Her Honour also noted that he appeared "to be of an Islander background" although the relevance of this observation was not explained.
45 If her Honour were accepting the evidence of the plaintiff that no security guard attended to the injured man, that would have required rejection of Ms van Huyssen's evidence as well as that of Mr Lafaele: that she did not expressly do, and the plaintiff did not contend on the appeal that no security guard went to the injured man. In relation to the removal of the assailant, the plaintiff gave no evidence at all. Her Honour appears to have accepted Mr Lafaele's evidence in this regard, by noting his failure to ensure the effective removal and possibly his failure to respond to the second altercation with sufficient expedition, being criticisms which may have involved an element of internal inconsistency.
46 Being inarticulate in English in a courtroom environment, would not itself demonstrate lack of credibility on the part of a security guard. Nor would confusion, in giving evidence of the kind of incident which was in issue, almost exactly four years after the event. Counsel for the plaintiff was invited to identify aspects of "prevarication", but only two were apparent. One was in relation to whether Mr Lafaele escorted the assailant "outside" the hotel, or whether he turned back before he and the assailant went through the door. Mr Lafaele was reasonably firm in his view that he did not go through the door himself, and does not appear to have prevaricated, despite being pressed in cross-examination. The second element of possible prevarication occurred when he was asked whether he checked the patrons "for signs of intoxication" and said that he did, "sort of": Tcpt, 23 May 2006, p 16. Given the question, the qualified answer seems entirely reasonable. He was then asked if he had "monitored" the patrons who were involved in the second fight "for signs of intoxication earlier in the evening". He said he had not and was asked why not. When the concept of "monitoring" them was expanded to the question "Did you look at them, pass by them and check them?" he said that he did: Tcpt, pp 16-17.
47 Appearances undoubtedly can tell a very different story from a colourless transcript. Her Honour was entitled to find that Mr Lafaele was not "entirely truthful". However, she then accepted some aspects of his evidence, but not others. If in some respects her Honour found him to be untruthful, those respects should have been identified; none were.
48 Her Honour stated (Judgment, p 16) that there were "supposedly" four security guards at the hotel. At least for the purposes of the appeal, this was not a supposition but an accepted fact: the same appears to have been true at the trial. She also concluded that "the security guards on duty appear to have been little concerned by the initial serious assault": Judgment, p 16. However, if there were a breach of duty on the part of the security guards, it appears to have been a failure to foresee that, because an Islander had pointed out the first assailant being a 'white Australian', the white Australians in the bar might take offence at his conduct which, in a volatile situation, might give rise to a second fight. However, her Honour made no finding as to what was the immediate cause of the second fight. Indeed, if, as noted above, she accepted evidence that the first assailant was an Islander, and that the person who identified him was an Islander, the reason for an outbreak of racial tension is obscure. The omission to make an express finding in this regard is a matter of some importance, because Mr Lafaele and Mr Levao were only absent from the area where the patrons were milling around in the front bar before the second altercation commenced for a brief period identified by Mr Lafaele as six or seven seconds (Tcpt, 23 May 2006, pp 12-13 - though wrongly referred to by her Honour as the total time between the two fights, and hence implausible: Judgment, pp 5-6). Further, her Honour made no finding as to where the third security guard was at that time, nor did she expressly reject Mr Lafaele's evidence that he was in the vicinity of the front bar, namely in the area with the pool table. Her Honour's conclusion in relation to this aspect was (at p 17):
"It seems to me security should have been aware it was likely a further fight may erupt."
49 Absent an express finding that the assailant being escorted out was not an Islander, this bland conclusion bears the hallmark of reasoning from hindsight. Further, if the injured person in the first fight was not, but the assailant was, of Islander extraction, and the assailant was pointed out by another Islander, it is by no means clear why a fracas based on ethnic tensions should have been anticipated and no explanation was provided.
50 Accepting for present purposes that the "lackadaisical approach to security" constituted a failure to take reasonable care in preventing the second fight in the front bar, the next question was to identify what steps the security guards should have taken in order to fulfil that duty. Until that finding is made, it is not possible to know whether the breach of duty had any causal connection with the plaintiff's injury. To be satisfied as to causation, the exercise of reasonable care must have been effective to prevent the second fight, or to have contained it to an area away from the plaintiff. Unfortunately, the trial judge did not address, let alone answer, these questions. Without taking those further steps, the findings with respect to liability of Security cannot be upheld.
51 Dealing with the matter chronologically, the first relevant event which was causally connected to the plaintiff's injury was the infliction of the injury on the man in the first fight. However, there are no factual findings which would support the conclusion that Security failed to take reasonable care to prevent the first fight. The second event may have been the failure by the security guards to provide proper attention to the injured man, thereby causing the plaintiff to step in to provide necessary assistance. While such a conclusion may have been open as a matter of pleading and in theory, an affirmative finding in those terms was not made by the trial judge. Further, to make such a finding would have required the rejection of the evidence of Ms van Huyssen to the effect that a security guard was seeking to attend to the injured man when the plaintiff intervened.
52 A third possibility is that at least one security guard should have stayed with the injured man and the plaintiff, to protect them in case of further trouble. That in turn would have required consideration of whether the assailant should have been identified and his removal attempted, whether that required one or two guards and where the third guard was at that time. There were no findings in relation to these issues, nor is it clear on the evidence what finding should be made, especially if doubt is cast upon the evidence of Mr Lafaele.
53 Not only are these questions not capable of ready answer by this Court, but the more plausible answers immediately give rise to additional questions in relation to causation. Absent a finding that Mr Lafaele ever actually went outside when escorting the assailant to the door, it would seem that both Mr Lafaele and Mr Levao were in the front bar at all times between the two fights. No doubt their attention was focused on the man they were turning out, but the fact of their presence, some 12 metres from the injured man and the plaintiff, failed to deter those who became involved in the fracas. It is by no means clear that their presence in some other part of the front bar would have constituted a deterrent or that they could have prevented one or more men being pushed over so as to fall on the plaintiff. Secondly, it is by no means clear that the decision to remove the assailant demonstrated a lack of reasonable care for the patrons in the bar, or even a mistake of judgment. If the injured man had friends in the bar, removal of his assailant would seem to be an entirely reasonable step in diminishing the chance of further fighting.
54 In the circumstances, without determining that there was no breach of duty on the part of Security, its liability cannot be upheld without a finding as to causation, which is not open on the findings of fact made by the trial judge. Nor is it possible for this Court, not having heard the witnesses, to make appropriate findings.