That is strictly correct, but only in a highly technical sense, because some of the same material was also contained in exhibit D, to which his Honour did refer, including the diary entries which recorded "1 x male patron became aggressive when ATL Physical altercation with 4x security" at 20:10 on 22 January 2017, and on 2 September 2017 two incidents of "1 x Male ATL Intox & Aggressive" (the time of these is not stated). "ATL" is an abbreviation for "asked to leave", which is an important element of the licensee's obligation to avoid permitting intoxication on the premises. One way in which the licensee can avoid committing the offence created by s 73(1) of the Liquor Act of permitting intoxication on premises is to fall within s 73(4): If an intoxicated person is on licensed premises other than a vessel, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves that - (a) the licensee, and the licensee's employees or agents - (i) refused to serve the person liquor after becoming aware the person was intoxicated, and (ii) asked the person to leave the premises, and (iii) if the person did not leave the premises immediately after being asked to leave or refused to leave - contacted, or attempted to contact, a police officer for help in removing the person from the premises …

Did the evidence of Messrs Garrow and Kovacevic warrant the finding that the conduct of the Martin group was disruptive or aggressive conduct that required intervention (Ground 6(j))

1. This sub-ground of appeal was a challenge to the finding at [72] that the evidence of Mr Garrow and Mr Kovacevic about the conduct of the Martin Group was evidence that amounted to "disruptive or aggressive conduct" requiring intervention to protect patrons. As will be seen, the context in which that finding was made matters. I have concluded that, fairly read, it was not a reference to all of the evidence of Messrs Garrow and Kovacevic, but only to particular aspects which had not been challenged in cross-examination.

Mr Kovacevic

1. Some five years after his police statement, Mr Kovacevic made an evidentiary statement on 19 December 2022 which was tendered at the trial. In that statement, he elaborated why he had formed the view that the men at the table were "very intoxicated". He said: I recall forming that belief because of the way they were speaking and acting, including being very loud, swearing and carrying on, chairs and buckets were falling over, and they were at times being rude and obnoxious to people around them.
2. He also said that he could see a female member of the security team looking at the group of men, whom he identified on the CCTV footage. He said: I caught her eye, pointed to the group, and shrugged or gestured in a way that I intended to convey a question as to why they were there. She appeared to be looking at the group. I believed she looked nervous as she did so. This was based on her facial expression.
3. Mr Kovacevic added, by reference to the arrival of Mr Chadwick and his friends, the following: I recalled that at this stage there were words exchanged between the men who walked in and the males at the table that were not nice. While I can not recall the exact words that were said, they were confrontational or mocking of the man who had walked in.
4. In cross-examination, Mr Kovacevic confirmed that his table could not be seen on any of the CCTV footage, and that when Mr Martin's group moved tables at 17:47, they moved further away from the two or three tables occupied by him and his friends who were celebrating his birthday. He confirmed that when Mr Martin first spoke with him, he politely asked "Do you mind if we sit here until our other guests arrive", and a little more significantly, there was this exchange: Q. It's true too, isn't it, that he was also polite when your other guests arrived by coming across to you and saying, "I guess you'd like us to move now." A. That's correct. Q. He did move. A. Yes. Q. He was perfectly polite and perfectly cooperative. A. Yes.
5. That conversation, which can be placed with accuracy at 17:47, is the opposite of a manifestation of intoxication or anti-social conduct.
6. Mr Kovacevic also confirmed that at 17:46:10, he was asked to take some photographs on a mobile phone owned by one member of Mr Martin's group, and he was comfortable enough to help them do so.

Mr Garrow

1. Mr Garrow gave evidence in the plaintiff's case. He had known the plaintiff since they were 15 or 16 years old and had helped him set up the "Rig Fit" shop in Bondi. He had attended the premises on 22 December 2017 with a third friend, Eugene, whom he did not really know. He said that when the three passed Mr Martin's table, Mr Martin stood up and said to Eugene "sweet tats, sweet tats". He gave evidence that when he passed Mr Martin's table that he noticed that he looked "pretty wired" and "I think he might have been on something", relying upon his experience with being attached to the American Drug Enforcement Agency. He said "I immediately noticed that Martin was fidgety, he had rotten teeth, and had bad hygiene, which all point to him having an illegal substance in him". He also said that "he appeared to be noticeably intoxicated because he was spilling his drinks and slurring his words". He confirmed in his evidence in chief that those observations were made when he and Mr Chadwick were passing Mr Martin and his group for a second time (which is to say, between 18:06:34 and 18:08, rather than when they first walked past them at 18:01 or 18:02). He also said: "the security guard did not do a thing during the assault. I noticed that he was at the scene of the argument between Clinton and Martin almost immediately as it began, and that he was standing right next to where it happened and only about a metre away".
2. In cross-examination, Mr Garrow accepted that he was unaware that Mr Chadwick had pushed Mr Martin, and also unaware that Mr Chadwick had attempted to punch him, and that if he had been aware of those matters, he would not have described the attack as "unprovoked".
3. Mr Garrow said that when the three first entered the premises, and had stopped by another table while a woman was patting Pebbles, he could see that Mr Martin's table had alcohol on it, and "you can hear him yelling when we're at the start". He said that Mr Martin "was trying to get our attention from there".
4. In answer to a question from counsel for Bucket List that, after the altercation, some of the patrons might have said "It just blew up out of the blue. It was so quick", or something like that, he said "Most were just saying that the group was rowdy beforehand".
5. Mr Garrow gave this further evidence in cross-examination: Q. The observation that you made that he appeared to be intoxicated was an observation you made when you'd come back close to the table, was it, on this second round? A. And as we walked in, when he was trying to get the attention. He slurred the words, "Hey mate, hey mate", like he was trying to say, "Sweet tatts". He was slurring the words "Sweet tatts". Q. You say you heard that? A. From that distance, yes. Q. He was still sitting then, wasn't he? A. I believe so. Q. So you heard him call out from a sitting position, "Sweet tatts, sweet tatts", and that gave you the impression that he was intoxicated, from hearing it? A. How jittery he was. He was twitching his knee. Q. When did you see that? A. As we walked in. And moved past. Q. And? A. And as we walked past.

