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Date: 14 September 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

IN THE SUPREME COURT OF THE ) No. ACTCA 5 - 2007

) No. SC 427 of 2002

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CAFTOR PTY LTD

(ACN 008 598 089) t/as

MOOSEHEADS BAR & CAFÉ

Appellant

AND: MATTHEW BRENDEN KOOK

Respondent

Judges: Crispin P, Gray & Madgwick JJ

Date: 14 September 2007

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a decision of the Master in which he found that the appellant had breached a duty of care that it owed to the respondent, and that it had thereby caused him injury.

2. In the early hours of Good Friday, 29 March 2002, the respondent and some friends were at “Mooseheads”, a nightclub in Canberra, when the respondent fell on the dance floor on the upper level of the premises and cut his hand on a glass. The appellant owned and operated the nightclub and was at all material times the occupier of the premises.

3. The parties had agreed that the Master should hear evidence only in relation to the issues as to liability, leaving damages to be assessed later if liability were to be established.

4. The appellant challenges various findings concerning the nature and extent of the duty of care that the respondent had been owed by the appellant, the circumstances in which he was injured and the breach of that duty. The duty of care

5. The respondent relied upon the duty of care said to be owed by occupiers to persons who had entered the premises pursuant to a contractual entitlement and, in the alternative, to the more general duty of care owed to entrants without such an entitlement.

6. His claim to have entered pursuant to a contractual entitlement was founded upon the contention that he had paid an entry fee. This claim was disputed. The licensee, Ms Miladinovic, and a former Mooseheads security manager, Mr Shaw, insisted that there had been no cover charge and that the amounts collected from customers such as the respondent had related to their participation in a raffle.

7. The respondent gave evidence that he had been a regular Mooseheads customer and held a “Moose Card” which entitled him to discounted prices for drinks, free entry at some times and a reduced entry charge at other times. He explained that the ground floor level of the club was generally open to the public, but an entry fee was charged to go upstairs to the bar and dance floor. Upon payment of the entry fee, a patron would be given a stamp, which the Master understood was applied to the back of the hand, as evidence of payment.

8. The respondent said that on the night in question, he and a group of friends, who included Dane Miller, Rebecca Blewitt and Kaine Miers, arrived at Mooseheads some time after 11.30 pm and, after paying the entry fee, went upstairs. This account was supported by evidence given by his companions.

9. The Master found that the respondent and each of his witnesses had clearly paid an amount that apparently represented a cover charge, and that they had understood had been reduced because they were Moose Card holders. The charge had been collected by a staff member at the foot of the internal stairs, who gave them a stamp, which the Master inferred was an inked rubber stamp applied to the back of the hand, and a raffle ticket. The fee they paid on the night was $2.00 or $3.00. The Master accepted that each of them understood that they had been required to pay the amount before being permitted to go upstairs and had been largely unaware of any details about the raffle such as the nature of prizes.

10. Mr Shaw and Ms Miladinovic both claimed that there had been no entry charge and no obligation to purchase tickets in the raffle. They said that the raffle, which involved a single prize of $200 and was drawn at about midnight, was well known to those described as Mooseheads’ “preferred customer base”. Both witnesses also claimed that a customer could have declined to enter the raffle and been permitted to go upstairs without fee.

11. There was no evidence that any customer had ever declined to pay the amount sought or that staff had been given any instructions about what to do in the event that a customer did so.

12. The Master found that the staff had taken no steps to inform customers that payment of the fee was optional and that the appellant had had a financial disincentive to inform customers that payment was not compulsory. The Master observed that this had provided an adequate explanation for their failure to have done so if, indeed, they had intended it to be optional. The Master also said that his opinion about this aspect of the matter had been reinforced by the evidence of stamping on entry, and took judicial notice of the fact that this technique was commonly adopted at pay-for-entry venues as an alternative to issuing pass-outs to customers who wished to leave and return later. Had the amounts collected at the foot of the stairs been unrelated to a right of entry, stamping would have been unnecessary. The Master concluded that the appellant had represented to customers that entry to the upstairs level was available only upon payment of a fee and that the respondent had accepted this representation in good faith and paid the fee for the right of entry. Hence, he had been owed the standard of care due to someone entering premises pursuant to a contractual entitlement.

13. This finding was challenged on the ground that the Master should have preferred the evidence of Ms Miladinovic and Mr Shaw to that of the respondent and his companions. The competing arguments as to the credibility of these witnesses will be discussed later in this judgment but, for present purposes, it is sufficient to observe that, even if the Master had accepted the evidence of Ms Miladinovic and Mr Shaw on this issue, that would not have precluded the challenged finding. We must say that we share his Honour’s apparent scepticism of their claim that they had genuinely intended that the money be collected for the raffle, and that no-one be denied admission due to non-payment. However, that is immaterial. In the circumstances of this case such a subjective intention could not have warranted a different conclusion. Whatever their state of mind, a reasonable observer would have been left in no doubt that the request for a set sum of money, made upon entry to a nightclub and without explanation, was an entry fee. As Denning LJ said in Solle v Butcher [1950] 1 KB 671 at 691: …once a contract has been made, that is to say, once the parties, whatever their inmost states of mind, have to all outward appearances agreed with sufficient certainty in the same terms on the same subject matter, then the contract is good unless and until it is set aside … (cited with approval by Mason ACJ, Murphy and Deane JJ in Taylor & Ors v Johnson (1982) 151 CLR 422 at 429).

