Club Italia (Geelong) Inc v Ritchie & Anor [2001] VSCA 180

5. The ball from which this litigation arises was held on Saturday, 28 October 1995. It had disastrous consequences. Violence erupted and a senior constable of police, Brett Anthony Ritchie, who had been sent to the premises, was savagely assaulted in the car park by some of the patrons shortly after 1 o'clock on the Sunday morning. He brought a County Court action for damages for negligence in respect to his injuries against the Club and the State of Victoria. A jury began hearing the case, but it was discharged early in the trial and the judge continued to try the action without a jury. When the parties had closed their cases it was agreed that written submissions should be made and in due course, on 19 April 2000, his Honour published substantial written reasons for decision, in which he determined that the plaintiff had failed to prove negligence against the State of Victoria but that the Club was liable to him, and assessed the damages at $476,274. Judgment was given accordingly on 26 April 2000 after the making of appropriate adjustments. A direct order for costs was made against the Club in favour of the State of Victoria.

8. His Honour's reasons do not deal with the defence of contributory negligence raised by the Club. The material before us does not show this defence to have been abandoned and counsel were unable to explain how it came about that the matter was not dealt with. No point has, however, been made of this omission, if indeed omission it was.

11. No question arises about the dismissal of the claim against the State of Victoria. That party has been made a respondent to the appeal taken by the Club and counsel for the State of Victoria appeared briefly before us to intimate that his client's only interest was in the preservation or obtaining of an order for costs in its favour.

14. The appeal attacks the decision on liability and, in one limited respect only, that on damages. As regards liability, the Club says that it owed the plaintiff no duty of care but that if it did owe a duty the judge erred in making a finding of breach of duty; in the further alternative, it is said that the judge erred in finding that the breach of duty was causally connected with the plaintiff's injury.

17. The plaintiff's case, very shortly stated, was that an attack on him was launched by a highly aggressive patron when he and a young constable had, at the Club's request, returned to the premises at about 1 a.m. after going there about an hour before and making a "walk through". He said that the instigator of the attack against him was an outstandingly aggressive person who had been the centre of attention at the Club throughout the night and who should have been evicted from the Club or otherwise dealt with long before his own second or even first visit to the Club. He contended that the Club had allowed a dangerous situation to arise and to continue at the Club by failing to take appropriate steps to stop it arising or bring it to an end. He said that the Club, knowing that he was, at its request, to return to the ball at about 1 a.m. with only one other officer, had failed to take steps to warn him of the danger he would face and had failed to inform those in control of him of the need for additional police, a situation having arisen in which it was likely that a melee would develop among patrons - as indeed it did - which could be brought to an end only by the attendance of a substantial number of police officers.

21. We come now to the facts in detail. The Club had a liquor licence for the ball. No liquor was included in the price of the tickets and there was no arrangement for liquor to be taken to the tables: it was simply available at the bar. The number of tickets sold by Concepts Functions Organisers was 413 and there was no evidence that there were additional patrons at the ball. There were only fourteen debutantes. Most males were wearing tails, dinner jackets or suits.

24. Five crowd controllers were engaged for the night. The person in charge of them was a woman and the other four were men - Castle, Conn, Vincent de Stefano and an unnamed fourth man. Vincent de Stefano was the son of the president of the Club, Gerald de Stefano. Of the five crowd controllers only two gave evidence - Castle and Conn, the former being called by the plaintiff and the latter by the Club. Gerald de Stefano gave evidence that at about 7 p.m. - half an hour before the ball was to start - he briefed the four out of the five crowd controllers who were present. People began arriving at the ball at about 7 p.m.

27. The crowd controller called by the plaintiff, Castle, arrived at the Club at about 7.30 p.m., the time at which the function was to begin. He said he had to break up a fight or scuffle between two males within about a minute of his own arrival. According to Castle there were minor scuffles or fights during the night and some of the patrons were "basically looking for trouble". By the time he arrived it was apparent that some patrons had already had too much to drink: there were a few people already under the weather. One man stood out as an aggressor, a big man (later identified as Holton), wearing a western flannelette shirt and jeans and described by Castle as a steroid-muncher. (Holton was the man later to initiate the attack on the plaintiff.) Holton was sitting with other men - sometimes two, sometimes three, sometimes four. Holton's group of about nine men were showing aggression. He himself looked so powerful that it would easily have taken two controllers to hold him down. He and his companions were sitting there drinking and looking around. Castle said he first noticed Holton behaving aggressively towards another man at about 8 o'clock. Insulting remarks were being exchanged between Holton's group of about nine men and another group of men.

30. The controllers - we continue to summarise Castle's evidence - persuaded a few people to leave the function for their own safety because they did not think they would be able to control things later on. The people they asked to leave were not aggressors but victims. Early in the night the controllers thought that if they asked Holton to leave a serious disturbance would take place and so they did not get rid of him. There were enough controllers present to deal with Holton's group of nine but not to deal with a situation in which more people joined in. There was feuding going on between different factions. The minor scuffles went on throughout the night. A lot of the men were getting cocky because of alcohol. They were swearing at the opposing group and at the controllers. They were saying things to the controllers like "I will knock your fuckin' block off" and "cunt" and "I think you're smart, prick" and "wait till I get you later". They were saying things like that from about 9.30 or 10 p.m. on.

33. They did not get rid of the aggressors because if they had done so it was possible that "it would have started big time from then" and they would not have been able to control the crowd. There were not enough crowd controllers to control the number of people at the function. Castle had been told by the female controller there would be 150 people at the function. During the night Holton abused the controllers "and seemed to try to bug us into the fight". He had discussed the problems with the female security officer, who was his superior, and left it to her to discuss them with the management.

