COLLINGWOOD HOTEL PTY LTD v O'REILLY; NIGHT KNOWLEDGE SECURITY PTY LTD v... [2007] NSWCA 155 | Case summary | Zoe

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COLLINGWOOD HOTEL PTY LTD v O'REILLY; NIGHT KNOWLEDGE SECURITY PTY LTD v O'REILLY

[2007] NSWCA 155

Court of Appeal (NSW)|2007-04-30|Before: Tobias JA, Basten JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2007-04-30

Before

Tobias JA, Basten JA

Source

Original judgment source is linked above.

Judgment (73 paragraphs)

[1]

CITATION: COLLINGWOOD HOTEL PTY LTD v O'REILLY; NIGHT KNOWLEDGE SECURITY PTY LTD v O'REILLY [2007] NSWCA 155

[2]

JUDGMENT OF: Tobias JA at 1; Basten JA at 15; Handley AJA at 85

[3]

DECISION: In relation to matter 40333 of 2006 (the appeal by Collingwood Hotel Pty Ltd and Rex Porter); (1) Allow the appeal and set aside the judgment and orders of the District Court given and made on 2 June 2006; (2) In lieu thereof; (a) give judgment for the first and second defendants against the plaintiff; (b) order the plaintiff to pay the costs of the first and second defendants of the trial, and; (c) dismiss the cross-claim of the first and second defendants, as against the third defendant, with no order as to costs; (3) Order the First Respondent (Ms O'Reilly) to pay the Appellants' costs of the appeal, but make no order as to the costs of the Second Respondent (Night Knowledge Security Pty Ltd) of the appeal; (4) Grant the First Respondent a certificate under the Suitors' Fund Act 1951 (NSW).; In relation to matter 40363 of 2006 (the appeal by Night Knowledge Security Pty Ltd); (1) Allow the appeal and set aside the judgment and orders of the District Court given and made on 2 June 2006; (2) In lieu thereof; (a) give judgment for the third defendant against the plaintiff; (b) order the plaintiff to pay the costs of the third defendant of the trial, and; (c) dismiss the cross-claim of the third defendant, as against the first and second defendants, with no order as to costs; (3) Order the First Respondent (Ms O'Reilly) to pay the Appellant's costs of the appeal, but make no order as to the costs of the Second Respondent (Collingwood Hotel Pty Ltd) of the appeal; (4) Grant the First Respondent a certificate under the Suitors' Fund Act 1951 (NSW).

[36]