14. Neither Ms Miladinovic nor Mr Shaw were present when the respondent and his companions entered the nightclub and the appellant did not call the person who collected the money from them to give evidence. Despite Ms Miladinovic’s claimed expectation that Moosehead’s preferred customers would have understood that they were merely being invited to participate in the raffle, we can see no reason to doubt the evidence adduced on the respondent’s behalf on this issue. Accordingly, the finding that a contract for entry to the premises was formed between the parties was inevitable.

15. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 the High Court effectively overruled earlier authorities to the effect that the nature of an occupier’s duty to those on his or her premises varied according to whether they were invitees, licensees or trespassers. It is now clear that, even in the absence of a contract of the kind alleged by the respondent, an occupier has a duty to take reasonable care for the safety of people entering the premises and what is reasonable will vary with the circumstances of the entry. When there is such a contract, the duty of care is an exacting one. As McCardie J explained in the early case of Maclenan v Segar [1917] 2 KB 325 at 332-333: …where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties, unless it provides to the contrary, contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.

16. This principle was accepted by the High Court of Australia in Watson v George (1953) 89 CLR 409 per Fullagar J at 424 and both the NSW Court of Appeal in Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374 and the Victorian Court of Appeal in Downunder Rock Cafe Pty Ltd v Roberts (1998) Aust Torts Reps ¶81-481 have affirmed that it has not been subsumed within the more general approach adopted in Australian Safeway Stores Pty Ltd v Zaluzna.

17. The Master found that this principle determined the standard of care that the appellant had owed to the respondent when he complied with the request for payment and entered the upper floor of Mooseheads. Whilst, as we have mentioned, the appellant challenged the finding that there had been a contract for entry, it was not suggested that the Master had fallen into error in holding that this principle was applicable to cases in which people did enter premises pursuant to such contracts. The accident

18. The respondent explained that on the upper floor of Mooseheads there were toilets, a bar, an open area with vinyl flooring and a slate dance floor set down a step below the rest of the flooring. The respondent said that the dance floor was very wet and sticky in some places.

19. There was a conflict of evidence as to the circumstances in which the respondent fell and as to whether the glass was in his hand or already on the dance floor.

20. The respondent said that he was on the dance floor, talking with friends about where they would spend the night and how they would get there and “having a bit of a dance” when he was bumped from behind. He had not had a glass in his hand and did not see the person who bumped him. He lost his balance, slipped and fell backwards. He put his right hand out to break his fall but when he hit the floor he felt a sharp pain in that hand.

21. When he saw that it was bleeding, he applied pressure to the wound with his other hand. He then went to the “bouncer” and asked for help. The bouncer looked at the injured hand and took the respondent to a store room where he found a piece of gauze to put on the wound before taking him downstairs and out to the footpath. The respondent’s friends found him outside and a young woman, who proved to be a trained nurse, provided first aid. An ambulance subsequently arrived and took him to hospital.

22. Mr Miers said that he had been standing quite close to the respondent at the time of the fall, and remembered that they had been discussing how they would get home and where they would stay when the respondent fell over backwards. It appeared that his feet had slipped out from underneath him. Mr Miers did not see what caused him to fall. He then saw him get up with a bleeding hand, leave the dance floor and go to the bouncer with Ms Blewitt. When they went downstairs, Mr Miers followed with Mr Miller. He later asked the bouncer if he could go back into the club to call an ambulance and waited with the respondent until the ambulance arrived.

23. Ms Blewitt said that the group had been dancing and “just hanging out” but it was late and they were talking about going home. She was facing the respondent and saw him fall. She said that he did not have anything in his hands. She thought that he had been bumped but did not actually see a person bump him. She recalled seeing a glass on the floor and, when he put his arm out to break his fall, she saw his hand come into contact with it. She then saw a lot of blood. She said that she then took the respondent to the bar area and asked a staff member for some kind of bandage before going to get her other friends. At that time she noticed a bouncer talking to a female employee. When she returned, she found that the respondent had gone downstairs. She and her friends followed a trail of blood out to the pavement where they found him. They tried to get back into Mooseheads to obtain a towel and call an ambulance but were refused entry. However, a staff member eventually called an ambulance for them.

24. Mr Miller was also called to give evidence but he said that he had not actually seen the respondent fall.

25. The case for the respondent was also supported to a limited extent by the contemporaneous records of the accounts of the incident that he gave to people who treated his injury later that night. The notes made by the attending ambulance officers record: “Patient states fell on dance floor and cut hand +++ on broken glass on floor (outstretched hand to break fall)”. Notes apparently made at 6.15 am by staff of the emergency department at Canberra Hospital record: “In a bar – accidentally pushed and fell backwards – put out hand which landed on a glass – bled +++ - ambulance called – arterial bleed noticed”. A further history, taken by anaesthetist at some time prior to 11.15 am, was in the following terms: “Fell backwards onto glass – cut right palm, numbness lateral three fingers – ETOH +++ - still smells of ETOH – not nauseated – no vomiting …”. It was not suggested that, despite the effects of alcohol, fatigue and injury, the respondent would have been likely to have formulated and maintained a false account of the incident so soon after it occurred.