37. The Club admitted that its manager, Roger Gilbert-Kent, had, at the suggestion of the controllers, sent for the police. He did this just before midnight. As a result, about two minutes later a divisional van containing the plaintiff and a young constable named Keogh was despatched by D24 to the Club, arriving a few minutes later. The female controller told the plaintiff, he said in evidence, there had been scuffles throughout the night and asked if the police would do a walk through. They did this and about half a dozen patrons abused them by calling out words like "fucking pigs" and "cunts". A lot of the patrons appeared to be drunk or intoxicated to some extent and a lot of these looked young. After the walk through he suggested to the female controller that they should consider stopping the serving of alcohol well before closing time. She asked him if they would come back at about 1 a.m., which was closing time, and he replied that they would do this and "just sit out the front". Quite apart from the knowledge of the female controller and at least one other controller (Castle), the defendant accepted that it was aware of the arrangement that the two police officers would return at 1 a.m. Indeed, according to the manager, Gilbert-Kent, whose evidence on the point the judge did not accept, the plaintiff said, "We will bring a brawler van. We'll bring something along because we could have problems here".

40. Castle described the period between the walk through and 1 a.m. as a tense time, like an accident waiting to happen. The female controller had removed a few females from the toilet "because of the spewing and carrying on" and she was occupied with those problems, which meant that there were only four controllers to deal with the rest of the crowd. She would have been helpful in a fight, Castle said. The police walk through had not changed the atmosphere. After the police left, Holton and his group had not calmed down or changed their aggressive posture. At one stage he, Castle, had discussed with the female controller and another male controller the danger that fighting would break out. The tension was building up gradually in about the last hour before the attack on the plaintiff. The troublemakers were swearing and scuffling and pushing people over chairs. Shortly before the two police returned to the Club a fight broke out on the dance floor involving Holton and a number of others. Five or six men were fighting. According to Castle, he and Conn removed a number of the participants by taking them out through the foyer. By the time he and Conn came back the two police officers were in there also.

44. We return now to the plaintiff's account. He said that he and Keogh returned in their van to the Club, arriving at about 1 a.m. They sat in the van for a few minutes, parked outside the Club. Then someone came running out and said there were brawls happening inside. They entered the huge dance floor area, and saw probably more than 30 people fighting on the dance floor. He and Keogh went in to break up the fight and they started getting kicked and punched and he told Keogh that they should back off. They then found that someone had taken Keogh's baton from him in the fighting. As they were backing away from the fight someone ran up and said that there were brawls in the car park. They went out into the car park and saw a young man who was obviously drunk king hit by another who ran up behind him and knocked him to the ground. The plaintiff was concerned that the man who had been felled, being drunk, might choke and die, and went to him and turned him on his side and told a bystander to get an ambulance. Then there were brawls in the adjoining area of the car park and he and Keogh approached that area, he himself having drawn his baton. Thereupon the man Holton, who was very well muscled and about twice his size, ran at him saying "I'm going to fucking kill you". He struck at Holton with his baton but Holton came on and started kicking and punching him, and then a lot of others joined in, kicking and punching him, and then someone tried to remove his gun from its holster. He was knocked to the ground and the kicking and punching continued, as did the attempts to grab his gun and the threats by a number of people to kill him. He heard the sound of sirens and not long after that police reinforcements arrived. Keogh had summoned them from the van shortly before. When the police arrived the fights continued. He was helped to his feet and then another man attacked him. Another police officer came to his assistance and they handcuffed that offender. The sergeant was reading the Riot Act. About four police officers were taken to hospital. According to one witness there were about 15-20 police officers at the scene.

47. It was accepted that the Club had made no attempt to contact the police or to warn the plaintiff or his companion between the time when they left the Club after the walk through and the time when the brawl at the Club began not long after 1 a.m.

51. A witness named Connor described the wild scene outside the Club Italia:

"It looked like one of them soccer riots, there were groups of people moving all over the place. I couldn't identify anyone who was involved outside. I've honestly never seen anything like that except on television and it was bloody frightening, just the way they were carrying on and that someone could have got killed. When everyone starts running around and like that it's a wonder someone wasn't trampled or something . Its pretty hard to explain. I reckon that it went on outside for I suppose three quarters of an hour and once it had all cleared I went over to see if my car was damaged. I went and spoke to Jock and Mark two policemen I know from Drysdale who had arrived. I remember seeing about 15 or 20 police there at the end but I didn't see anything involving them. It was going on in different areas of the car park. I stayed inside with my wife Rhonda to look after her and there was no way known I was going outside until it was all cleared up. I also remember seeing a young bloke laying on the ground there outside and the ambulance blokes picking him up. ... I saw a lot of ripped shirts on blokes and there was a bit of yelling and screaming from outside while all this fighting was going on."

56. Crowd controllers have been required to be licensed since the amendment made by Act No. 37 of 1990 to the Private Agents Act 1966. One of the amendments made to the principal Act in 1990 was the insertion of s.41A, requiring any person who directly or indirectly employs a crowd controller to work at any public place to keep a register which must contain, among other things, details of all incidents requiring the removal of any person from the public place. The plaintiff put in evidence an incident report contained in the register kept by the defendant. It reads:

"Ongoing incidence [sic] all night no ejections during the course of the evening. Police called approximately 10.30 p.m. because of constant altercations. Requested police return 1.00 a.m. because of fear of major problems. Nine police cars in attendance to [sic] ambulances called one for cut wrist one for being knocked unconscious. 4 arrested. Police hurt."