(l) Given the time of the events in question it would not be difficult for the security guards and Mr Penny to be aware that many patrons were well and truly intoxicated. This is confirmed by Ms van Huyssen's evidence that she had refused alcohol service to a number of patrons before the first fight: Black 116J-N. 4 In my opinion the evidence referred to above, if accepted, was capable of supporting a finding that first, it was reasonably foreseeable to both Messrs. Lafaele and Levao as well as Mr Penny that given the first fight which occurred along racial lines, the obviously serious injuries to a white male and the identification in all probability by an Islander of, and the proposal to remove, the assailant, there was a risk that unless they took steps to separate the white males from the Islanders a further fight would erupt. Second, a reasonable response to that risk was for Mr Penny to ensure that at least Mr Levao and Hurricane were present in the public bar when the assailant was being removed by Mr Lafaele and that they took steps to separate the two groups and/or quickly remove one group from the bar. Third, the security guards even without Mr Penny's instruction ought, as a reasonable response to the identified risk, to have taken such steps. 5 As to causation, the present case is one involving a potential breach of duty by the failure to take certain positive steps to prevent a further fight erupting in close proximity to where the first respondent was tending to the injured man. The area of the bar in question was not large and, as already observed, the two groups of men were milling around the fallen man. As Basten JA points out in [77] of his judgment, proof of causation may be inferred from indirect evidence and may be inferred more readily in some circumstances than in others. 6 If the relevant breach of duty is as I have surmised but steps had been taken by two of the security guards either at the direction of Mr Penny or on their own initiative to separate and control the two groups of patrons, it would in my opinion be open to a judge to infer and to find on the balance of probabilities, that the second fight would not have erupted and, therefore, the first respondent would not have been injured in the way she was. 7 In my opinion there should be a new trial with respect to both appellants. 8 The next question is whether that new trial should be confined to the issue of liability. The primary judge determined damages in the sum of $166,524.38 and, ultimately, found in favour of each of the Hotel and Security on their respective cross-claims against each other for contribution, determining that each was 50% responsible for the first respondent's injuries. 9 On the appeal the appellants challenged the primary judge's findings with respect to past and future economic loss and, in particular, her allowance of $200 per week for past economic loss for a period of 44 weeks and $150 per week for future loss. 10 In submissions, the first respondent's employment history was analysed by both sides, the appellants submitting that the figures of $200 per week for past loss and $150 per week for future loss could not be justified by the historical earnings of the first respondent as revealed by the documentary evidence tendered on that issue. It was submitted that the amounts adopted by her Honour were therefore excessive. 11 In my opinion, the adoption by the primary judge of the amount of $200 per week up to trial and $150 per week in the future was open to her. There was evidence that indicated that the first respondent had the capacity to earn on occasions up to $1000 per week which included cash amounts not disclosed for taxation purposes. Although the appellants complained that the first respondent called no corroborative evidence in relation to those cash earnings, that fact did not mandate that her Honour to ignore them or to reject as unreliable the first respondent's evidence with respect to their quantum. 12 It is true that since the accident the first respondent had moved to Tasmania and intended to open a coffee shop there and that it was also her intention to remain there as the pace of life was slower and more suited to her ability to cope with the traumas and dramas she had recently experienced in her life including, but certainly not confined to, the subject accident. 13 Notwithstanding these factors, in my view the amounts adopted by her Honour with respect to pre and post trial loss of earning capacity, although perhaps generous, did not fall outside the range which it was open to her to accept. I would therefore reject the appellant's challenge to the primary judge's assessment of damages which should not, therefore, be re-litigated in any new trial. The same observation cannot be applied to the cross-claims for contribution between the appellants, which fall within the scope of a new trial on liability. 14 I would therefore propose the following orders:

[48]

(6) The second and third respondents to bear their own costs of the appeal. 15 BASTEN JA: On the night of 30-31 May 2002, Ms Vanessa O'Reilly (the plaintiff) spent some hours at the Collingwood Hotel in Liverpool south-west of Sydney. At about 12.45am, an incident occurred involving at least two men, as a result of which one man was knocked to the floor and was bleeding from his head. Security guards identified and removed the assailant, and the plaintiff, who had nursing training, attended to the injured man. Just as the first assailant was being ejected from the hotel, a further fracas developed and one or more patrons were knocked over, falling heavily across the plaintiff's back. She suffered a disc lesion in her lower back. 16 On 24 September 2004, the plaintiff commenced proceedings in the District Court for damages, alleging negligence on the part of the occupier of the hotel, Collingwood Hotel Pty Ltd ("the Hotel"), Mr Rex Porter, the licensee of the hotel ("the Licensee") and Night Knowledge Security Pty Ltd ("Security"), which provided four security guards who were working at the hotel on the night in question. The plaintiff was successful in her claim against all three defendants, and obtained a judgment in an amount of $166,524.38. Of that amount, almost $100,000 was on account of future economic loss, flowing from her diminished earning capacity. 17 The present proceedings involve two appeals, one brought by Security and the other by the Hotel and the Licensee. Each Appellant disputed his or its liability and also challenged the award of damages, on the basis that the calculation for future economic loss was excessive. The challenge in relation to liability involved two limbs. First, there was a challenge to the findings by the trial judge that the Appellants breached their respective duties to the plaintiff in relation to their management of security in the hotel on the night in question; secondly, there was a challenge based on her Honour's failure to make a specific finding as to any causal connection between the breaches which she identified and the injury to the plaintiff.