26. The appellant called Mr Carl Shaw, who provided a very different account of the incident. Mr Shaw had been head of security at Mooseheads at the time. He said that that on the night of the accident there had been about sixty customers upstairs and about fifteen to twenty had been on the dance floor. At about 4.00 am he saw two men on the dance floor. He thought that they were obviously friends. They were apparently having a good time, with a little bit of pushing and shoving but no real aggression. He was keeping an eye on them to make sure that their behaviour did not get out of hand when he saw one of them leave the dance floor and return with a drink in his hand. Mr Shaw was about to get up and tell him to take the glass off the dance floor when the other man approached the man with the glass, grasped him under the armpits and picked him up. Mr Shaw explained that the men were facing each other and, as he was picked up, the man with the drink wrapped his legs around the other man’s waist in a scissor movement. The other man then released him and he fell backwards. He put out the hand holding the glass to stop himself but the glass shattered when it hit the floor and cut his hand. Mr Shaw said that he was about two or three metres from them and that he immediately went to the man on the floor to see how badly he was injured. He went to get a tea towel to try to stop the bleeding and when he returned saw that the man, whom he identified in evidence as the respondent, was sitting on the floor and that a girl was looking after him. Mr Shaw claimed that he had inspected the wound cursorily and placed the towel on it as a pressure bandage. He then left the girl to keep pressure on the wound and asked another member of the staff to ring an ambulance. He then went back to the respondent and the girl, and walked downstairs with them. He got a chair for the respondent to sit on while waiting for the ambulance. Mr Shaw said that he made a handwritten report of the incident in an incident report book but that it had been destroyed in a subsequent fire at Mooseheads.

27. Ms Miladinovic, who had been the licensee of Mooseheads, gave evidence that she had seen the report and remembered that it contained an account of the incident similar to that described by Mr Shaw in his evidence.

28. In analysing the evidence concerning this incident, the Master made the following observations: 53. I should say at the outset that I formed the impression that all of the witnesses who gave oral evidence answered the questions addressed to them honestly and to the best of their recollection. At first blush it might appear that the Court is confronted by two starkly opposed versions of the incident in which the plaintiff was injured, and that one of those versions must be true and the other false. Where witnesses give their evidence confidently, and will not concede in cross-examination that they may be mistaken about some aspects of their evidence, one can gain the impression that the evidence on one side must be true and on the other must be deliberately fabricated. It does not seem to me that this is the proper analysis in this case. 54. There are grounds for casting doubt on the evidence supporting both versions. In relation to the plaintiff’s version, it can be said that he had had a lot to drink on the night, and that this must have affected his faculties at the time and his subsequent recollection of events. The same can be said, though to a lesser extent, of his companions. Additionally, one can point to factual differences between their accounts. 55. As to the latter, it would be surprising if their accounts tallied in every respect, as to events some three and a half years earlier: indeed, absolute consistency of accounts often causes suspicion that there has been a degree of reconstruction and collaboration. Although the plaintiff and his friends admitted to having discussed the incident amongst themselves at various times, the discrepancies go some way to persuading me that the evidence of each represents a personal recollection rather than some kind of partnership effort to tell a story calculated to assist the plaintiff’s case. Whilst I must accept that the plaintiff and his friends were intoxicated to varying degrees at the time of the incident, I accept that the evidence of each of them conveys a genuine recollection of what happened. 56. It is a matter of great regret that, because of the fire, the Court does not have the benefit of the incident report completed by Mr Shaw on the night of the accident. It is common knowledge that memory can play tricks on one. We have all had the experience of remembering, apparently with precision, some incident or place, only to be later satisfied that the memory is in some major respect inaccurate. I have no doubt that Mr Shaw at some time saw an incident of the kind he described, where a customer picked another customer up and effectively dropped him to the floor. It may have been on the same night as the plaintiff’s accident, or on some other night. But the memory is uncorroborated, other than indirectly by Ms Miladinovic, and is quite inconsistent with the memory of the plaintiff and his friends. Mr Shaw’s version was put to each of them in cross-examination and they each denied it categorically. I have no doubt that it was a genuine memory for Mr Shaw subjectively, but, without intending any disrespect to him, I prefer the evidence of the plaintiff and his friends on that issue. 57. I accept that Mr Shaw made a note about the accident in the incident report book, and that Ms Miladinovic read the note the next day. She conceded that she did not look at it again before the book was destroyed in the fire. I cannot be satisfied that her recollection of what she read on that occasion is accurate. Mr Shaw is a truthful and reliable man and I would expect that she would be motivated to accept a statement from him in preference to statements from the plaintiff and his friends. After all, the plaintiff is claiming damages from her company and has much to gain if his story is accepted, whereas Mr Shaw no longer works for the company and, as he said in the witness box, has nothing to lose or gain from the outcome of the case. Hence it would be human nature for her recollection of what she read in the incident book to be coloured by her opinion as to Mr Shaw’s reliability. In the absence of the incident report book, her evidence as to her recollection of an entry which she read once, three and a half years before she gave her evidence, is not enough to cause me to prefer Mr Shaw’s evidence to that of the plaintiff and his friends. 58. There is one further matter which causes me to prefer the plaintiff’s version to that of Mr Shaw. According to Mr Shaw, the plaintiff had just left the dance floor to get a drink, and was walking back on to the floor with his drink when the incident occurred. Mr Shaw has the plaintiff picked up by his friend into the air, then falling to the dance floor with the glass in his hand, the glass breaking on impact with the floor and cutting the plaintiff’s hand. The plaintiff’s uncontradicted evidence was that he was drinking schooners of beer all night. If Mr Shaw’s version is correct, as the plaintiff fell he must have spilt the contents (about 400 to 450 ml) all over himself and the floor. One would have thought that such a spillage of beer would have been a significant feature of the fall and of an eyewitness’s recollection of it. Mr Shaw mentioned nothing about a spillage of liquid and I had the impression from his evidence that his recollection was of an empty glass in the plaintiff’s hand. 59. For those reasons I accept that the plaintiff’s accident happened generally in the way he described in his evidence. I accept that he was bumped from behind by someone on the dance floor, causing him to lose his balance and fall. I think it more likely than not that his evidence, and that of Ms Blewitt, are correct to the extent that he did not have a glass in his hand at the time, but that his hand came into contact with an empty glass already on the floor as he fell.