Conclusions on the evidence of Messrs Kovacevic and Garrow

1. His Honour was impressed with Mr Kovacevic, and fairly summarised his evidence in cross-examination and its limitations at [64]-[66]. The submissions at trial were mirrored by those made in this Court, as to the generality of Mr Kovacevic's observations, which did not descend to whether Mr Martin personally as opposed to those sitting with him were well-behaved or intoxicated or anti-social. His Honour addressed that submission and resolved it as follows at [68]-[72], in terms which are picked up by the challenge in ground 6(j): 68. It was submitted in respect of Mr Kovacevic, and to some extent Mr Garrow, that the plaintiff could not draw inferences from their evidence in the absence of specific questions to them. The submission was derived from this passage in the judgment of Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418: "In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of Mr Ferrarese. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298. There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply where a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions." 69. It was primarily submitted that Mr Kovacevic and Mr Garrow did not specifically identify Mr Martin as the source of any disruption and that, based on Ferrcom, no inference could be drawn to this effect. 70. However, in his statement, at [14], Mr Garrow said: "I noticed that Martin was being very loud with all his mates, who were also being rowdy and yelling at other patrons. We could hear them yelling when we walked into premises, when we were inside, and from the top of the stairs." 71. Mr Kovacevic, in his statement to police, said at [7] and [8]: "This male was Caucasian, about 30 years old, about 180 cm tall, lean solid build, wearing a white baseball cap, blue track pants and a white t-shirt, he had tattoos on his neck region, he had only one arm completely tattooed including his hand. He was wearing a silver or gold chain around his neck. This male that I describe is the male that later use[d] the barstool to assault another male. Over the following night I continued with my birthday and enjoying my gues[t]s. I took notice of the group seated next to me as they were quickly becoming heavily intoxicated. They had a constant flow of buckets of beers at their table. The other males that were with the [male] with the white baseball cap, were very intoxicated." 72. The evidence of Mr Garrow and Mr Kovacevic about the conduct of the Martin group is the evidence that amounts to the "disruptive or aggressive conduct" referred to in Wagstaff.

Mr Garrow's evidence concerning Mr Ruwald, the owner (Ground 6(k))

1. This sub-ground stated that "Mr Garrow's evidence, that Mr Ruwald expressed concerns about a failure to deal with Mr Martin before the fight, intimated acknowledgment of aggressive behaviour sufficient to justify immediate removal from the premises". The primary judge stated at [98(g)] that "The movements of Mr Ruwald give added credence to the evidence about him given by Mr Garrow".
2. The evidence of Mr Garrow concerning the owner, and the use made of it by the primary judge, is at [59]-[62]: I also accept Mr Garrow in his description of the "elderly" male person who identified himself as the owner and expressed concerns about the failure to not deal with Mr Martin before the fight. Mr Garrow described this person as wearing a collared shirt, shorts and white shoes. Although he doesn't seem to have a collared shirt, the person identified as Mr Ruwald in the CCTV footage is wearing shorts and has white shoes. In addition, Mr Garrow's evidence about what the owner said was consistent with my conclusions about the level of monitoring that was actually occurring at the venue. I think it worth quoting part of the owner's conversation with Mr Garrow: "The owner said words to the effect of 'yeah, it's no good. I did ask security to keep an eye on those guys as they had already said a few things to other people.'" Mr Garrow's evidence about the owner was only relied upon against the first defendant. I therefore do not take it into account against the second defendant. It is, however, consistent with my findings about the staff's state of knowledge, whether employed by the first or the second defendant, as to the behaviour of the Martin group.
3. The primary judge rejected Mr Ruwald's denial of any such conversation: at [87]. His Honour relied upon the movement of people shown on the CCTV. Bucket List made no submissions contrary to what is recorded above as Mr Ruwald's movement at 17:29:50. No basis has been established to interfere with the finding that this occurred.
4. Contrary to the way in which ground 6(k) is formulated, his Honour nowhere relied upon Mr Ruwald's statement as recalled by Mr Garrow to conclude that Mr Martin should have been immediately removed. It is one thing to ask security to keep an eye on a table, and another thing entirely to ask the patrons at that table to leave in accordance with s 77. Thus, ground 6(k) is not made out because the statement attributed to Mr Ruwald was not used in the manner contemplated by this ground.

The CCTV footage before Mr Chadwick's arrival, and the evidence of Ms Axelsson and Mr Izmiritlian

1. The remaining sub-grounds of ground 6 which bear on the first way in which Mr Chadwick's case was advanced (paragraphs (a), (e), (h), (i), (l) and (m)) are affected by the cross-examination of Ms Axelsson and Mr Izmiritlian, both of whom were cross-examined by reference to the CCTV footage. It is convenient to summarise that footage, and the evidence of those witnesses, before dealing with these grounds.

Chronology of CCTV Footage

1. Camera 7 shows some six men who eventually form part of the "Martin group" entering the premises between 17:03:36 to 17:06:05. Mr Martin and another man enter at 17:04:26, preceded by the "stumbling man" (who wears a black shirt) and followed at 17:06:05 by the "dancing man". At 17:47:06, the group shift tables so that they are at the far right of the image captured by camera 7. For most of the hour before Mr Chadwick's arrival, Mr Martin is out of camera, save for when Mr Martin goes to the bar, or the toilet, or leaves and re-enters the venue.
2. Mr Chadwick's submissions maintained that Mr Martin "overstep[ped] awkwardly" as he entered. This is not obvious to me. I note the experts' common position that Mr Martin's gait did not disclose any signs of intoxication. Mr Martin purchased a bucket of four beers from the bar at 17:06, and takes a seat outside at 17:07. There is nothing remarkable about what appears on either camera filming the bar area.
3. There is a camera filming the passage into the toilets. At 17:13:47, Mr Martin stands and walks towards the toilets, and at 17:15:06, he exits. Mr Chadwick's submissions contend that he appears to be stumbling and crosses his feet while walking, and that as Mr Martin turns around, it appears as though he does not remember which way to go. This is far from clear on the CCTV footage. I can see conduct which is consistent with a momentary disorientation, but I cannot see any stumbling or awkwardness in his step.
4. At 17:15:42, Mr Martin returns to his seated position with the group. It is said that at 17:24:57, Mr Martin can be seen dancing in his seat. More precisely, the camera shows the right hand side of his torso as he appears to lift himself somewhat from his seat and move back and forth, at one stage rolling his hands. It is difficult to say whether he fully stands up.
5. At 17:33:35, Mr Martin temporarily leaves the premises returning at 17:38:46. Mr Chadwick submitted that "as he returns, he appears somewhat unsteady on his feet and then places his arm around his friend and pats him on the stomach a few times". It is true that Mr Martin places his arm around his friend as the pair return to their seat, and is more uninhibited than many Australian men would be in a public place. It is also true that Mr Martin's gait is arguably somewhat "heavy", in that he appears to shift his weight from one leg to the other less smoothly than a completely sober man would do while walking, and I suspect that this was the intention of the description "somewhat unsteady on his feet". However, at least to untrained eyes, it does not appear that he is in danger of losing his footing, or mis-stepping, or bumping into patrons. More importantly, the expert evidence was that his gait did not exhibit signs of intoxication.