[51]

Legal principles 21 The Appellants accepted that the relevant principles governing their potential liability in negligence for the deliberate acts of third parties were those explained by this Court in Wagstaff v Haslam and Anor [2007] NSWCA 28 and in Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, applying, amongst other cases, Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 (FCAFC). These cases held that someone in the position of a hotel manager or licensee may be liable for injury to a patron caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity, and indeed the statutory obligation, of the hotel manager or licensee to control conduct on licensed premises, pursuant to ss 103 and 125 of the Liquor Act 1982 (NSW). These provisions not only permit the licensee to "turn out, or cause to be turned out" any person who is intoxicated, and to use reasonable force to that end, but also impose an obligation on a licensee not to permit intoxication on licensed premises, an offence which is deemed to be committed by the presence of a person who is intoxicated on the premises, unless the licensee has asked the person to leave the premises, sought police assistance to remove the person and refused to serve the person alcohol: s 125. As will be seen shortly, there was a complaint that the relevant employee of the hotel believed that a number of patrons were sufficiently affected by alcohol to justify refusal of service, yet no steps were taken to eject those persons from the premises, until the relevant outbreaks of violence. However, it should be emphasised there is no statutory cause of action for breach of the Liquor Act, if such a breach occurred. Rather, the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm: see, generally, Wagstaff [2007] NSWCA 28 at [28]-[37]. 22 So far as Security was concerned, it was neither the licensee, nor aptly described as the hotel manager. Rather, it was contracted to provide services which included giving effect to the Licensee's obligation not to permit intoxication, or indecent, violent or quarrelsome conduct on the licensed premises: Liquor Act s 125(1)(b). 23 Security did not contest the proposition that it owed a duty of care to patrons in the hotel, nor that there was a foreseeable risk of harm to patrons if there were an outbreak of violent behaviour. Accordingly, Security, through its employees, had a duty, not to ensure the safety of patrons (as was pleaded), but to take reasonable measures to protect them from foreseeable harm. Those measures included, but were not limited to, taking steps to "turn out" patrons from whom violent conduct ought reasonably to have been anticipated. These principles were not in doubt: the issues in the case turned largely on their application in the circumstances revealed by the evidence, subject to one qualification with respect to the proper approach to causation which is more conveniently discussed after the facts have been considered.

[52]