60. This entry contains a number of admissions on the part of the defendant. The first is that there were ongoing incidents all night. The second is that no person was ejected during the course of the evening. This statement was presumably made on the basis that victims of aggression who left because they were asked to do so on the basis that the controllers could not protect them should not be regarded as having been ejected. The third admission is that the police were called because of constant altercations. The fourth admission is that the police were asked to return at 1 a.m. because of fear of major problems.

64. What the arrangements were between the female controller, who was the captain of the five-person team, and the four men was not made clear. The controllers were evidently paid individually by the Club. The cases of both the plaintiff and the Club were conducted, as appears from their conduct of the trial generally, their written submissions put in after the close of the evidence and, by inference, the judge's reasons for decision, on the basis that the Club was liable for the acts or omissions of the controllers. No distinction was at any stage of the trial or during the appeal drawn between possible breaches of a possible duty owed by the Club itself to the plaintiff and possible breaches of a possible duty owed by the controllers to the plaintiff for which the Club was vicariously liable. The only question debated, at the trial and on the appeal, as regards the existence of a duty of care, was that of the duty said to have been owed by the Club itself. One thing is plain, however. It was never suggested at the trial, and never suggested on appeal, that, if the Club owed a duty of care to the plaintiff, the crowd controllers should not be treated as part of a team, comprising the Club's manager, its president, the female captain and the four male controllers, established by the Club for the purpose of maintaining security at the ball. The defendant has, both at the trial and on appeal, put forward the team, said to have been briefed by the president shortly before the ball got under way, as the defendant's organ responsible for security. We therefore do not consider whether the controllers themselves owed a duty of care to the plaintiff or the question of vicarious liability.

68. The defendant, as we have said, called one crowd controller, Conn. He gave quite short evidence. We do not deal with it in detail, because of the view which the judge took of it and the concession made on appeal that it was open to the judge to reject his account. He said he could remember no briefing. It was a reasonable night. There were little verbal niggles going on all around the hall but nothing that went any further than that because the controllers stopped it by reminding the nigglers that they were at a deb ball. He saw no scuffles until after midnight. The two Holton brothers appeared hostile to each other, shaping up as if they were going to punch each other, but he told them to calm down and they did. There was no sign of intoxication before midnight. He did not hear any insults offered to the police during the walk through. The night wound down as a normal night does. He did not apprehend trouble. At about 1 o'clock two people were fighting, but the controllers separated them and they went outside. Then he saw the police. They were just separating people, taking them outside too, but it was not too big from his recollection. He gave no evidence-in-chief about the melee in the car park. Cross-examined, he said that he saw no disturbance of any kind in the car park.

71. Like Conn, the Club's president and secretary saw and heard no evil. It was a certain je ne sais quoi which had led to the summoning of the police at midnight and the request that they return at 1 a.m. Understandably, neither of these witnesses too impressed his Honour, and again it is accepted that it was open to him to reject their accounts. The Club's manager, Gilbert-Kent, said that the president had taken the overall control of the controllers and the bar staff. Underage people kept going to the bar trying to get drinks and he made an announcement at about 11.15 p.m. telling them not to do so. At 11.58 p.m. he called the police. If his memory served him correctly, there had been a feeling all through the night, a little bit of animosity in the room, and the controllers must have come to him and suggested that he telephone the police. There were no altercations. But there was a general feeling that it was not one of those happier nights. There were pockets around the room that you just felt were a little bit ugly. It was this witness who swore - and the judge rejected this evidence - that the plaintiff told him after the walk through that there could be problems later and that on their return they would bring a brawler van.

74. At about 1 o'clock there was, Gilbert-Kent continued, an altercation between two males - it was just a shove. He went outside and said to the two police, "Look, there's a bit of an altercation inside, we might need your help". He himself went back inside the building and there was nothing going on, and that was it. Cross-examined, he said he could not remember why he called the police car initially. As to events after 1 a.m., there was a bit of pulling of a shirt and it was over in seconds. There was no brawling inside the hall at all.

77. Gerald de Stefano, the president, was the last witness. No intoxicated person was served. But young people were continually coming to the bar seeking to buy drinks without identification. An announcement was therefore made. He saw nothing out of the ordinary about the guests that night. Somehow he - indeed "we all" - had a feeling - he could not explain why - that this was not one of their normal happy nights. But there was nothing to put a finger on. Later - it must have been after 1 a.m. - he saw a brief scuffle in the ballroom. He went about his business. He could see no reason for shutting off the alcohol early, as was done.

80. According to both Gilbert-Kent and de Stefano the bar was closed on occasions during the evening when formal events were taking place. They both said that the bar was closed at about 12.15 a.m. Castle said that he was not aware that the bar was shut during the formal occasions. He appeared to accept that the bar had closed early - towards the end of the function.

84. Two letters from the Club to the Geelong police were put in evidence by the plaintiff. The first, of 31 October 1995, referring to the "rather unfortunate incident" which led to "the rather disappointing conclusion to an otherwise successful night organised with such a good intent", is of no consequence, although it may be said to display the unrealistic attitude which the Club even now has to the events of the night. The second letter is of considerably more importance. Written on 23 May 1996, it submits "details of changes the Club has implemented since October 1995, in order to ensure the smooth and trouble-free running of non-members functions". The seven changes include these:

"4. Bar service is generally not available for Debutante Balls. We insist the format of the night to be one where proper meals are served, and drinks are primarily served at the tables. 5. Crowd Controllers are briefed by myself at the start of each Function, and abuse of liquor is not to be tolerated by Bar staff or Crowd Controllers. 6. Crowd Controllers are to be pro-active, not re-active, to issues or incidents that may occur throughout the night."

88. Read literally - perhaps it should not be - this letter, by reason of its reference to "changes", might be said to accept that at the time of this disastrous ball crowd controllers were not briefed by de Stefano at the start of the function, and abuse of liquor was tolerated by bar staff and crowd controllers, and crowd controllers were re-active, not pro-active, to incidents.