Ms Axelsson's evidence

1. Ms Axelsson, the duty manager, gave evidence which the primary judge regarded as important, and which bears upon a number of the individual challenges to findings of fact. I shall deal with all of her evidence, and the response of the primary judge to it, and then turn to the individual challenges to his Honour's findings.
2. The primary judge summarised the effect of Ms Axelsson's cross-examination at [76]-[81] as follows: Ms Axelsson was taken to various guidelines for assessing intoxicated patrons. Ms Axelsson accepted that had the behaviour of the Martin group, as seen in the CCTV footage, been made known to her she would have expected, at the very least, that security would have intervened, and evicted the group. Ms Axelsson was able to identify herself at various parts of the CCTV footage. The intent seemed to be to show that she was out and about on the premises and from time to time walked past the Martin group without concern. My viewing of the footage shows Ms Axelsson moving directly about the premises, on one occasion delivering drinks, on another occasion heading for the entrance, but always seemingly intent on reaching a destination. There is no point at which Ms Axelsson seems to be monitoring any patron whom she walks past. Ultimately, I think Ms Axelsson provided important evidence in favour of the plaintiff's case. Her evidence about other incidents and the basis upon which patrons would be spoken to, or evicted, suggested that the Martin group should have been asked to leave long before the incident. It also seemed to me that any check on Mr Martin and his colleague when they re-entered the premises at 5:38pm was cursory at best, but probably non-existent. Ms Axelsson was concerned with bookings and the security guard does not seem to have engaged with Mr Martin. Ms Axelsson conceded that by October 2017 the premises were suffering a problem with alcohol-related violence. In my view the evidence of Ms Axelsson gave significant weight to the proposition that the premises were operated to maximise the sale of alcohol regardless of the impact on security.
3. Four aspects of this evidence may be noted: 1. Insofar as his Honour relied upon Ms Axelsson's evidence to conclude that "the Martin group should have been asked to leave long before the incident", the reasoning turned on "incidents" and the "basis" upon which patrons would be spoken to or evicted, that was based on assumptions put to the witness, rather than actual findings made by his Honour. 2. The same passage on its face conflates a patron being "spoken to, or evicted" to conclude that "the Martin group" should have been asked to leave. 3. The conclusion concerning monitoring for signs of intoxication turned upon what could be seen in the CCTV footage, coupled with Ms Axelsson's evidence that she was concerned with bookings. 4. The conclusion about whether the premises suffered a problem with alcohol-related violence turned upon the records of such incidents in the past, which has been addressed above.

The Crossguard witnesses

1. Ms Lewino denied that she saw any loud or obnoxious behaviour, or swearing or slurred words, or knocking over furniture, by any of the men with Mr Martin, and said that if she had noticed, she would have gone to the security supervisor and arranged for the group to be removed.
2. Mr Izmiritlian made a police statement on 8 January 2018, and a further statement on 22 September 2021. In "friendly" cross-examination from counsel for Bucket List, he confirmed that although he had been a security guard for many years, at the time he was merely an RSA marshal. He explained the difference: So, as an RSA marshal, you are not authorised or allowed to touch someone or escort them off the premises, as opposed to a security guard, you are. And basically, if I needed to basically escort someone off the premises then I would need to contact - or I need to call a security guard or a manager to do so. I would not be able to touch the person.
3. Bucket List cross-examined Mr Izmiritlian with a view to establishing that events escalated so quickly that there was nothing anyone could have done, even if licensed security guards had been present, to prevent the fight between Messrs Chadwick, Kerr and Martin. However, in cross-examination by counsel for Mr Chadwick, two things emerged clearly. The first was the practical difficulties flowing from the absence of a licensed security guard: Q. The difficulty you were placed in, because you didn't have that licence, was that one of the tools that you might have at your disposal if you were licensed wasn't available to you, namely being physically able to touch the patrons. A. Correct. Q. And that's not touching in the sense of you going in wildly swinging punches or anything like that, I understand? A. Correct. Q. That's you physically putting your hands in a kind of aid to a peace-keeping mission, to try and, for example, get the warring parties to move further away from each other? A. Correct.
4. For that reason, he said that it was "pretty important" to know whether the other Crossguard employees with him were RSA marshals or licensed security guards. He also confirmed that the licensee, or the manager with delegated responsibility, also had authority to physically touch patrons.
5. Mr Izmiritlian said that Bucket List would ask for, say five security guards, and then Crossguard would determine what the mix was between RSA marshals and licensed security guards. When asked whether he could remember any other time where the venue was as busy as it was on Friday 22 December 2017 when there was no licensed security guard on the team, he said "No, There was always licensed security".

Ground 6(a)

1. This sub-ground challenges an aspect of the reasoning at [81], where his Honour said: In my view the evidence of Ms Axelsson gave significant weight to the proposition that the premises were operated to maximise the sale of alcohol regardless of the impact on security.
2. That passage is an endorsement of the probative value of the evidence of Ms Axelsson by the judge who observed her cross-examination. It falls short of a finding that the premises were operated so as to maximise the sale of alcohol regardless of the impact on security, which is the finding challenged by this ground. No such finding was made. It is also self-evident that any such finding is inconsistent with the evidence. The incident diary recorded dozens of patrons who had been asked to leave for intoxication in the preceding months; that contradicts the finding that the premises were operated to maximise the sale of alcohol regardless of the impact on security. The fact that the "dancing man" appears to be drinking water after speaking with Mr Izmiritlian is another piece of evidence to the contrary.
3. This ground is not made out, because once again it does not accurately reflect the reasons of the primary judge.

Monitoring (Grounds 6(e) and (m))

1. These sub-grounds challenge the findings at 98 that there was a "distinct inadequacy in the monitoring of persons entering the premises" and "no staff at the premises were actively monitoring intoxication". Although the impugned findings are expressed generally, they have no significance to the reasoning in this litigation except in their application to Mr Martin and his group. The findings derive from the primary judge's assessments of Ms Axelsson's evidence at [77], and his Honour's consideration of Mr Zalewski's opinion that staff were monitoring intoxication as "unfounded speculation" at [109(a)], both of which were reiterated as a conclusion in [118] that "Other than a brief sign of interest by Mr Izmiritlian, no member of either staff acted appropriately to monitor, assess, or take any action in respect of the Martin group".
2. It is true that his Honour preferred the evidence of Ms Axelsson over that of Mr Izmiritlian concerning the assessment which was conducted when Mr Martin re-entered the premises at 17:38. But what was there to see? Let it be assumed that there was a breach of duty by either or both of Bucket List and Crossguard at that point. Mr Chadwick must still fail unless he can establish, the onus being steadily upon him to do so in accordance with s 5E of the Civil Liability Act, that an assessment would have resulted in Mr Martin being excluded. There is no evidence that supports such a finding. In a sense the best evidence is Mr Martin's appearance in the CCTV footage. As Mr Martin and his friend walk through, they are separated. Within the venue, around halfway to their table, Mr Martin places his right arm on his friend's shoulder, and as they walk along he places his left arm briefly on his friend's chest. Neither Ms Axelsson nor Mr Izmiritlian was asked whether that conduct would warrant refusing entry, and although that conduct might suggest a level of disinhibition, I am unpersuaded that it would be. Nor are there any findings that Mr Martin was slurring his words or smelled of alcohol or otherwise manifested intoxication in ways which might have been detected if he had been stopped and engaged in conversation by the security staff.
3. The finding impugned by ground 6(e) is premised upon there having been objective signs of intoxication as Mr Martin entered the premises (either at 17:00 or 17:38). There is no such evidence.