Evidence: overview 24 The trial judge was required to determine the events of the evening by reference to the evidence of three primary witnesses. These were the plaintiff herself, Ms Amy van Huyssen, a young woman working behind the bar, and Mr Paulo Lafaele, one of the security guards. The accounts given by these witnesses reflected their differing perspectives on the events as they unfolded. 25 There were at the time four security guards on duty at the hotel, each in uniform. One, it appears, was on duty in the car park and appears not to have been involved in the activities in the front (or public) bar which preceded the injury to the plaintiff. A second security guard, Mr Suameli Levao, who appears to have been the responsible officer of Security on the night (Tcpt, 23 May 2006, p 16), and who was also said to be present in the public bar at the time of the fracas, did not give evidence, because he could not be located. However, Mr Levao prepared a written report for the director of Security, Mr Dione Blissett, which was included in a letter written by Mr Blissett to the Hotel. Somewhat curiously, this document was tendered by the plaintiff in reply, without objection. 26 Apart from Ms van Huyssen, there were three other employees of the Hotel who played some part in the events of the evening, but were not called. Seemingly, the most junior was Ms Emma Salmon, who was also working in the public bar and witnessed the first assault. Her evidence consisted of a brief handwritten statement, also tendered by the plaintiff in reply, without objection. 27 In addition to the two bar attendants, there was a third employee, Mr Chris Dower, who appears to have been in what was variously described as "the casino" and the "gaming lounge" at the time of the first incident, but who entered the public bar when he heard someone screaming "call a bloody ambulance". He returned to the gaming lounge before the second fracas broke out. His statement was tendered by the plaintiff, at the close of her case. 28 Finally, the person who appears to have been hotel manager on the night in question, identified as Mr Justin Penny, was upstairs at the time of the events in question but, according to Ms van Huyssen, came downstairs and spoke with her between the two fights: Tcpt, 23 May 2006, p 33. Ms Genevieve Porter, who agreed that she, together with her husband, was an 'owner' of the Collingwood Hotel stated that both Mr Dower and Mr Penny were still working for her at the date of the trial. Mr Blissett, the director of Security, also continued at the date of the trial to provide security services at the hotel, although it appears that Security itself may have been in liquidation and the services provided through another company. 29 The plaintiff's evidence, which appears not to have been in dispute, was that she attended the hotel on the evening in question, to participate in karaoke, which was conducted from 7.30pm until 11 or 11.30pm in the lounge bar of the hotel. After that concluded, she, together with other patrons in the lounge bar, moved to the front bar as the lounge bar was closed. 30 The layout of the front bar, where the incidents occurred, remained somewhat vague in the evidence. No plan was in evidence and the only two photographs tendered failed to provide a clear picture of the layout. As already noted, the casino, or gaming room, referred to by Mr Dower appeared to be separate from the front bar. On one side of the front bar, however, there was an area known as the "the TAB window". Next to the TAB window was a door which led out to a car park. According to Mr Lafaele, there was a door between the front bar and the gaming room, where the poker machines were situated: Tcpt, 23 May 2006, p 25. Mr Lafaele was in the gaming room at the time of the first fight, and came through the door into the front bar when he heard sounds of the disturbance. He said that Mr Levao (known in the evidence as "Sua") was standing at the door at that time, looking into the public bar: Tcpt, p 26. A third security guard, known only as "Hurricane", was at the pool table in the public bar area: Tcpt, p 26. 