92. Two expert witnesses were called, one by the plaintiff and one by the defendant, on the issue of liability. Each had made a report. The report of the plaintiff's expert, Mr Zalewski, was put in evidence. That of the defendant's expert, Mr Cornish, had a less certain fate. It was tendered, and its reception was objected to. The basis of the objection was that it contained all sorts of hearsay and indeed hearsay not appropriated to specific sources. The objection to the reception of the report seems to have been withdrawn and the judge said that he had decided that it was appropriate for the report to be tendered and that he would give it the weight he considered it deserved. It is not entirely clear whether in the end the report was actually received in evidence, there merely being a technical slip whereby it was not allocated an exhibit number, or whether on the other hand it was treated by the judge and the parties as being in limbo - neither in evidence nor excluded. The better view would seem to be the former, that it was received in evidence, although not given an exhibit number, but that this was done on the express recognition by counsel for the defendant that hearsay in it would be ignored except to the extent to which the facts were otherwise proved.

95. While objection was taken by the plaintiff's counsel to the use of hearsay material in Cornish's report, neither side took any other objection to the reception of the opposing expert's report and neither side suggested that the case was not one in which opinion evidence should be received or that the opposing expert had expressed opinions on questions not properly the subject of expert opinion.[1] The appeal has been conducted on the same basis. We shall act on the footing on which the parties have both acted throughout, namely, that, subject to the proof or admission of any necessary facts, both experts were at liberty to express the views which they did in their reports as a matter of expert opinion evidence. We express no opinion on the correctness of this tacit mutual concession. We should add that our decision on the proper outcome of this appeal would be no different whatever view was correct on the admissibility of the opinions expressed by the two experts.

98. They both expressed views on the appropriate ratio of controllers to patrons in a venue of this kind and said that the accepted ratio in Australia was two controllers for the first 100 patrons, followed by one controller for every 100 or part thereof thereafter. This means that, assuming that 413 patrons were present, six controllers should have been employed.

101. Zalewski expressed the opinion that it was wrong to allow the aggressors to remain and that they should have been removed. He said - and one would hardly require an expert on a matter of this kind - that if there was aggression the appropriate person to remove was not the victim but the aggressor. Cornish agreed with that view. The differing opinions expressed by the two men in their reports and oral evidence reflect to a considerable extent the different factual bases on which they acted. Zalewski expressed a number of his opinions on the basis of the description of events given by the plaintiff and Castle. Cornish's opinions were based on the facts as described by Conn, de Stefano, Gilbert-Kent and a controller who was not called (Vincent de Stefano).

104. Cornish said that Castle had been wrong to adopt a "let sleeping dogs lie" approach with regard to Holton and that Castle should have obtained assistance from the other controllers and asked Holton to leave. Near the end of his cross-examination by senior counsel for the plaintiff, Cornish was asked to assume to be correct what might be described as the salient features of the plaintiff's case on the facts. He said that on those assumptions it would have been totally inappropriate for the Club management to leave it to 1 o'clock to warn the police of the situation and that the police should have been called to the venue before 1 a.m.

108. His Honour reviewed the evidence at some length in his reasons for decision. It is plain that he did not accept the evidence of de Stefano, Gilbert-Kent and Conn to the effect that the night was a quiet one. Nothing need be said by us about the principles on which the Court acts in considering whether a judge erred in not accepting evidence, since it is conceded by the appellant that the judge did in fact, and was entitled to, reject the evidence of the three witnesses painting a picture of a quiet night. It is plain that his Honour accepted the evidence of the plaintiff concerning the events of the night. He described Castle as an entirely reliable and straightforward witness. He referred to the entry in the register kept by the Club and accepted the account of the wild brawl given by Connor. We find nothing surprising in all of this. His Honour rejected de Stefano's evidence that he had briefed the crowd controllers. He found that there was a high level of intoxication during the ball and again he was perfectly entitled to make that finding. His Honour found that between midnight and 1 a.m. there was an escalation in the anti-social behaviour which had been bubbling away. Again this finding cannot be criticised having regard to the state of the evidence. His Honour said of Holton, among other things, "He was never evicted from the social occasion. I suspect, given his dominating physicality, those controllers were intimidated by him." Nothing turns on this point, but, despite the use of the word "suspect", we think that this should be viewed as a finding that the controllers probably were intimidated by Holton. His Honour found that the Club had been negligent both in failing to deal properly with aggressors in the course of the night and in failing to notify the police "that the situation at their function was such that two policemen could not conceivably control it."

112. The Club says it owed the plaintiff no duty of care relevant to the harm which befell him - injuries inflicted by a vicious ruffian. It relies on what Dixon, J. said in Smith v. Leurs[2]:

"It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are a source of a duty of this nature."

And the Club relies especially on what was laid down by the High Court in Modbury Triangle Shopping Centre Pty Ltd v. Anzil[3] about the limited circumstances in which there will or may be a duty to take reasonable care to protect a person from the criminal behaviour of another. Those circumstances do not exist in the present case, says the Club. It goes on to raise a point which could not have been put forward in Modbury, saying that it would not be politic to recognise a duty of care owed to the plaintiff in relation to injuries sustained as these were.

118. We think that these submissions are unsound. The facts in this case bear no resemblance to those in Modbury, where the occupier of a shopping centre was held to owe no duty of care to the employee of a video rental store there who was attacked and injured at night by assailants in an unlit car park. The criminals in Modbury were in no sense under the control of the defendant. Its supposed negligence lay in its failure to light the car park, the lights having evidently being turned off at 10 p.m., half an hour before the attack.