Objective manifestations of intoxication or anti-social behaviour (Grounds 6(h), (i) and (l))

1. The factual challenges concerning the manifestations of intoxication or anti-social behaviour in sub-grounds 6(h), (i) and (l) were closely linked to the case propounded on appeal in grounds 4 and 5, which were: Having acknowledged that legal authority was to the effect that no duty was owed by the appellant to the first respondent in the absence of either actual or constructive knowledge of Mr Martin's aggressive character when intoxicated, the Trial Judge failed to identify conduct by Mr Martin capable of giving rise to such knowledge. The Trial Judge erred in interpreting evidence of intoxication and shouting by Mr Martin and evidence of intoxication, rudeness and/or rowdiness by people at Mr Martin's table as evidence of aggressive tendencies by Mr Martin and/or of a foreseeable threat to patrons posed by Mr Martin.
2. These grounds are all directed to challenging the findings which were central to the first way in which Mr Chadwick advanced his case, namely, that Mr Martin and his group were exhibiting such signs of intoxication and anti-social behaviour that they should have been asked to leave before Mr Chadwick arrived. The following points may be made.
3. First, the primary judge nowhere indicated any conduct on the part of Mr Martin or his group suggesting that they would be aggressive. That however, falls short of being a complete answer to the first way in which Mr Chadwick advances his case. If Mr Martin should have been excluded for some other reason, that will suffice.
4. Secondly, the actual findings relied upon by his Honour for "disruptive or aggressive conduct" such as to engage a duty on the part of Bucket List or Crossguard to take immediate steps to protect other patrons from harm do not suffice. That is because mere intoxication which his Honour accepted based on Mr Kovacevic's evidence does not suffice, and the rowdiness and yelling which his Honour found based on Mr Garrow's evidence cannot, without more, speak of the time prior to 6pm. His Honour also relied on the admissions given by Ms Axelsson, but these were based on assumptions which were not made out on the evidence. In particular, they were not made out in relation to Mr Martin, as opposed to other men sitting with him.
5. Thirdly, in relation to the first way in which Mr Chadwick advanced his case, it appeared to be accepted that, save in an extreme case, the first step in reacting to an intoxicated patron would not be to evict him but rather to offer him soft drinks, or food, or take other steps to manage his level of intoxication. Crossguard's own documentation distinguished between managing the intoxication levels of patrons and patrons being asked to leave, the latter involving a set procedure (informing the security supervisor, requesting a second guard, being in the vicinity to lend assistance if necessary, informing the patron why they are being asked to leave the venue and logging the event in the incident book).

Causation (Ground 7)

1. This ground, as drafted, was confined to a challenge to the findings of causation on the first way in which Mr Chadwick advanced his case. It had two aspects. Grounds 7(a) and (b) related to factual causation. Ground 7(a) was that the primary judge had erred "by assuming, without finding, that the exclusion of one or more of the persons constituting Mr Martin's group would, on the balance of probabilities, lead to the exclusion of Mr Martin". Ground 7(b) was that his Honour had erred "by concluding that permitting Mr Martin to remain at the venue was a cause of the injury suffered by the first respondent". These grounds do not arise in circumstances where I have concluded that there was no breach of duty in failing to assess Mr Martin or his group for signs of intoxication. They are also problematic to address in the abstract, because of the variety of possibilities. Was the "dancing man" to be excluded by himself? Was the man who stumbled twice to be excluded? Were they both to be excluded? If so, when was that to occur? Was Mr Martin also to be excluded although no basis was identified in his objectively manifested behaviour for that to occur? If Mr Martin was not to have been excluded, would he have followed either or both of the "dancing man" and the "stumbling man", noting that the men at Mr Martin's table arrived separately? Further, would steps have been taken falling short of asking one or more of Mr Martin's group to leave, such as suggesting they drink water? It may be noted that the "dancing man" appears to have been drinking water at 17:48-17:49 when he arose from his seat and walked towards the bar returning shortly thereafter; it is possible that his drinking water reflected exactly what had been suggested to him by an RSA marshal. However, senior counsel asked Mr Izmiritlian this in cross-examination and he could neither recall nor tell from the CCTV footage what the drink was. It is unhelpful to address these grounds any further, save to note that the grounds draw attention to the absence of reasoning concerning (a) steps falling short of exclusion from the premises being taken, and (b) the distinction between Mr Martin and the men with him, one of whom was more exuberant and one of whom was less steady on his feet than Mr Martin so far as may be seen from the CCTV footage.
2. Ground 7(c) was a challenge to scope of liability. It was said that the primary judge erred: by assuming, without finding, that it was appropriate for the scope of the claimed negligence of the appellant in failing to exclude Mr Martin from the premises because of his intoxication, to extend to the injury suffered by the first respondent when no duty to remove Mr Martin from the premises relevantly arose and/or when no injury would have occurred but for the first respondent returning to Mr Martin's table and initiating the verbal argument and the physical assault.

The second way in which Mr Chadwick's case was advanced (Grounds 6(b), (c) and (d))

1. These grounds challenge the findings in 98, (b) and (c) of the reasons of the primary judge concerning the absence of licensed security guards. Based on the evidence of Mr Izmiritlian and Ms Axelsson, his Honour was satisfied that: (a) The first defendant was content to allow the establishment to operate without licensed security guards on duty. (b) Properly staffed, there was a real possibility that the fight could have been avoided. Licensed security guards, even one of them, could have physically intervened to separate the combatants and lead, at least one of them, from the scene. (c) The second defendant, knowing the nature of the premises and knowing that it was a very busy period, supplied an inadequate contingent of security personnel, both as to numbers and as to their capacity.
2. In order to address these grounds, it is necessary to bear in mind (a) the chronology of events in the minutes prior to the altercation between Mr Martin and Mr Chadwick, and (b) the difference between RSA marshals and licensed security guards.