31 The general issue was whether either the security guards or the hotel staff should have taken greater precautions because of an apparent risk of violence of the kind which in fact materialised. 32 That question may be addressed at different levels of generality. At a higher level, the existence of ethnic tensions amongst patrons of the Hotel was well understood by Ms Porter and, it would seem, by both hotel staff and security guards, all of whom were conscious of the mix of Islanders and other men identified as "white Australian males". That factor, taken in the abstract, may have given rise to a duty to employ security guards. However, that duty was satisfied by the presence at the Hotel of four security guards on the night in question, a level of staffing which was not challenged as involving any breach of duty by the Hotel. 33 The fact that tensions might more readily be expressed in violent conduct when patrons were inebriated is another factor operating at a reasonably high level of generality. There was no suggestion that levels of intoxication were any higher on the night of the plaintiff's injury than on any other night. 34 At a level of greater particularity, in accordance with the principles established in Chordas, there may have been some actual appreciation on the part of hotel staff or security guards of a risk of violent conduct or there may have been indications which should have given rise to such an appreciation. However, those questions can only usefully be answered by references to the circumstances revealed in the evidence, as they arose at particular times.

[53]

Findings of trial judge: Security 35 Her Honour accepted that there were two fights in the hotel that evening, the first resulting in a "white Australian male" being knocked to the ground. Mr Levao was able to identify his assailant as a man they apparently knew by the name "Rhyan". Despite Mr Lafaele's evidence of where Mr Levao was at the time of the fight, neither seems to have witnessed the fight, but the assailant was identified by someone else in the bar. Mr Lafaele, who knew him, identified him as a white male, but her Honour appears to have accepted other evidence that he was an Islander: Judgment, p12. Broadly speaking, there appear to have been two groups of men in the front bar that evening who were identified in the evidence as 'white Australians' and 'Islanders', respectively. There was evidence of ethnic tensions amongst the patrons, described by Ms Porter as always "bubbling around between the Australians and the Islanders", as well as other nationalities: Tcpt, 22 May 2006, p 68. Her Honour concluded that there was no clear evidence as to what caused the first fight and that it appeared "to have erupted and finished within a fairly short space of time": Judgment, p 12. 36 Her Honour accepted the evidence of the plaintiff that there was no security guard in the front bar at the time of the first fight. However, as she was unable to determine the cause of the fight, and noted its brief duration, it cannot be inferred that the evidence demonstrated any lack of reasonable care on the part of the defendants in relation to the occurrence of the first fight. Nor did her Honour so find. 37 Her Honour also accepted that Mr Lafaele came into the bar at the time the man was lying on the floor. She did not make a finding in relation to Mr Levao, although Mr Lafaele's evidence was that Mr Levao was with him when he entered the bar and knelt down beside the injured man on the floor: Tcpt, 23 May 2006, p15, Judgment p5. 38 Her Honour spent some little time in her judgment (some 10 out of 17 pages dealing with liability) summarising the evidence of the various witnesses, without making express findings. At the point at which she commenced to make findings, after referring to the matters set out above, she stated (Judgment, p12): "The plaintiff said the guard did not appear to be greatly concerned there was someone lying bleeding on the floor and from Mr Lafaele's evidence it appears he decided to sort out what had happened by making inquiries of other patrons."