121. Here the ruffian Holton could not properly be described as not under the control of the Club. It did in fact fail lamentably to control him, and this is the only sense in which he was not under its control. He was allowed to misbehave, out of control, when he should have been kept under control by the Club, which had invited him onto its premises and allowed him to remain there for the purposes of its business (for present purposes) of conducting social functions on its licensed premises at which it sold liquor to the patrons. The particular function was to begin, with early arrivals, at about 7 p.m. and to end at about 1 a.m. More than 400 patrons were to attend. No doubt exists about the legal right of the Club to eject drunken or disorderly persons: by statute it had the duty to do so[4]. Crowd controllers have for many years been a fact of life in this State. We have already mentioned the legislation which has since 1990 required them to be licensed and required the keeping of a register containing details of incidents calling for the removal of a person. The Club regularly employed crowd controllers and did so on this night. We have already mentioned the expert evidence about the appropriate ratio of controllers to patrons in a venue of this kind.

125. Quite apart from what the expert and other evidence disclosed in this case, it is a matter of common sense and experience that, where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time, there is a danger of drunkenness and violent and other offensive behaviour. There is a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate. What the Club was really doing here was, in the course of its business, creating a potentially dangerous situation on its own premises, as it recognised, even before the night began, by its engagement of five crowd controllers. Crowd controllers are there to control crowds[5]; they are there because of the danger that things will get out of control, notably, one might add, in relation to physical violence. As the regulations already referred to show, one of the functions of the crowd controller - again this is only a matter of common sense and common experience - is to assist in maintaining order by removing disorderly persons from premises. Persons in the position of the Club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty - we are not here concerned with rights of action for breach of a statutory duty - to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises.

128. It is difficult to imagine a greater contrast between the facts of the present case and those of Modbury. The Club concedes that it owed a duty of care to patrons to protect them against attacks by other patrons on the premises and that if the plaintiff in the car park here had been, not a member of the police force, but a patron, then no question would have arisen about the existence of a duty of care in relation to the kind of harm done. In our opinion a duty of care was owed to the plaintiff.

131. The leading judgment in Modbury was delivered by Gleeson, C.J. Having referred, among other authorities, to the dictum of Dixon, J. in Smith v. Leurs already cited, his Honour said this:

"Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions."[6] (Footnotes omitted).

"The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable."[7]

137. The Chief Justice then went on to discuss whether foreseeability and predicability of criminal behaviour could ever exist to such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour, and went on to doubt whether such a result would be reached. His Honour then disposed of the question of duty of care by observing that there was nothing special about the relationship between the occupier and the plaintiff and concluded that the appellant should succeed on the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the plaintiff resulting from the criminal behaviour of third parties on that land. Both Gaudron, J. and Hayne, J. agreed with the reasons given by the Chief Justice, Gaudron, J. agreeing in addition with the remarks of Hayne, J. Kirby, J. dissented. Hayne, J. observed that the duty alleged by the plaintiff must have been a duty to take reasonable steps to hinder or prevent criminal conduct of third persons which would injure persons lawfully on the appellant's premises. This alleged duty was to take reasonable steps to attempt to affect the conduct of persons whom the appellant had no power to control. No such duty should be recognised. Cases of an employer sued in respect of harm done by criminals to employees were based on the capacity of the employer to control the situation by controlling the employee and the system of work. Cases of gaoler and prisoner, or parent and child, were similarly explicable on the basis of power to assert control over a third party. In the instant case the occupier had no ability to control the conduct of the assailants. The principle revealed that there was no duty to control the criminal conduct of others except in very restricted circumstances. Cases where an occupier of land was alleged to have failed to control access to or continued presence on the land should be reserved for future consideration, as should cases where an occupier had a high degree of certainty that harm would follow from lack of action. Callinan, J., having referred to the dictum of Dixon, J. in Smith v. Leurs, observed that there was nothing exceptional about the relationship between the present parties such as to create a special relationship between them. Cases of employer and employee should be put to one side. So should the case of gaoler and prisoner. The appellant owed no relevant duty, since there was nothing special in the circumstances or the nature of the relationship between it and the plaintiff.

141. Modbury was considered by the Court of Appeal of New South Wales in Ashrafi Persian Trading Co Pty Ltd v. Ashrafinia[8], where the plaintiff spent a night at a motel managed by her brothers, sleeping in a ground floor room normally occupied by one of her brothers. While asleep she was hit on the head with an iron bar, wielded by an unknown person outside the building through a gap between an external sliding door and a wall of the room. She sued the family company which was the occupier of the motel and succeeded in the District Court. This judgment was set aside on the ground that the trial judge had erred in holding that the occupier was under a relevant duty of care, and had in any event erred in finding a breech of the alleged duty. The leading judgment is that of Heydon., J.A. His Honour reviewed the judgments in Modbury at some length and a considerable number of other authorities. Then he considered the "relationships" referred to by the High Court in which there was or might be a duty to protect another from the criminal conduct of a third person: employer and employee; school and pupil; bailor and bailee; parent and child; gaoler and prisoner. In all these cases there was an element of control. His Honour went on the observe that there was no closed list of categories of special relationship and that the boundaries of each category were not fixed.

144. Turning to the facts of the instant case, Heydon, J.A. held that no "special relationship" existed between the plaintiff and the occupier of the motel. It was not suggested by the plaintiff that the occupier had failed to control access to or continued presence on the premises, so as to bring the case within the question reserved by Hayne, J. for future consideration. As regards the third possible avenue of success, a high degree of forseeability and predicability, or a high degree of certainty that harm would follow from lack of action, the case failed on the facts.