The arrival of Mr Chadwick and the events which followed

1. At 18:00:40, Messrs Chadwick, Garrow and Bradshaw enter the premises. They are stopped at the table before reaching Mr Martin's group, where some of the patrons appear to pat the dogs.
2. At 18:01:30, there is the first interaction between the Martin group and the Chadwick group. It is uncontroversial that Mr Martin said something offensive to them, quite possibly in addition to the "sweet tatts" comment recalled by Mr Garrow. The Chadwick group spend some time trying to find a seat outside before, at 18:06:34, they return to the Martin group's table, where they stop to speak with Mr Martin. By 18:07:00, a number of onlookers watch the exchange between Messrs Chadwick and Martin. At 18:07:07, Mr Martin stands up and stands face to face with Mr Chadwick. At 18:07:16, Mr Kerr (wearing a blue shirt) steps forward and engages in discussion with Mr Martin.
3. At 18:07:32, a security guard walks swiftly past the Martin group towards the front entrance where Mr Izmiritlian was. At 18:07:48, Mr Izmiritlian walks towards the Martin group, reaching them at 18:07:54, and together with the other security guard, observe what is happening.
4. At 18:08:00, Mr Chadwick pushes Mr Martin. Mr Chadwick submits that he is shown to appear to rock backwards and that it is plausible that he did this defensively in the belief that Mr Martin might try to strike him. After Mr Chadwick pushes Mr Martin, he himself moved back away from Mr Martin. At 18:08:05, Mr Kerr pushes Martin hard, at least so far as appears from an iPhone video taken by another patron sitting behind Mr Martin. At 18:08:07, Mr Martin smashes a jug hurling it towards Mr Chadwick. At 18:08:10, Mr Kerr pushes Mr Martin forcefully. At 18:08:15, Mr Chadwick moves towards Mr Martin making what appears to be a punch which fails to connect with him. At 18:08:16, Mr Martin strikes Mr Chadwick three or perhaps four times with the barstool, rendering him unconscious.

The difference between RSA marshals and licensed security guards

1. The hearing was conducted on the basis that only a licensed security guard or the licensee or manager was entitled to remove a patron physically. In addition to Mr Izmiritlian's evidence in cross-examination to which reference has already been made, there was evidence that "RSA Marshal duties do not extend to physically restraining patrons to prevent entry or removal from licensed premises". That substantially accords with the legal position, which is a little complex, in part because of the different rights and obligations created by two legislative regimes.
2. On the one hand, s 77(2) of the Liquor Act entitled the licensee and his employees and agents to turn out persons who are "intoxicated, violent, quarrelsome or disorderly", and s 77(5) permitted the use of "such reasonable degree of force as may be necessary" to turn a person out. The history of that power (and in particular the meaning of "quarrelsome") was addressed by this Court in State of New South Wales v Thomlinson (2018) 98 NSWLR 315; [2018] NSWCA 151 at [69]-[72]. Further, a patron who is asked to leave but refuses to do so commits an offence: Liquor Act, s 77(4). In addition, s 77(13) provides that nothing in that or any other section of that Act, "operates to limit any other right a person has to refuse to admit a person to, or to turn a person out of, licensed premises". When a patron is asked to leave, he or she ceases to be entitled to remain on premises and becomes a trespasser. The person thus becomes under a legal duty to leave the premises, and may be removed without undue force without giving rise to an assault, as Latham CJ and Dixon J explained in Cowell v The Rosehill Racecourse Co Ltd (1937) 56 CLR 605 at 619 and 632; [1937] HCA 17.
3. On the other hand, it was an offence for a person to act as a "crowd controller" without being licensed under the Security Industry Act 1997 (NSW) (see definition of "security activity" in s 4 read with s 7), and "crowd controller" includes persons who, for remuneration, exercise functions of "controlling or monitoring the behaviour of persons to maintain order", "screening persons seeking entry" and "removing persons for behavioural or other reasons".
4. Thus the Liquor Act expressly authorises the application of physical force to remove certain patrons from licensed premises, while the Security Industry Act makes it an offence to remove persons unless a licence is held under that Act.

Ground 6(b)

1. It was common ground when the appeal was heard that no licensed security guard was present, and there was no suggestion that either the licensee Mr Champ (who left shortly before Mr Martin arrived) or the manager Mr Finchera (who assumed Mr Champ's position in his absence) was concerned about that fact. There was also evidence that Crossguard had always previously supplied at least one licensed security guard, although his Honour made no such finding. It seems likely that the finding in [98(a)] is confined to the evening of 22 December 2017.
2. It should have been obvious to the licensee Mr Champ and the manager Mr Finchera who came on duty after Mr Champ left at 5pm that no licensed security guards had been supplied by Crossguard. There is no evidence to suggest that either man complained about this. In the absence of such evidence, I fail to see how the finding can be challenged by this Court on appeal. Like a deal of the reasons of the trial judge, this is a finding which is likely to have been informed by an assessment of the testimonial evidence, including his Honour's sceptical assessment of Mr Champ's attempts to play down the recurring intoxication and violence on his premises. Bucket List made no attempt to engage with the restraint applicable to such a finding. The appellant did not point to "incontrovertible facts or uncontested testimony", nor was there anything "glaringly improbable" or "contrary to compelling inferences" about the impugned finding, which is a finding of secondary fact based on a combination of impressions from witnesses and other inferences from primary facts: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

Ground 6(c)

1. Ground 6(c) reflects an error in his Honour's reasons. It was no part of Mr Chadwick's case that there was a "real possibility" that he would not have been injured but for the breaches of duty by the defendants. On this aspect of Mr Chadwick's case, it was necessary for him to establish (he at all times bearing the onus in accordance with s 5E of the Civil Liability Act) that had licensed security guards been present, he would not have been injured. That involves, as Bucket List submitted, making assumptions about timing and location which are not found in his Honour's reasons.
2. The gravamen of Bucket List's challenge was that "nothing could be done by a licensed security guard to prevent the injury" even had one been present. Bucket List repeatedly relied upon its submission in writing, which was as follows: The reality with respect to causation and the force of lzmiritlian's evidence that, in his opinion, nothing could be done by a licensed security guard to prevent the injury, is underlined by the timing of events as recorded on the CCTV. At 18:06:49, Chadwick approaches Martin's table. Eight seconds later, the verbal exchange commences. Nineteen seconds later, Chadwick's friend, Tom Kerr, becomes an active participant. lzmiritlian arrives at Martin's table, 39 seconds after Kerr and prior to any violence. Eight seconds after lzmiritlian arrives, Chadwick pushes Martin. Eight seconds later, Martin throws a jug in Chadwick's direction. Two seconds later, Kerr pushes Martin. Under attack from two individuals, Martin picks up a stool and holds it with the legs downward in a defensive position. At 18:08:16, that is, 24 seconds after lzmiritlian's arrival, Chadwick lunges forward attempting to punch Martin but misses. Martin immediately responds by striking Chadwick with the legs of the stool.
3. In oral address, this was elaborated by reference to Mr Bruggerman, who was at the entrance and was said to be performing the role of the licensed security guard. It was put thus: Clearly Mr Bruggermann has been called in. He gets there twenty three seconds after Mr Izmiritlian gets there. Let's assume he is the licensed security guard. Let's assume he is called in. He gets there within twenty three seconds of the man who is just at the front gate as they gather in force. Whether he is licensed or not makes no difference to causation in this case. What he did was get there as soon as he could. It was too late. It was all over. It was so quick that this notion about the missing security guard or having two security guards, where is that other security guard going to come from?