[57]

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.

[58]

Findings of trial judge: the Hotel and Licensee 55 The second appeal concerned the Hotel and the Licensee, whose responsibilities were treated by the parties as the same. Thus, although her Honour made no finding at all with respect to the Licensee, until she came to the question of apportionment, no point is taken in that regard. 56 So far as the staff of the Hotel were concerned, her Honour's finding that the cause of the first fight was unknown would appear to exonerate the Hotel from any liability which might arise from the consequence to which it gave rise, namely the presence of the injured man on the floor, requiring attention which was provided by the plaintiff. It would seem that, once the assault occurred, the hotel staff took appropriate steps. Ms van Huyssen gave evidence that she went "to get some gloves and stuff to try and help him", but could not find any gloves: Tcpt, 23 May 2006, p 30. Ms van Huyssen stated that she asked Mr Dower to call an ambulance "because he was in the cash box and there was a phone in there": Tcpt, 23 May 2006, p 30. Mr Dower's statement included the following passage: "I heard someone screaming call a bloody ambulance. I went in to see what the problem was. I seen a male out cold on the floor in front of the TAB. I then ran back around behind the bar to call an ambulance. After I called the ambulance I was asked to grab a cloth for the lady who was seeing to the injured man." 57 Ms Emma Salmon, in her written statement, stated that Ms van Huyssen told her to call for an ambulance. The plaintiff herself, whilst she was attending to the injured man said that somebody, whom she could not identify, had told her that "the police and ambulance have been called". That appears to have been before the second fight erupted, although it also appears that the police were not called until after the second fight. 58 Although her Honour made no finding as to whether an ambulance was called, by whom and when, it seems to be beyond dispute that an ambulance was called by one of the hotel employees before the second fight erupted. An ambulance service "Patient Health Care Record" was tendered in relation to the plaintiff, indicating that the ambulance had been booked at 1.38am. However, whether it was the ambulance called with respect to the injured man is unclear. 59 In relation to the police, her Honour noted that after the second fight both groups of patrons were turned out of the hotel with the result that something she described as "almost a full-scale riot" took place in the car park, with a number of angry patrons attacking the hotel and breaking glass and a door, so that there was "a need for police to be called": Judgment, p 17. Her Honour also referred to a report tendered on behalf of the plaintiff from Mr Richard W. Jennings, a security risk consultant. She noted Mr Jennings' views that Security should have attended to the injured man and removed the offending party from the hotel, "if that ejectment was deemed appropriate". Her Honour continued (p 14): "He also thought that if it appeared there was potential for a second disturbance or indeed as soon a[s] such occurred or became apparent then police should have been called. This seem[s] reasonable." 60 One would infer from these remarks that her Honour was satisfied that police were not called before the second fight started. Nor did she expressly find that they should have been called. Accordingly, there was no finding adverse to the Hotel in relation to the steps taken with respect to the injured man; nor was there any relevant finding in respect of the attendance of police. 61 Evidence of any actual concern on the part of the hotel staff prior to the first fight was simply missing. The best evidence available to the plaintiff was that of Ms van Huyssen who gave the following answers (Tcpt, p 36): "Q. What you could see was a large number of people standing in the general vicinity of the fallen man, correct? A. Yeah. Q. And it is right that after a while you started to get a bit worried about whether a big fight might break out? A. Yeah, but only because I hadn't been in that situation before. It didn't look like there was going to be a fight, no one was arguing or pushing or anything like that. Q. Well they started to do that after a while didn't they? A. By the time they'd started pushing and arguing there were already punches thrown, it happened straightaway. … Q. Well you were sufficiently worried that a fight was going to break out that you spoke to the manager about trying to get the people away didn't you? A. Yeah." 62 This evidence really provided very little assistance to the plaintiff. It related to a time after the first fight. Ms van Huyssen said that she had only worked at the Collingwood Hotel for a few days or about a week before the incident: Tcpt, p 28. She had not done work behind the bar in a hotel prior to that employment. Accordingly, it was understandable that she was nervous and uncertain after the first fight. Her evidence appears, however, to have been based on concern for the fate of the injured man on the ground, rather than an expectation of further violence. 63 The trial judge stated (at p 15), in relation to Ms van Huyssen: "It appears she may have been aware there was potential for a further outbreak of violence as is evidenced by the statement of Emma Salmon of Amy [van Huyssen] telling her to go and sit in the casino box for her own protection." 64 The support for this finding appears to come, at least in part, from the statement of Ms Salmon to the effect that Ms van Huyssen told her to call for an ambulance and go and sit in the casino box for her own protection. However, it was not put to Ms van Huyssen that she told Emma Salmon to sit in the casino box before the second fight broke out. Her own evidence in chief was that after the second fight had commenced, she went outside to tell her boyfriend who was waiting for her not to come in and then ran back to the casino "and then that's when Chris got us girls and put us in the cash box and we rang the police again to try and get them to come, because by that stage we could hear the glass getting smashed": Tcpt, p 31. 65 Reliance on that as evidence of earlier concern, or anticipation of violence, appears not to have been part of the plaintiff's case. In any event, her Honour's reliance upon it appears to have been misplaced, because it related to a time well after the injury to the plaintiff. 66 Her Honour noted that Ms van Huyssen "had not been given any instruction as to what protocol was to be followed in the event of any altercation in the hotel": p 14. Her Honour continued: "It does not appear she initially felt it necessary to call the bar manager which would have been a prudent course to follow." 67 It was agreed in submissions on the appeal that her Honour's various references to "the bar manager", "the hotel manager" and "the duty manager" were intended in each case to refer to Mr Penny. Ms van Huyssen gave evidence that she spoke to Mr Penny between the two fights, but it is not clear what caused Mr Penny to come downstairs at that stage and he left the front bar before the second fight erupted. Although her Honour said it would have been prudent for Ms van Huyssen to call the bar manager, as he did attend and as she reported what had happened to him, nothing seems to follow from that comment. Her Honour continued in relation to Ms van Huyssen: "That evening she had refused service of alcohol of patrons who appeared to her to be drunk but she did nothing about informing security of that fact nor does it appear she informed the hotel manager."