147. The Club says it owed the plaintiff no duty of care relevant to the harm he suffered. Then it goes on to assert that, because of the special position of the plaintiff as a police officer, it would be contrary to public policy to recognise a duty of care in cases like the present.

150. These submissions must be rejected. Of course the facts in this case bears no resemblance to those in Modbury beyond the common features of an action in negligence against an occupier of land for personal injuries sustained in a criminal attack by a third person. In Modbury the occupier of a shopping centre was under no relevant duty of care to an employee of a video rental store attacked at night by three assailants in the unlit car park. Those three criminals were in no sense under the defendant's control. Its supposed negligence lay in its failure to light the car park, the lights having been turned off shortly before the attack. In the present case Holton was, as we have said, not under the control of the Club only in the sense that it failed in fact to control him.

154. If the present case is to be characterised as one of harm arising from the criminal conduct of a third party - undoubtedly it answers that description in fact - then we think, for reasons we shall give in a moment, that it falls within an exception to the general rule of no duty of care. But it may be seriously questioned whether the case is rightly characterised as one of harm arising from criminal conduct. The other view is that what we have here is harm arising from disorder - a commotion, a human eruption or convulsion or conflagration - not to be analysed in terms of the particular criminal acts which injured the plaintiff but to be viewed more broadly as a state of affairs, and as one created by the Club. On this approach, the plaintiff was injured as a result of that state of affairs, the actual criminal kicks and blows being no more than the particular vehicles of injury. On this analysis, the Club's position, as regards duty of care, might be no different if, instead of being attacked by a trouble-making ruffian, the plaintiff had been unintentionally struck by a peaceable patron defending himself against an assault, or accidentally knocked to the ground by non-violent patrons trying to avoid the melee. We think there is much to be said for this approach; but we need not pursue the question.

158. Each of the majority judgments in Modbury makes it clear that the basis of the "special relationship" exception is, as the Court of Appeal of New South Wales has noted, the existence of "control". Where the defendant is in a position to control the offender, a special relationship may be held to exist. The Club was in a position to control Holton; a special relationship, and prima facie a relevant duty of care, existed. The case is also one of the occupier's failure to control access to or continued presence on the premises, a category reserved by Hayne, J. for future consideration[9]. We need say no more about this category. Nor need we consider whether an exception to the general rule should be held to exist by reason of the degree of foreseeability and predictability of criminal conduct.

161. We have said that here a special relationship, and prima facie a relevant duty of care, existed. The Club contends that it is inexpedient that a duty of care be recognised. The argument here is that police officers have the training and experience, and the duty, to evaluate and deal with situations like that which existed at the premises; that occupiers cannot be expected to make their own evaluation; that the imposition of a duty of care might deter occupiers from sending for the police; and that it would be wrong to impose a duty of care for the protection against criminal conduct of the very persons whose duty it was to enforce law and order.

165. At this point of the argument we directed attention to what has long been known in the United States of America as the fireman's rule, and the appellant invited us to hold that this rule formed part of the common law of this country and governed this case. The rule - recognised in a number of American States - is that, since it is a fireman's business to fight fires:

"he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Probably most fires are attributable to negligence, and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences."[10]

169. The rule has on occasions been applied in the United States to preclude recovery by police officers injured on private property on the ground of negligence in creating the situation requiring their presence where an injury results from a risk inherent in, or foreseeable as a part of, their duties[11]. A number of the American cases concern police officers intentionally injured by third persons[12]. Decisions in the United States tend to be bedevilled by the old distinctions drawn by the law between different classes of visitor. Indeed, the rule seems to have originated in the old rules about the duties of an occupier.

172. Even in States which accepted the fireman's rule and applied it to police officers there might be a possibility of recovery if the plaintiff could show that the occupier had failed to warn of some danger of which the plaintiff was known to be unaware. The existence of such a duty towards a police officer called to quell a disturbance at a party held at the Cowboys Club was recognised in Louisiana.[13] We mention also a decision of the Supreme Court of Arizona[14] on a successful appeal by the widow of a police officer murdered by an armed robber while working as a security guard for a motel. This duty was assigned to him by his precinct and he was equipped with his full police uniform, weapon and radio. The Court held it to be a jury question whether a motel proprietor had in breach of duty failed to warn the officer of the robber's presence. The majority in Walters v. Sloan[15], in reaffirming the existence in California of the fireman's rule, spoke at 612 of "a person who, fully aware of the hazard created by the defendant's negligence, voluntarily confronts the risk for compensation". In the present case the plaintiff complains not only of the Club's continued failure to keep order but also of its failure to warn him, or his superiors, that the situation was quite out of control.

176. But we would not rest our decision on this narrow basis. We do not accept that considerations of policy should lead to the conclusion that, since police officers are employed to keep the peace, they can have no action against one whose negligence leads to a disturbance which they are called upon to quell, being injured as they do so. We see no sound reason in policy for denying recovery to one who can establish negligence in fact simply because he or she is injured in the line of duty. This case raises the question starkly. One asks whether it is fair, whether it is in the public interest, that the plaintiff should be told by this defendant: "For our private profit we created an environment in which disorder and violence were to be expected. We provided five crowd controllers because of this very danger. You cannot complain no matter how poorly we discharged our function of maintaining order, no matter what risk we exposed you to. You were paid by the State to pull our chestnuts out of the fire. We regret your injuries, but responsible we are not."