Ground 6(d)

1. This ground challenges the finding by the primary judge at [98(c)] that "an inadequate contingent of security personnel, both as to numbers and as to their capacity" was supplied on 22 December 2017. This bears upon a number of issues in Bucket List's appeal and Crossguard's cross-appeal. One is whether the four Crossguard personnel present at the time, or the five which Bucket List had requested, were sufficient in number. Another is whether the fact that none of the four was a licensed security guard was sufficient. Related to this are the separate issues raised on appeal whether either or both of Bucket List and Crossguard breached the duties each owed to patrons, and if so, whether (as Crossguard contends on its cross-appeal, the primary judge erred in determining that as between themselves as joint tortfeasors, each was equally liable, which turns on the closely related issue of the extent to which each company contributed to the outcome that no licensed security guards were present at 18:08 on 22 December 2017. In this section of the reasons, I shall merely address the challenge in ground 6(d) to the finding of fact, noting that most of the balance of the issues mentioned above are addressed in the following section "Further issues arising on Cross-guard's cross-appeal". The upshot is that this section deals with how many licensed security guards should have been present on the evening of 22 December 2017, while the next section deals with which of Bucket List and Crossguard was responsible for there being none.
2. The primary judge found that none of the four people from Crossguard present on the premises on 22 December 2017 was a licensed security guard, although Mr Izmiritlian had formerly been one. That was inadequate on a busy night. Bucket List had anticipated that the last Friday before Christmas was likely to be busy, and asked for five Crossguard employees to attend.
3. It is true that his Honour went further, and also found that the Crossguard personnel were inadequate in terms of number. His Honour did not explain with any precision what this meant. If it were intended to convey that Bucket List should have requested more than five RSA marshals, then I see no foundation in the evidence for such a finding. The only aspect of the finding that matters is that providing no licensed security guards was a breach of duty.
4. How many licensed security guards would a reasonable licensee of the premises, or a reasonable security contractor, have provided on the late afternoon and evening of 22 December 2017? The venue was expected to be busy. The incident diary notes that it was 87% full by 4.30pm on Friday 22 December 2017, and the camera shows few empty seats. There had been a violent incident the previous weekend. Earlier in the year, a single licensed security guard was himself injured on a Sunday evening by an intoxicated patron. As will be seen below, the evidence from Mr Izmiritlian was that when the venue was busy, there would "most definitely" be more than one licensed security guard. The finding by the primary judge that the number was "inadequate" is imprecise, but given the history of the premises, I would conclude, consistently with his Honour's implicit reasoning, that hiring a single licensed security guard was not sufficient to discharge the duty to take precautions against the monotonously foreseeable likelihood, as had occurred most preceding weekends, that there would be a need for physical intervention in relation to intoxicated or violent patrons when the venue was busy.

Further issues arising on Crossguard's cross-appeal

1. Much of Crossguard's cross-appeal is resolved by what has already been said. In particular, the factual challenges made in grounds 4(a), (c) and (e) as to whether Mr Martin should have been evicted before Mr Chadwick arrived, whether proper regard was had to the contract between Bucket List and Crossguard, and whether there was inadequate monitoring of patrons at entry should be resolved, favourably to Crossguard, by reason of what has already been said. Likewise, Crossguard's challenges in grounds 4(b) and (d), which concerned the asserted error in finding that Crossguard should have intervened once the argument between Messrs Martin and Chadwick commenced, and that Crossguard had supplied an inadequate contingent of security personnel, "both as to number and capacity", must be rejected for the reasons already given. Crossguard should have supplied two licensed security guards, who could and should have intervened after the altercation began, and on the balance of probabilities their intervention would have prevented Mr Chadwick from being struck.
2. Crossguard makes some additional submissions on breach which should be noted and resolved expressly, although in light of the foregoing I shall do so concisely. I shall do so despite being conscious that numerous submissions were advanced in writing, were rejected by Mr Chadwick's written submissions, and not sought to be maintained in reply or in oral submissions (the oral submissions occupied a mere 16 pages of transcript, or somewhat less than an hour, in a two day appeal). It is not necessary to address each of the 152 paragraphs of submissions on liability, many of which appear to have been taken verbatim from submissions at trial, and many are directed to the first way in which Mr Chadwick advanced his case. Instead I shall focus on those which are most significant to the cross-appeal.
3. The most important point on liability concerns whether Bucket List or Crossguard or both were at fault for the absence of any licensed security guard on the premises when Mr Martin struck Mr Chadwick.
4. Crossguard complains that "it was never alleged that it was the responsibility of Crossguard to have two licensed security guards present" and that "[i]t was never put to Mr Izmiritlian that it was Crossguard that was responsible for having two licensed security guards there".

Separate duty of care owed by Crossguard (Grounds 1 and 2)

1. Crossguard advanced grounds 1-2 alleging a failure to identify the nature and scope of a separate duty of care owed by Crossguard to Mr Chadwick. There is force in the submissions of Crossguard concerning the abbreviated analysis of a separate duty owed by it in the reasons of the primary judge. However, in part that reflects a concession made at trial. At [119]-[120] the primary judge said: The second defendant submitted that, as a labour hire company, doing no more than supplying the personnel requested by the first defendant, its liability could not be derived from any obligation delegated to it by the first defendant. I agree, however, as the second defendant conceded, besides any possible liability through delegation, it also owed the plaintiff a duty of care through the actions of its employees. As I have said, both the Crossguard staff and the first defendant's staff were aware of the misbehaviour and intoxication of the Martin group.
2. At trial, counsel for Crossguard had said in final address: As your Honour rightly says, that doesn't mean we don't have a duty. We had people that went there because they were requested to go there. They have to do their job properly, and if they don't, that's where there might be some liability. But we say there's simply no liability.
3. In its written submissions to this Court, Crossguard relied upon what had been said by Brereton J in Quintano at [10]: A security firm contracted to provide security services to give effect to the licensee's obligation owes a duty of care to patrons, not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably have been anticipated [Collingwood v O'Reilly, [23]]. If a guard employed by such a firm neglects his duties, that is generally the responsibility of the security firm that employs the guard, not of the licensee/operator [Perkins v Redmond, [143]]. However, the duty of a security firm retained by the licensee/operator is influenced by the contract: if there is a complete delegation, then the security firm's duty will be similar to that of the proprietor; but if the firm is retained only to provide specific services, its duty is not enlarged beyond the prudent performance of those services.

Risk of harm (Ground 3)

1. By ground 3, Crossguard maintained that the "primary judge erred in determining that the risk of harm was foreseeable and not insignificant". No part of that ambitious submission was developed orally. In written submissions, it was said that there was "no evidence that Crossguard had any actual knowledge of the risk of harm". It was common ground that the risk of harm was from one patron hitting another. Crossguard had actual knowledge of the litany of acts of violence that had occurred in the premises over the previous three months, and of the security guard who had been injured earlier in the year. It was also said that because "the incident involving Chadwick appears to have been a 'one off' isolated incident, of which Crossguard could not be said to be on notice, Chadwick cannot show that the risk of harm in this case was one that can be described as 'not insignificant'". This proposition is falsified by the same history. Spontaneous acts of violence leading to physical injury had regularly occurred at the premises.