29. It was argued on appeal that this approach did not adequately expose the reasoning process that led the Master to prefer the evidence give by the respondent and the other witnesses called on his behalf to that given by Mr Shaw. Those reasons that did emerge from the analysis were unconvincing and there were a number of factors that appeared to have had no significant impact upon his reasoning process. It was clear from the hospital notes that the respondent had been more heavily intoxicated than his evidence might have suggested, Mr Miers had conceded having been “moderately intoxicated but not drunk” and, whilst Ms Blewitt had said that she had stopped drinking about an hour or an hour and a half earlier and was “sobering up”, it was submitted that the Master should have given greater weight to the risk that their recollections may have been influenced by the alcohol the had consumed. The incident had occurred in the early hours of the morning when the effects of the alcohol might well have been compounded by fatigue. Furthermore, they had subsequently discussed the incident and, whilst it was not suggested that this “collaboration” had been undertaken for a dishonest purpose, it might nonetheless have led to subconscious reconstruction.

30. Whilst the factors relied upon by the appellant in support of this argument were obviously pertinent to the issues that the Master was required to resolve, we can see no reason to doubt that he gave them due weight or that the relevant findings were not open to him. Whilst Ms Blewitt did say that she had been sobering up, she also said that by the time of the accident she was “not drunk at all”. It was entirely understandable that this group of friends would have subsequently discussed the incident and we see no reason to regard this as having undermined their credibility. Such discussions may, of course, have a subtle influence on the memories of some of the participants but it was not put to Ms Blewitt that her evidence had been influenced by them. Mr Miers agreed that his evidence had been so influenced but, whilst the terms in which made this concession were not entirely precise, it appears that he was attempting to explain that the discussions had influenced his evidence by jogging his memory of things and that he had then been able to recall them.

31. It was also argued that the Master fell into error by assuming that factual differences between the accounts given by these witnesses “established” that each had a genuine recollection of the relevant events. We are unable to see anything in the reasons for judgment that suggests such an assumption. The Master said only that the discrepancies went “some way” to persuading him that the evidence of each was founded upon personal recollection of the events rather than the adoption of a jointly formulated story calculated to assist the respondent’s case. This seems to have been an entirely reasonable response to the contention that the discussions amongst the respondent and his witnesses may have influenced their evidence and produced some conformity as to the essential allegations. However, counsel for the appellant went further, suggesting that the accounts that they had given had been “staggeringly discordant” and that the Master should have realised that their memories had been so clouded by alcohol as to be unreliable. In fact, whilst there had been potentially significant discrepancies, the respondent, Mr Miers and Ms Blewitt described the actual fall in terms that were mutually compatible. Furthermore, the Master was clearly conscious of the discrepancies in relation to other aspects of their accounts and there is no reason to doubt that he gave them due weight. It was obviously necessary for the Master to take the inconsistencies into account. However, they essentially related to things that occurred in the aftermath of the accident when the respondent was presumably in pain due to the injury and his friends may have been preoccupied by concern about his condition. It would by then have been after 4.00 am and they would have been tired. The respondent and Mr Miers may also have been affected to varying degrees by the alcohol they had earlier consumed. It is not uncommon for witnesses to differ, even substantially, in their recollection of events that preceded or followed an accident even though they seem to have clear memories of that accident itself. A trial judge must, of course, assess the potential significance of any such discrepancies in the context of the evidence as a whole and we see no reason to suppose that the Master fell into error in doing so.

32. It was contended that the Master should have preferred the evidence of Mr Shaw because he had been sober, alert to the movements of the respondent, immediately went to his aid and subsequently made a contemporaneous record of the incident. The evidence of Ms Miladinovic corroborated not only his account of making the note but of its contents. Furthermore, he was no longer employed at Mooseheads at the time he came to give evidence and should have been seen as an independent witness. These were all cogent considerations but there is again no reason to suppose that they were not duly taken into account by the Master.