179. Our concern is with whether the Club owed a duty of care to the plaintiff in respect of this harm. We think that it did. The position of firemen does not directly arise for consideration. The House of Lords[16] has emphatically rejected the fireman's rule, saying that it has no place in English law and preferring the dissenting judgment of Tobriner, A.C.J. in the Californian case of Walters v. Sloan[17], where the rule was reaffirmed by five members of a court of six. We too find the reasoning of Tobriner, A.C.J. more persuasive. The Californian decision is of particular interest because it concerned a police officer, injured after being summoned to a disorderly party. Sixteen-year-old Helen Sloan, with her parents' approval, hosted a party for 200 people at their home, many of them minors. She provided liquor, again with the approval of her parents, and drugs were taken. Providing liquor to the minors at the party was unlawful. The party got out of hand and the police were summoned, the plaintiff being the officer attending. When he tried to arrest a number of minors for being drunk in public, they attacked and injured him. The Supreme Court of California, in banc, by majority denied recovery in reliance on "the venerable fireman's rule", as it was termed. It should be noted that the rule would evidently not have been applied if the negligence alleged had been that the parents, knowing that a single officer would attend or had just attended, and that the party was too disorderly to be controlled by one officer, had failed to warn of the danger. For in such a case the negligence would be different from the negligence which occasioned summoning the police[18] and the officer would not be fully aware of the hazard created by the defendant's negligence[19].

183. Little need be said about this, just as the Club's counsel said little about it, being content really to rely on the written outline of argument, which will serve to record the submissions made. Having considered them, we see no reason whatever to doubt the finding of breach of duty. The Club's case on appeal faces time and again the difficulty of the marked conflict of evidence, the improbability of its version of events and the existence of a number of salient and ineluctable facts. It is entirely understandable that the judge resolved the conflict of evidence in the plaintiff's favour. We have earlier in these reasons reviewed the evidence at length. The attack on the finding of negligence must fail.

187. Next, the Club challenges the judge's finding on the issue of causation. Again, little need be said about this. His Honour referred to some of the authorities on causation and it is not suggested that he erred with regard to the law. The suggestion is simply that he erred on the question of fact. We think it was well open to the judge to find a causal connection between the plaintiff's injuries and the Club's negligence in each of its aspects - failure to deal properly with the disorder and failure to warn of the need for more than two police officers. No argument of substance has in our opinion been advanced by the Club on this point.

191. We now turn to consider the Club's only challenge to his Honour's assessment of damages, the assessment of the plaintiff's future economic loss at $310,000. The judge said:

"Future economic loss, having regard to a senior constable's current earnings of $636.64 plus 8% superannuation of the gross salary produces a figure of $707.40. I have had regard to the applicable multiplier with respect to 13 years' further service. That, of course, does not take account of what might have happened if he had been promoted within the force at some time in the future. In all the circumstances I believe it is just and reasonable to provide for $310,000.00 for future economic loss."

So it is seen that the judge arrived at the ultimate sum by applying to $707.40 the multiplier of 563[20] to produce the gross figure for loss of future earnings of $398,266. He then discounted that sum to produce $310,000, which he regarded as just and reasonable compensation for the plaintiff's future economic loss. It was submitted that his Honour made two errors:

(a) In his calculations, he used the gross (i.e. pre-tax) weekly earnings of a senior constable whereas he should have used net (i.e. after tax) weekly earnings.

(b) In assessing what discount should be applied to the gross future economic loss of $398,266 he did not sufficiently take into account the plaintiff's prospects of gaining some form of remunerative employment in the future.

198. The first point has no substance. It is obvious from an arithmetical analysis of the figures used in calculating the future economic loss that the amount of $636.64 is an after tax, and thus a "net", figure. The amount added by his Honour to $636.64, namely, 8% of what his Honour called "the gross salary", was $70.76. It follows that the salary to which the 8% was applied was $884.50. That represents, for the purposes of the calculations undertaken by the judge, a gross (i.e. pre-tax) weekly salary of a senior constable. A tax rate of approximately 28% reduces that salary to $636.64. It follows, therefore, that his Honour correctly used the net weekly earnings of a senior constable for the purpose of his calculations.

201. The Club's main argument in support of its claim that his Honour made the second error assumes that he scaled down what would otherwise have been the plaintiff's future economic loss by approximately 20% in order to reach the figure of $310,000. It was then said that, since the generally accepted discount for contingencies in respect of an assessment of future economic loss was of the order of 15%[21], his Honour must have allowed only some 5% for the prospect of a return to remunerative employment. The Club submitted that, in the light of the evidence that the plaintiff could do work other than that for which he was trained, this discount was patently too low and that therefore the determination as to future economic loss could not stand.

204. We do not accept that his Honour made this mistake. First, it is plain that the percentage by which the judge scaled down the respondent's gross future economic loss was a little over 22%, not 20% as is claimed by the Club. Next, there is no basis for assuming that his Honour applied a 15% discount for vicissitudes of life. Whilst it may be accepted as a rule of thumb that the discount for such contingencies in personal injury cases is usually of the order of 15%, each case depends on its own facts. In assessing the extent to which gross economic loss was to be discounted, his Honour no doubt took into account, as is required, a range of possible future occurrences both adverse and favourable to the plaintiff - Arthur Robinson (Grafton) Pty. Ltd. v. Carter[22]; Bresatz v. Przibilla[23]; City of Brimbank v. Halilovic[24]. So it would have been appropriate to have regard to the possibility that the plaintiff might have attained the rank of sergeant before he reached the age of 52 and thus a corresponding increase in his average weekly earnings.[25] That his Honour had the matter present to his mind when making the assessment is made plain in the passage from his reasons already cited. He did not take the prospect of the plaintiff's reaching the rank of sergeant into account in the context of the multiplier, but he otherwise had regard to it when making the assessment. Similarly, his Honour could have taken into account that, had the plaintiff not attained the rank of sergeant before the age of 52, he might have continued to work beyond that age. It was well open to the judge to apply a discount for contingencies less than 15%.