Objections to evidence of Mr Kovacevic (Ground 5)

1. Ground 5 is that "The primary judge erred in overruling the objections taken to the evidence of Elvis Kovacevic". Although the ground is framed in the plural, it was advanced by reference to a single point, namely, paragraph 10 of Mr Kovacevic's police statement, which provided as follows: I was trying to be as civil as I could around this group as I knew they would be trouble. I felt uncomfortable, they were very intoxicated, Some of them had bruised noses and strapped up hands. I just [felt] uneasy and like something was going to happen with this group as if they wanted to fight.
2. In support of the objection which was advanced by Bucket List, that this was impermissible opinion evidence, the primary judge said "It's just common sense isn't it", to which Mr Morris replied "Your Honour, I've got nothing further to put".
3. This ground was advanced in two sentences in Crossguard's written submissions, in a long section which did not distinguish between grounds 3, 4 5 and 6 (which dealt with duty and breach as well as the admissibility of evidence). The two sentences were: The trial judge's overruling of the objection to Kovacevic's speculative evidence at Black 491 N, showed trial judge's apparent "common sense" approach to this evidence that appeared to be that all intoxicated men are trouble. This approach can be seen in the trial judge's finding at RED 62F that "it is uncontroversial that intoxicated persons can be dangerous and can cause harm".
4. To this Mr Chadwick's submissions responded: Crossguard by ground 5 contends that the primary judge erred in "overruling the objections taken to the evidence of Elvis Kovacevic". The two sentences directed to this ground in written submissions (CS [113]) cite an objection taken by the Bucket List to paragraph 10 of Mr Kovacevic's statement (see Black2 491N, Blue2 487E). The asserted error is not clear. The evidence is a lay opinion which plainly was admissible: s 78 Evidence Act 1995 (NSW); Lithgow City Council v Jackson (2011) 244 CLR 352 at [45], [48].
5. Crossguard made no written submission in response. The ground was not abandoned in Crossguard's oral submissions, nor was it mentioned.
6. There was no error in admitting paragraph 10 of Mr Kovacevic's police statement. The evidence was admissible as a lay opinion pursuant to s 78 of the Evidence Act 1995 (NSW). In any event, Mr Chadwick's written submissions correctly asserted that the nature of the error for which Crossguard contended was unclear. It was never clarified. Even if there had been error, it could not be material until and unless the second way in which Mr Chadwick's case was advanced was rejected. It follows that even if the ground had been articulated and had have been made out, it could not give rise to any relief independently of the grounds challenging the acceptance by the primary judge of the second way in which Mr Chadwick's case was advanced.

Causation (Ground 6)

1. Ground 6 is that the primary judge erred in finding that the breach of duty owed by Crossguard was causative of Mr Chadwick's injury. The breach was in failing to supply at least two licensed security guards. I have referred above to the evidence that had that occurred, more likely than not Messrs Martin, Chadwick and Kerr would have been separated before Mr Martin struck Mr Chadwick.
2. Crossguard's submissions on causation had two themes. One was the evidence of Mr Izmiritlian that, by himself, he could not have stopped the altercation, even if he had maintained his security guard licence. That is not an answer to the causal impact of the breach in there not being two licensed security guards, which (according to Mr Izmiritlian) was generally the case when the venue was busy. The second was to point to the evidence of Crossguard's security expert, which pointed all blame to Bucket List for failing to establish a proper system of security. But once again that is not a basis for overturning the finding of causation based on the second way in which Mr Chadwick advanced his case.

Contributory negligence (Ground 8)

1. The essence of the position is this. Mr Chadwick received verbal abuse from Mr Martin on his arrival, to which he did not respond, at least not in any physical way. Mr Chadwick through no fault of his own had to pass Mr Martin's table again when searching for a seat. There was a further exchange, with Mr Chadwick facing up against Mr Martin over some 20 seconds between 18:07:05 and 18:07:25. Between 18:07:53 and 18:08.00, two security guards were immediately adjacent the three men. Then at 18:08:00 Mr Chadwick escalated the dispute by pushing Mr Martin. Mr Martin responded by picking up and hurling a jug to the ground, following which Mr Kerr intervened and pushed Mr Martin hard. One of the security officers placed himself between Mr Kerr and Mr Martin, but then Mr Chadwick returned from the side to attempt to strike Mr Martin.
2. The primary judge addressed contributory negligence as follows at [124]-[128]: I think it important to reaffirm that Mr Martin had loudly expressed an adverse view of the plaintiff's group well before the fight, in particular about Mr Bradshaw's tattoos. This conduct is precisely the type of conduct that should have led the defendants' staff to take action against the Martin group. I do also accept however, that when the plaintiff was conversing with Mr Martin the conversation obviously reached a point of substantial antagonism. Like Mr Bradshaw, I think the plaintiff had the option to walk away from the Martin group. In addition, the plaintiff pushed Mr Martin, perhaps justifiably, in his view, because of what was being said to him, but there is no suggestion that he was acting in self-defence. The same applies to the punch that he aimed at Mr Martin. The plaintiff told Dr Samuell that Mr Martin had "got into his face", causing the plaintiff to push Mr Martin away (Ex B, p 433). The CCTV footage clearly shows Mr Martin pointing to the street, presumably to engage in physical combat with the plaintiff. I think there was contributory negligence on the part of the plaintiff, but I think it is far exceeded by that of the defendants in allowing abusive, aggressive and obviously intoxicated persons to be on the premises. Had the Martin group been evicted or controlled no incident would have occurred. But they were permitted to be there, enabling the altercation to commence. The plaintiff should have ignored whatever taunting was aimed at him, but he chose to remain and take part. In doing so he failed to take care for his own safety. In my view, the presence of the Martin group was by far the major factor in the altercation. I assess contributory negligence at 20%.