[59]

This appears to have been a critical failing on the part of the Hotel, as her Honour's conclusion in relation to the Hotel was that it failed to "fulfil its obligation to patrons by informing security or the duty manager that alcohol service had been refused": Judgment, p 17. This last comment appears to be a criticism of Ms van Huyssen and, perhaps by inference, of Mr Penny. 68 The implication underlying this finding is that had Security been informed that people had been refused alcohol, the security guards would either have turned them out of the hotel, or taken some other unspecified steps in relation to them. Ms van Huyssen was asked if she had stopped serving alcohol to anybody before the first fight and had replied, "Yeah, we cut a lot of people off": Tcpt, p 32. That conduct, although not commented upon by her Honour, appears to have involved a responsible performance of her duties, no doubt commendable in an 18-year-old who had been working for a week or less at what she believed was 'a rough pub' and who was described by the trial judge as "a young female of slight build": Judgment, p 14. 69 There was no evidence as to whether security guards would have turned out any person, just because they had been refused alcohol, absent disruptive behaviour, prior to the eruption of violence which constituted the first fight. Thereafter, there appears to have been no time to take those steps, even had they been deemed appropriate. The Court was not taken to any cross-examination of Mr Lafaele as to whether he would have turned a patron out who had been refused service unless they were demonstrating some degree of intoxication. In answering a question as to whether he checked for signs of intoxication whilst patrolling the bar, he said that he did and indicated that if a person was intoxicated he could be approached, refused further service and told to leave the club and go home: Tcpt, 23 May 2006, p 16. However, it was not put to him that he should have turned a person out if told by the bar attendants that the person had been refused service. Nor does it appear that her Honour intended that anything less than such a strict approach involved a breach of duty. She held, however (p 17): "Clearly there were patrons who had been refused service of alcohol. These were patrons who had engaged in violent behaviour and in such circumstances it seems to be entirely foreseeable such a situation could escalate as indeed it did … outside the hotel." 70 The first sentence in this finding is uncontroversial: it constitutes an acceptance of Ms van Huyssen's evidence. The second finding was the subject of strenuous challenge on the appeal. The use of the pluperfect "had engaged", so far as relevant to the plaintiff's claim, must have been a reference to violent behaviour engaged in prior to the second fight. However, if some inference were being drawn from the violent behaviour which constituted the second fight, the complaint is made that Ms van Huyssen was not asked whether any of those she had refused service of alcohol were engaged in the violent behaviour. The closest the evidence came was in cross-examination of Ms van Huyssen on behalf of the plaintiff, when the following questions and answers were given (Tcpt, p 38): "Q. Many of them before these fights broke out, many of them had been refused service because of their drunkenness, refused further service of alcohol because of their drunkenness hadn't they? A. Yep. Q. Well did you say anything to the security guards, look these ones over here are drunk? A. I don't remember." 71 The thrust of these questions, read in context, was to suggest to Ms van Huyssen that she should have pointed out persons to whom she was refusing service to security guards (she did not remember whether she had done so) so that they could be escorted off the premises. Her answer was largely confined to her own role, which was that they should be offered a water or soft drink before they were asked to leave. The cross-examiner continued: "Q. Well none of that went on, offering of waters or soft drinks did it? A. That's what I do, if I refuse, I offer people a glass of water or coke and explain to them that I can't serve them anymore alcohol." 72 That exchange did not provide a basis for concluding, relevantly, that the men involved in the first fight had been thought by Ms van Huyssen to be intoxicated so as to lead her to refuse to serve them alcohol. Ms van Huyssen gave evidence in relation to the first fight that she saw two men throwing punches, with a group "sitting behind them, but not like standing around watching them fight": Tcpt, p 35. If the injured man was intoxicated, as to which there was no evidence, despite the fact that an ambulance attended and apparently took him to Liverpool Hospital, nothing turned on that in relation to what followed. If his assailant were intoxicated at the time, he was, on the plaintiff's case, appropriately dealt with by being escorted out of the premises. It would seem to follow that the only relevance of the bar attendants advising security guards as to whom they had refused service was the possibility that the security guards would then pay closer attention to the state of inebriation of those individuals. However, in the absence of any evidence that the second fight involved persons who had been refused service, the causal link between any such breach of duty on the part of the hotel staff and the injury to the plaintiff is missing. Furthermore, it is not a link which could be drawn by this Court on the basis of the evidence presented at trial. Accordingly, in my view, the absence of any finding as to causation is fatal to the plaintiff's case against the Hotel, and hence the Licensee.