207. At one stage, the appellant argued that it was speculative to suggest that the plaintiff had little or no little prospect of returning to work, given the evidence that he could do other work and given the lack of specific findings on this issue. It was claimed that, to the extent that speculation was called for, the situation was like that in Victorian Stevedoring Co. v. Farlow[26] (although in that case there was no evidence that the plaintiff would suffer future economic loss by reason of the injury). This argument must be rejected. First, a judge's assessment of an appropriate amount for contingencies is founded on hypothetical evaluations and does not involve precise calculations; at best it is a matter of impression - City of Brimbank v. Halilovic[27]; Wynn v. New South Wales Insurance Ministerial Corporation[28]; Rosstown Holdings Pty. Ltd. v. Mallinson[29]. Next, unlike the situation in Farlow, there was evidence before the judge of the extent of the likely future economic loss and in particular, of the unlikelihood of a return to work. It was well open to his Honour to conclude, without making findings in quantitative terms, that the prospect of the plaintiff's returning to remunerative employment was very slight.

210. The Club then argued that, even if it were accepted that the plaintiff would never be able to work as a policeman or in any other position for which he had been trained, the evidence showed that he could participate in other remunerative activities, and that he should have been treated as having lost about 60% of his earning capacity.

213. The evidence did disclose that the plaintiff had made attempts to generate income. But it showed that his efforts had met with no commercial success. For instance, the evidence showed that the video delivery business did not generate a profit; at best, its income barely met the outgoings and, at the time of trial, the plaintiff was considering closing it down. Similarly, the evidence was that, apart from the occasional massage for a couple of hours each fortnight, that activity also did not produce any income. Likewise, although the plaintiff had sought work in training women in first aid and self-defence, this proposed income generating activity met with no success.

216. As to the relevant medical evidence, the plaintiff's treating psychiatrist, Dr. van Ammers, considered that he suffered a "very significant [post-traumatic stress] disorder" and that overall his prognosis was not good. He accepted that, having regard to the video hire business, the plaintiff was capable of doing some form of work, but said that he could do that only as long as it did not trigger panic attacks. Dr. van Ammers added that there were many triggers in the plaintiff's life that reminded him of the trauma he had experienced and that the actual possibility of what he could do by way of jobs was quite limited. Dr. Moore, a consulting psychiatrist who had examined the plaintiff on a number of occasions, also considered that the plaintiff was suffering "badly" from chronic post-traumatic stress disorder and that he was likely to remain in that condition. He considered that the video delivery business and like activities were essentially of therapeutic benefit in that they helped the plaintiff get "over his front gate" in the sense that they gave him an escape from his cocoon house environment. The plaintiff was able to cope with such activities, said Dr. Moore, because he engaged in them at his own pace and not in a high pressure situation. Under cross-examination, he effectively said that, because the plaintiff could not cope with stress, he did not have the capacity to maintain involvement in the workplace, which was nearly always subject to a variety of stresses.

219. It was open to his Honour to conclude that the prospects of the plaintiff's returning to remunerative work were minimal. The attack on his Honour's assessment of future economic loss at $310,000 fails.

[1] The Club's counsel had objected to Castle's giving any evidence about the adequacy of the number of controllers on the ground that he was not an expert. Zalewski himself was the next witness and no objection was taken to his evidence.

[2] [1945] HCA 27; (1945) 70 C.L.R. 256 at 262.

[3] [2000] HCA 61; (2000) 75 ALJR 164.

[4] Liquor Control Act 1987, s.122(1)(e).

[5] Compare the definition of "Crowd Controller" in s.3 of the Private Agents (Amendment) Act 1990: "any person who is paid principally to maintain order at any public place".

[8] [2001] NSWCA 243.

[10] Krauth v. Geller 157 A. 2d 129, 130-131 (1960), a decision of the Supreme Court of New Jersey.

[11] Richard C. Tinney. `Liability of Owner or Occupant of Premises to Police Officer Coming Thereon in Discharge of Officer's Duty', 30 ALR 4th 81.

[13] Holdsworth v. Renegades of Louisiana Inc. 516 So.2d 1299 (1987).

[14] Robertson v. Sixpence Inns of America Inc. 789 P.2d 1040 (1990).

[15] 571 P. 2d 609 (1977)

[16] Ogwo v. Taylor [1987] UKHL 7; [1988] 1 AC 431 at 448-9; compare White v. Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 A.C. 455 at 511.

[17] 571 P.2d 609 (1977).

[20] The plaintiff's evidence was that he had planned to retire from the police force at the age of 52, which was approximately 13 years after the trial.

[21] This was not challenged by the plaintiff on the hearing of the appeal.

[22] [1968] HCA 9; (1968) 122 C.L.R. 649 at 659 per Barwick, C.J.

[23] [1962] HCA 54; (1962) 108 C.L.R. 541 at 543-544 per Windeyer, J.

[24] [2000] VSCA 12; (2000) Aust Torts Reports 81-549 at [26] per the President.

[25] It was his case at trial that he had studied for the sergeant's exams for about five years before being injured and that his expectation was that he would have gained that rank, and possibly that of senior sergeant, before reaching the age of 52, when he intended to retire. This was not an issue on appeal, nor was the fact that the earnings of a sergeant were materially higher than those of a senior constable.

[26] [1963] VicRp 80; [1963] V.R. 594.

[27] [2000] VSCA 12; (2000) Aust Torts Reports 81-549 at [26] per the President.

[28] [1995] HCA 53; (1995) 184 C.L.R. 485 at 499 per Dawson, Toohey, Gaudron and Gummow, JJ.

[29] [2000] VSCA 166; (2000) 2 V.R. 299 at 310 per Callaway, J.A.