33. The Master’s finding that all of the witnesses had given their evidence honestly was not challenged and the conflict as to the manner in which the respondent came to fall onto the floor was presumably attributable to an honest mistake of some kind. The crucial question is, of course, who was mistaken? The respondent was a stranger to Mr Shaw and his observations of him were made at about 4.00 am in the dim light of a nightclub in which other people were moving about. It is, we think, possible that an incident of the kind that he described did occur on the night in question but that the respondent was not the person whom he saw lifted by the armpits. It should also be remembered that neither the respondent nor any of his witnesses saw who bumped him or what led to him being bumped. It is even possible that he became the unwitting third party in the horseplay of two other men. On the other hand, Ms Blewitt said that she was facing him when he fell. It seems highly unlikely that she would not have noticed if another man had lifted him in the manner described by Mr Shaw, though it may have been understandable if she had not noticed an incident that may have occurred behind him and been wholly or partially obscured from her vision by his body. Furthermore, acceptance of Mr Shaw’s evidence would require an assumption that the respondent and Mr Miers were similarly mistaken. Whilst, as we have mentioned, the respondent was apparently intoxicated, it seems unlikely that he could have been lifted bodily from the floor, responded by wrapping his legs around his assailant and then been dropped without realising that this had happened. The histories recorded in ambulance and hospital notes shortly after the accident are also consistent with his version of the accident and contain no hint of any incident of the kind described by Mr Shaw.

34. There were competing arguments about the significance of Ms Blewitt’s observation that the glass that caused the respondent’s injury was a spirits glass. Counsel for the appellant contended that it tended to confirm that accuracy of Mr Shaw’s evidence that he had seen the respondent with a glass of that kind in his hand. On the other hand, counsel for the respondent pointed out that the respondent’s evidence of drinking schooners of beer during the evening had not been challenged in cross-examination and argued that it was unlikely that the respondent had picked up a spirits glass when venturing onto the dance floor. Furthermore, Ms Blewitt confirmed that the respondent had not had a glass in his hand.

35. We think it was unappellably acceptable for the Master to find that the accident occurred in the manner described by the appellant. The alleged breach of duty

36. In discussing this aspect of the case, the Master made the following observations: It seems to me also relevant to the scope of the duty of care that the plaintiff entered the premises, to the knowledge of and with the encouragement of the defendant, for the purpose of consuming alcohol, the consumption of which would inevitably have the effect of impairing his faculties mentally and physically. In some circumstances a tortfeasor will owe no greater duty of care to a victim of the tort merely by reason of intoxication; and in certain circumstances the fact of the victim’s intoxication may reduce the scope of the duty or remove it entirely. But the present case is in a different category, by reason of the interest of the defendant in selling alcohol to the plaintiff for consumption on the premises, on which it provided a dance floor and music. This aspect of the relationship, combined with the defendant’s knowledge of the presence of glassware, including broken glass, on the dance floor, leads inevitably to the conclusion that a reasonable person in the position of the defendant would have foreseen that the conduct of its business involved a degree of risk of injury to customers in the position of the plaintiff. This is not determinative of whether or not there was negligence. It is also necessary to ask whether the defendant’s failure to eliminate the risk of injury showed a want of reasonable care for the plaintiff’s safety: Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47; Tame v New South Wales (2002) 211 CLR 317 per McHugh J at 353.

37. There was ample evidence from the respondent and his witnesses as to the state of the dance floor when they attended on earlier occasions. The respondent said that it had not been uncommon to encounter empty bottles or glasses on the dance floor and that people would move them, sometimes with their feet, towards the sides. On previous occasions he had noticed that the floor was not only wet but also crunchy because of broken glass underfoot, and he had sometimes later found glass fragments in the tread of his shoes. Mr Miers said that there had always been glasses on the dance floor. People just put them down where they were standing when they finished their drink. He had accidentally kicked glasses while dancing and had seen other people do the same. He also recalled finding glass fragments in the soles of his shoes after a night at Mooseheads. He said that he had regularly taken bottles and glasses onto the dance floor at Mooseheads and that he had also put his glass down on the floor, particularly if there had been no room on the nearby shelf or tables. The floor had always been sticky. Ms Blewitt said that she had previously had seen glasses, empty and full, around the dance floor, including broken glasses. They were cleared every ten or fifteen minutes by bar staff. Customers would kick glasses occasionally. There had been no signs prohibiting the taking of glasses onto the dance floor and she had regularly done so. Her friends had sometimes taken a jug onto the dance floor and filled their glasses from it but she had never been asked to remove either a jug or glass from the floor. She had seen people spill drinks on the dance floor and had done so herself. The dance floor was always sticky. Mr Miller had made similar observations. He had seen glasses and broken glass on the dance floor and he had often gone home with glass fragments in the soles of his shoes. He had also taken glasses on to the dance floor. There had seen no sign prohibiting drinks on to the dance floor but on rare occasions he had been told by a staff member to take his glass from it.

38. It was argued that the Master had fallen into error in admitting the bulk of this evidence because it had been “tendency evidence” and due notice had not been given of the respondent’s intention to adduce it, as was said to be required by s 97 of the Evidence Act 1995 (Cth). We do not agree that the evidence should be so characterised. Whilst it is true that it revealed a propensity for customers to take glasses onto the dance floor, the real significance of the evidence was that it exposed a frequent, if not constant, danger created by the presence of the glass on the dance floor prior to the accident and that this should have alerted the appellant to the need to consider whether some further precaution should have been taken to protect subsequent entrants such as the respondent.