Quantum (Appeal ground 9, Mr Chadwick's cross-appeal)

1. There was no challenge to the assessment of non-economic loss of $46,000 or out of pocket expenses of $7,000. Bucket List and Crossguard contended in ground 9 of the appeal and ground 10 of Crossguard's cross-appeal that there should be no, or minimal, economic loss.
2. It will be recalled that the primary judge awarded past economic loss of $154,360. That represented half average week wages (of $1,453 gross or $1,135 net) multiplied by the 272 weeks since the accident. To that was added an amount representing superannuation, and a small buffer of $25,000 for future economic loss.
3. The primary judge confronted the fact that the symptoms suffered by the plaintiff varied from time to time, saying at [203] that "there have been periods when the plaintiff's incapacity was greater and, as I have found, the incapacity is diminishing with time", but that "[d]oing the best I can to achieve a balance between his capacity and the times when he could not work or produce an income, I think a fair approach would be to allow for half of net average weekly earnings to date. Although this loss is constant, it takes into account fluctuations between a total loss and no loss at all".
4. By his own cross-appeal, Mr Chadwick sought much more substantial amounts of economic loss, by reference to the case rejected at trial, which (on one basis) included past economic loss of some $1,061,000 and future economic loss of $1,357,000 less a discount. At the hearing, a much more modest contention was advanced, which recognised the force in the proposition that there was no causal connection between the incident in December 2017 and any loss after September 2020. At that time, Mr Chadwick was arrested after suffering a psychotic episode. The primary judge was not satisfied that the assault in December 2017 was a cause of the episode. Mr Chadwick streamed video of his arrest on his social media channel, which was then suspended by Instagram.
5. Nonetheless, Mr Chadwick sought to recover much larger amounts for the period between the assault and September 2020, either $196,000 or $178,000. The former was calculated by reference to anticipated profits from a business supported by his Instagram profile of selling fitness gear under the brand "Rig Fit". The latter was calculated by the lost opportunity of receiving income for paid third party endorsements. This was calculated at $5,000 per week for 2.75 years, less a 50% discount for this loss being a lost chance and a further discount for tax. The former presupposed that the Rig Fit business, which had hitherto always run at a loss, would generate very substantial profits commencing in the financial year ending 30 June 2019. It was said in that year to make a profit of $619,000, and to repeat that performance subsequently, from which Mr Chadwick acknowledged a very substantial deduction of 75% was to be applied to reflect this being a chance.

Statutory contribution (Ground 8 of Crossguard's cross-appeal)

1. Ground 8 of Crossguard's cross-appeal challenges the primary judge's determination that each of Bucket List and Crossguard should be equally liable to Mr Chadwick.
2. As previously noted, neither Bucket List nor Crossguard chose to advance much by way of detail as to the contractual relations between them, or the way each shift of Crossguard employees was chosen. It is unclear on the evidence how many of Crossguard employees were RSA marshals, how many were licensed security guards, and how many were both. There was evidence from Mr Champ, general but not implausible, that normally at least one licensed security guard was provided. Crossguard's sole director, Mr Tux Akindoyeni, gave evidence that: When requesting security personal, the Bucket List did not differentiate between security guards and RSA marshals. My understanding was that because it wasn't a nightclub, they were not required to have a certain number of security guards on duty.
3. In Quintano v BW Rose Pty Ltd [2009] NSWSC 446, Brereton J referred to the duty upon a licensee to provide security, which may be delegated, adding at [9] that: However, the extent to which delegation will discharge the licensee/operator depends on the extent of the delegation, and if it is the licensee/operator who determines the number of security staff and level of security to be provided, there is no delegation of the responsibility to ensure an adequate level of security, and no discharge from that duty [cf Perkins v Redmond, [144]].
4. The present case is an intermediate one. Bucket List delegated the provision of security to Crossguard, but reserved to itself the determination of how many security staff should be present, and left it to Crossguard to determine how many would be RSA marshals and how many would be licensed security guards.
5. Bucket List was operating licensed premises, where there was a need for security who were authorised physically to intervene. In partial satisfaction of that duty, Bucket List retained Crossguard to supply "security". However, there is nothing to suggest that Bucket List paid any attention to how many of the Crossguard employees were licensed security guards as opposed to RSA marshals. There is nothing to suggest that anyone on the part of Bucket List was concerned when it was apparent that none of the four Crossguard employees who appeared on Friday 22 December 2017 was a licensed security guard.

Costs (Ground 9 of Crossguard's cross-appeal)

1. By ground 9 of its cross-appeal, Crossguard challenged the order that it pay Mr Chadwick's costs. It will be recalled that, in a second judgment, the primary judge departed from the default position that there be no order of costs, notwithstanding that the action fell within the jurisdictional limits of the District Court.
2. It is necessary to re-exercise the discretion as to costs, in light of the partial success of some aspects of the appeal. Crossguard and Bucket List should still have judgments entered against them, but for lesser amounts.
3. Paragraphs 154-159 of Crossguard's written submissions addressed this ground. Those submissions did not assert any error on the part of the primary judge in the exercise of his discretion. Mr Chadwick's submissions in response said: Crossguard does not identify any error at all, much less one within the principles stated under House v The King (1936) 55 CLR 499. The submissions only cite authorities. The primary judge gave reasons for why costs were awarded (Red 107-110) and no issue has been taken with those reasons. That discretion has not miscarried.
4. Crossguard filed written submissions in reply, but did not respond on that ground. Nor did Crossguard advance any oral submissions on this ground.
5. In those circumstances, there is no reason to depart from the unchallenged exercise of discretion by the primary judge. This was a complex hearing, with many issues in play, with three parties represented by senior counsel. The matters which led to the primary judge departing from the default position are not substantially altered by the conclusion that only one of Mr Chadwick's bases of liability has been upheld. Nor are they altered by the increase in his contributory negligence from 20% to 50%.

Conclusion and orders

1. For those reasons, Bucket List's appeal and Crossguard's cross-appeal should be allowed in part, while Mr Chadwick's cross-appeal must be dismissed. The foregoing may be summarised as follows. 1. No error is established in respect of the findings of duty and risk of harm. 2. Many aspects of the reasoning concerning breach of which Bucket List and Crossguard complain are made out, such that the primary judge's conclusion that but for the breaches by Bucket List and Crossguard, Mr Martin would have left the premises before Mr Chadwick arrived cannot be upheld. 3. However, it was a breach of duty by both Bucket List and Crossguard not to have at least two licensed security guards on duty on Friday 22 December 2017. But for that breach, Mr Chadwick would not have suffered injury. 4. The assessment of contributory negligence of 20% by the primary judge must be set aside, and should be replaced by a determination that Mr Chadwick's damages be reduced by 50%. 5. The challenges to past economic loss by all parties fail. 6. The challenge to future economic loss succeeds. 7. The challenges to statutory contribution and the order as to costs fail.
2. The judgments against Bucket List and Crossguard in the amount of $200,706.40 must be set aside and in lieu thereof judgments in the amounts of 50% x $225,883 = $112,941.50 entered, reflecting contributory negligence of 50% and no component of future economic loss. The stay of execution granted by the primary judge must be discharged. There is no reason why Mr Chadwick should not have the benefit of post-judgment interest, from the time the primary judge entered judgment in his favour. That is readily effected by ordering, pursuant to UCPR r 36.11(2), that the judgment made in lieu by this Court be taken to have been entered on 9 March 2023. The orders of the primary judge concerning the cross-claims for statutory contribution should remain unaltered. So too should the orders made by the primary judge as to costs.
3. The result is limited success for all parties. It is possible that the appropriate order for costs in this Court be that each party pay his or its own costs, reflecting that outcome. However, there may be matters of which this Court is not aware, and it may also be that one or more parties wishes to be heard further as to costs. The orders I propose will permit that to occur.
4. The formal orders I propose are as follows:

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2023