39. The appellant sought to answer this contention by reference to what Ms Miladinovic regarded as the unwritten rules of behaviour at night clubs and the measures that it had taken to minimise glass on the dance floor. The Master observed that it was clear from Ms Miladinovic’s evidence that she had taken the view that it had been unnecessary to spell out unwritten rules of customer behaviour including what she suggested was the rule that drinks should not be taken onto dance floors. She suggested that these rules should have been known to people of the demographic attracted to Mooseheads, including the respondent and his friends.

40. The respondent agreed that there had been a “general sort of knowledge that you weren’t supposed to go on the dance floor with drinks” but said that there had been no signs and customers had often taken glasses or bottles onto the dance floor. He had often seen people sipping away at their drinks while dancing. Staff did sometimes direct them to put the glass down or to leave the dance floor but in his experience this had happened on only twenty to twenty-five percent of occasions.

41. Mr Shaw agreed that on occasions customers went on to the dance floor with glasses, bottles and jugs. He said that they would hide them from him. It was not unusual for him to hear the sound of a dropped glass breaking. About a year before the respondent’s accident, the appellant had decided to permit a limited number of glasses on to the dance floor. Mr Shaw found that he was continually on the floor telling people not to drop their glasses, but that they refused to listen and showed him no respect. The amount of broken glass on the dance floor became intolerable. At one point management brought in plastic glasses, and at another time ‘shatter’ glasses which shattered in a similar fashion to a car windscreen, rather than breaking into spiked or jagged shards. By the time of the respondent’s accident, this policy had given way to one of zero tolerance for drinks and glasses on the dance floor, though finding broken glasses on the floor remained a common occurrence. Mr Shaw agreed that the surface of the dance floor became slippery and also sticky depending on the contents of spilt drinks. He also agreed that there were no warning signs prohibiting the taking of drinks on to the dance floor at the time of the accident. He accepted that signs would have been desirable. He agreed that the layout of the dance floor made his task of keeping drinks and glasses off it very difficult, and that it could have been improved if there had been a single entrance to the dance floor.

42. Ms Miladinovic insisted that there had been a fundamental rule that glassware was not permitted on the dance floor and said that glasses or bottles found unattended anywhere on the premises were to be cleared immediately. She was well aware of the problem arising from customers taking bottles and glasses on to the dance floor and leaving them around the edges but said that she would sometimes pick them up herself and that this problem had been the major reason for the employment of security staff to watch customers there. She said that there was a significant turnover of glasses and that she sought to buy glasses which broke safely into smaller pieces rather than into longer shards. However, broken glass was always a problem and even the safer glasses were capable of cutting people. She dismissed the suggestion that she could have put up a sign prohibiting glasses and bottles on the dance floor, responding, “obviously you’ve never been to Mooseheads”. She agreed that she could have put such a notice on the “talking board”, which was an electronic sign upon which advertising and other messages could be displayed. She added that she had since asked herself why she had not thought of doing so. She did say, however, that “nothing stays on the walls” and that signs put up some years earlier, with an illustration of a bottle inside a circle with a line across it, had not worked.

43. When asked how customers were meant to know that they were not permitted to take bottles or drinks onto the dance floor, given the absence of signage, she referred to the card system and said that the regular customers knew of the relevant principle. When asked how they would draw such a conclusion, she said “it’s just something you know after a while”. She was then asked how a person who was not a regular customer could be expected to realise it, to which she replied that such people were addressed by security. She also said that this was not a rule specific to Mooseheads and that patrons who visited Mooseheads only occasionally “should know from other nightclubs”.

44. Ms Miladinovic agreed that Mooseheads used rope barriers on poles downstairs to channel queues but said that she had not thought that the extent of the problem created by drinks and glass on the dance floor warranted using such barriers to create a single entry point. She thought that the problem was adequately controlled by the use of security guards. She also thought that a rope barrier would not have been effective. She suggested that she had not seen this as a major problem and mentioned that she had been trading for more than five years prior to the time of the respondent’s accident without any incident resulting in a similar injury.

45. Mooseheads was almost completely destroyed by fire less than a year after the accident and the reconstructed building apparently has a low wall around most of the dance floor with access limited to a set of stairs. Ms Miladinovic claimed that, despite this new layout, people passed drinks through to the dance floor all the time. This claim did not accord with either the experiences of Ms Blewitt or the expectations of Mr Shaw. When Ms Blewitt returned to the nightclub she found security staff standing at the stairs and stopping people with drinks from going on to the dance floor. She said that she had not since seen bottles or glasses on the dance floor and that the surface was no longer sticky. When the present layout was described to Mr Shaw, he said that it sounded “fantastic” and that it would have made his job much easier. However, the Master did not seek to resolve this apparent conflict and, for present purposes, we are content to assume the accuracy of Ms Miladinovic’s claim.

46. The appellant also relied upon evidence of what was described in argument as a back up system of collecting those glasses that made it on to the dance floor. Ms Miladinovic’s son, Peter, was employed as one of a number of ‘glassies’ who walked about collecting dirty glasses. They did other jobs related to the cleanliness of the premises such as mopping and collecting ashtrays, but alternated these jobs so that two of them were always collecting glasses. He said that he paid particular attention to the dance floor, saying that glasses were not meant to be on it, but that people did sneak them on from time to time. As the glass collectors were doing their rounds, another staff member would be circulating with a mop, and they would keep each other informed of the whereabouts of empty glasses or of spillages. They had been told that the important issue was to keep glasses off the floor. On the dance floor, he would sweep any broken glass into a pile and then into a corner. He would then come back with a long-handled dustpan to collect the broken glass and other rubbish. He agreed that a lap by a glass collector was expected to be done every fifteen minutes and that a glass might be on the dance floor for ten to fifteen minutes.

47. The Master began his analysis of the evidence concerning the alleged breach of duty by adverting to the problem and acknowledging the steps that had been taken to address it: As to the presence of glasses on the dance floor, whilst there is some difference in emphasis between the various witnesses, it is plain that it was commonplace for there to be glasses on the dance floor. I accept that it was Mr Shaw’s job, and that of the other security officers, to prevent as far as possible customers taking drinks on to the dance floor in glasses or bottles or jugs, and that they did their best to enforce the policy. I also accept that the glass-collecting staff regularly made their way around the floor collecting glasses and other rubbish, and emptying ashtrays. It is clear from Ms Miladinovic’s evidence that broken glasses were a neverending problem for the night club. Ms Miladinovic is patently conscious of her obligations under her liquor licence, even if she may not be aware in precise terms of the requirements of the applicable legislation. Her task, like that of most liquor licensees, is complicated by the competing demands of the liquor authorities on the one hand, and the necessity for the business to make a profit out of liquor sales on the other. I am satisfied that the system in operation at Mooseheads on the night of the accident represented a balancing of those competing forces.

48. The Master went on to find that the relevant risk itself and the degree of the probability of its occurrence were both high, but observed that he was obliged to balance these factors against the expense, difficulty and inconvenience of taking alleviating action. The Master also said that he needed to consider whether the system employed by the appellant to minimise the risk of injury should be seen as an adequate one and referred, by analogy, to cases in which people had been injured due to things being spilled or dropped on the floors of supermarkets. He proceeded to cite the following observations by Handley JA in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104 (NSW Court of Appeal, 3 May 1991): There can be no doubt that the law imposes a high duty of care on the occupiers of shops such as supermarkets to protect the public from the risks associated with the presence of material which has been spilled or dropped in areas used by the public. However the duty remains one of reasonable care. The occupier is not an insurer. As Mahoney JA said in Phillis v Daly (1988) 15 NSWLR 65 at 72: The Court is required to identify what is the thing which the defendant should … have done and to examine, in terms of reasonableness, the acceptability of it … the test of reasonableness involves a value judgment. But, by framing the question in terms of what actually happened and what caused it to happen, this approach enables the court to focus upon what precisely it was that the defendant should … have done and to judge that. In my opinion an occupier cannot reasonably be expected to prevent material being dropped in areas being used by the public. Nor can an occupier be expected to remove material the instant it is dropped. What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material.

49. This passage had been relied upon by counsel for the appellant who had argued that there had been a reasonable system of collection of glasses and bottles and mopping up of spillages. Hence, the appellant had not been shown to have been negligent. As the Master pointed out, supermarket spillages were not directly comparable to the presence of glasses on the dance floor of a nightclub such as Mooseheads. The appellant sold alcoholic drinks in glasses or bottles to its customers, knowing that the dance floor was adjacent to the bar and knowing of the regular, almost continuous, presence of glasses, bottles and spilt drinks on the surface of the dance floor. Indeed, the presence of glasses and of spilt drinks on the surface of the dance floor was a virtually inevitable concomitant of the conduct of the nightclub. In this regard a nightclub and a supermarket were at opposite ends of the spectrum. Furthermore, the respondent and his friends had been entrants pursuant to contract.

50. The appellant had not adduced any evidence as to the profitability of its business and did not suggest that there had been financial constraints that might have prevented it from taking more effective steps to ensure that glasses did not find their way onto the surface of the dance floor, or if they did, that they were detected and removed immediately.

51. The Master found, in summary, that the premises had not been as safe for the purposes of the respondent as reasonable care and skill on the part of anyone could have them. There had been steps available to the appellant that would have reduced the risk of injury. These included more regular tours of the dance floor, if necessary by the employment of more staff, to detect and remove glasses more quickly; the placement of rope barriers to direct customers to a single entry point on to the dance floor, such that security officers could more readily have determined whether they were carrying drinks, bottles or jugs; and the strategic placement of notices informing customers that taking drinks on to the dance floor was prohibited. The system of collecting glasses had been inadequate. Accordingly the respondent had established the alleged breach of duty.

52. It was submitted that the Master had fallen into error by failing to accept that the appellant had done all that could reasonably have been expected of the occupier of premises used as a nightclub. It was argued that the evidence did not reveal any substantial amount of glass on the night of the accident and that the appellant had been entitled to expect that the bulk of the customers would behave responsibly. Nonetheless, it had acted prudently by employing security guards whose duties included intervening when the odd patron disobeyed the unwritten rule and attempted to take glasses, jugs or bottles onto the dance floor. It had then introduced a back up system to ensure that those glass objects that wound up on the dance floor despite the best endeavours of the security guards were promptly collected by glassies whose alternating laps of the premises should have ensured that the dance floor was cleared of such objects every seven to eight minutes.

53. This argument might have been more convincing had the evidence not revealed that neither the unwritten rule nor the measures taken by the appellant had prevented the frequent presence of glasses and broken glass on the dance floor. The premises were simply not as safe for the purposes of dancing as the exercise of reasonable care and skill could have made them. There were adequate answers to the rhetorical and somewhat plaintive question: “what more could the appellant have done?”. The most obvious answer was that it could have i) erected signs informing customers that drinks could not be taken on to the dance floor and that anyone who did so would be ejected and ii) exhibited a preparedness to enforce that warning.

54. A number of objections to this proposition were raised in argument but none were persuasive. First it was objected that the signs would not have been read in the dimmed light of the nightclub. We accept that visibility would have been limited in the area adjacent to the dance floor where the dimness of the lighting may have been relieved only by alternating strobe lights but there were means of making the signs legible. They could have been affixed to the front door of the club, prominently displayed at the foot of the stairs and, as Ms Miladinovic effectively conceded, a notice could have been put on the talking board. Second, it was objected that the appellant had previously erected notices but found them ineffective. Despite this experience, Mr Shaw, the appellant’s former head of security, accepted that signs would have been desirable. There was no evidence as to the prominence of the earlier signs and, in any event, they apparently lacked any specific reference to the dance floor or any suggestion that the prohibition would be enforced. We also note that Ms Miladinovic did not dismiss the potential utility of a notice on the talking board but, on the contrary, said that she had since asked herself why she had not thought of doing so. We see no reason to doubt that the incidence of glass on the dance floor would have diminished substantially had anyone who disregarded such a sign been summarily ejected from the premises. Third, it was objected that this proposition had not been raised at the trial of the action. This is simply incorrect. Much of the respondent’s case was based upon the appellant’s failure to provide signs to the effect that glasses were not permitted on the dance floor. Furthermore, it was expressly put to Mr Shaw that it would have been a good idea to have had a sign that read “ People who take glass on the dance floor will be ejected”. It is true that the cross-examiner did not ask a further question explicitly suggesting that the sanction of ejecting those who acted in contravention of the prohibition should have been implemented rather than remaining an empty threat, but that was, we think, an obvious corollary of the suggested words on the proposed sign. Furthermore, at one point, Ms Miladinovic volunteered the fact that she had previously considered not only ejecting but banning repeat offenders from returning to the club for stipulated periods.

55. In our opinion the Master’s finding on this issue was entirely open to him. Contributory negligence

56. The Master rejected a defence of contributory negligence, citing his findings that the respondent had been bumped by another customer, lost his footing and fallen. His Honour said that he had not had a glass in his hand as he fell and that there had been nothing he could have done to avoid the accident.

57. Given the findings as to the manner in which the accident occurred, we think that this conclusion was inevitable.

Delay in judgment

58. Counsel for the appellant stressed the extensive delay in the delivery of judgment and submitted that this required a more comprehensive review of the evidence than would otherwise have been required. We were referred to a number of authorities including Goose v Wilson Sandford & Co (1998) 142 SJLB 92, Moylan & Ors v The Nutrasweet Company & Ors [2000] NSWCA 337, Hadid v Redpath [2002] NSWCA 416, Expectation Pty Ltd v PRD Realty Pty Ltd and Another (2004) 209 ALR 568, Monie & Ors v Commonwealth of Australia (2005) 63 NSWLR 729 and CSR Ltd v Della Maddalena (2006) 224 ALR 1, the effect of which is said to require “a more stringent approach”, to use the term employed by Giles JA in Monie & Ors v Commonwealth of Australia at [3], to issues as to whether error has been demonstrated or the trial judge’s reasons are adequate. We have borne in mind the admonitions mentioned in these cases, whilst bearing in mind that the essential consideration is not delay per se but the effect that the passage of time may have had on the quality of the decision making in question; see, for example Monie & Ors v Commonwealth of Australia at [3] and [44]. This is not a case in which there are significant findings expressed to be founded upon impressions of the credibility of witnesses formed by reference to their demeanour in the witness box. A trial judge may nonetheless enjoy subtle advantages over an appeal court of a kind that he or she may be unable to adequately articulate or even, perhaps, fully recognise. Little, if any, weight may have to be given to such considerations when there has been extensive delay. Nonetheless, in the present case we think it was entirely open to the Master to accept the evidence of the respondent and his witnesses in preference to the account given by Mr Shaw.

59. We do not accept that any appellable error has been demonstrated. On the contrary, we think that the Master’s decision was correct. If we had accepted the appellant’s contention that we should consider the matter afresh, whether by reference to the principles explained in Warren v Coombs or otherwise, we would have come to the same conclusions.

60. The appeal will be dismissed with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 14 September 2007

Counsel for the Appellant: Mr H Marshall SC with Mr D C Morgan

Solicitor for the Appellant: Ken Cush & Associates

Counsel for the Respondent: Mr R Crowe SC with Mr I D Bradfield

Solicitor for the Respondent: Baker Deane & Nutt

Date of hearing: 8 August 2007

Date of judgment: 14 September 2007

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