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Legal principles: causation 73 Although it was not relied on by the plaintiff, an issue was raised during the hearing of the appeal as to whether the plaintiff could rely, in order to establish causation, on the views of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408, at 420-421, where her Honour stated: "… generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect … it will be taken that the breach of the common law duty caused or materially contributed to the injury." 74 As discussed in Elbourne v Gibbs [2006] NSWCA 127, this approach has been adopted by the High Court in cases where the breach of duty constituted a failure by a medical practitioner to warn of the dangers involved in a particular proposed procedure, in circumstances where the procedure was in fact undertaken and the risk of which warning should have been given materialised: see Chappel v Hart (1998) 195 CLR 232 at [8] (Gaudron J), [27] (McHugh J), [68] (Gummow J), [93] (Kirby J); see also, in a case of failure to diagnose, Naxakis v Western General Hospital (1999) 197 CLR 269 at [31] (Gaudron J) and [76] (Kirby J). However, in applying the principles stated in these cases, it is important to note the factual context in which the question of causation arose. 75 In Naxakis, the question was whether a claim should have been withdrawn from the jury, where a child was not correctly diagnosed and suffered a major intracranial bleed from a burst aneurysm. The question was whether the hospital was negligent in not undertaking an angiogram. The case was withdrawn from the jury on the basis that there was no medical expert evidence to the effect that such a failure indicated a lack of reasonable care. The High Court held, nevertheless, that there was evidence from which the jury might have inferred that a failure to undertake an angiogram did involve a breach of duty. From there, the inference was available that, as a matter of causation, the failure to consider an alternative diagnosis materially contributed to the injury resulting from the burst aneurysm. 76 The plaintiff in Bennett had been, at the time he suffered an injury in a work accident, a ward of the State. The duty of the relevant government officer, for which the Minister was liable, was a failure to obtain adequate advice as to the plaintiff's entitlement to bring proceedings for personal injury. It was held that that failure was a breach of duty which continued to operate until the limitation period expired, unless the fact that legal advice obtained by the appellant in the interim constituted an intervening cause which terminated the Minister's potential liability. The joint judgment of Mason CJ, Deane and Toohey JJ, held that the second advice "was not only wrong but also was based on information given by the Department itself, that information being clearly incorrect and self-serving as the Department neither advised nor sought to obtain advice for the appellant": p 415. Accordingly, their Honours held that the breach of duty was a continuing cause of the failure to bring proceedings within the limitation period. At p 420, Gaudron J noted that "a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act". The difference identified was that in the case of a positive act it is known what happened, whereas in the case of an omission it is necessary to proceed on an hypothetical basis. Her Honour then referred to Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467 where Mason J had said "when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm". Her Honour continued: "In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a 'breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty' ( Betts v Whittingslowe (1945) 71 CLR 637 at 649 per Dixon J.) And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."

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Her Honour then explained: "The question of causation was answered by the majority in the Full Court without regard to what would or would not have happened had the Director obtained independent legal advice for Mr Bennett. As already indicated, that approach was wrong." 77 As explained by Brennan J in John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 242, the precise question with respect to causation may differ in relation to a breach of statutory duty (such as Betts) from that to be answered in the case of a general law duty to take reasonable care. Further, it is clear that Gaudron J in Bennett was not espousing any general rule, or even one applicable in that case, which would permit a trial judge to avoid the question as to what would or would not have happened, had appropriate steps been taken. The comments of Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [119] are to similar effect. As is clear from the statements of principle in Chappel v Hart, in the judgment of McHugh J noted above, and adopted in subsequent judgments in the High Court, a causal connection between breach and injury remains an essential element of the tort of negligence, to be proved by the plaintiff, albeit proof may be inferred from indirect evidence and may be inferred more readily in some circumstances than in others. 78 Furthermore, none of the cases suggest that causation does not remain a central component with respect to liability for breach of duty. As McHugh J noted in Chappel v Hart, at [34] in a passage cited with approval by Gummow J in Rosenberg v Percival (2001) 205 CLR 434 at [88], in a case of failing to warn of risk of injury and subsequent materialisation of the risk, "a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning … ." 79 Reliance on the dictum of Gaudron J in Bennett should not be taken so far as to undermine well-established principle. Nor does it assist the plaintiff in the present case, in the absence of a finding as to what the precise breach was in relation to each of the defendants. On the other hand, the difficulty in establishing the precise breach may reflect a difficulty in establishing causation. As Brennan J noted in Canny in relation to duty, breach and consequential damage, "in a given case, each element can be defined only in terms of the others": pp 241-242.

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Conclusions 80 In my view, the factual findings made by the trial judge did not warrant an ultimate finding of liability on the part of any of the defendants. That is not merely because her Honour failed to make a relevant finding as to causation in relation to the respective breaches of duty: it is because her Honour failed to identify with adequate precision the manner in which the relevant duties had been breached. 81 That conclusion leads to a question whether this Court can make any relevant findings, or whether there should be a retrial, or whether the Appellants are entitled to judgments in their favour. 82 It is not possible for this Court to make relevant findings on the evidence. Accepting that, to the extent it is unfavourable to the plaintiff's case, the evidence of Mr Lafaele should not be accepted, there remains a paucity of evidence upon which to make relevant findings. That is not because of any inconsistency between the evidence of the plaintiff and other witnesses, but because the attention of the plaintiff was directed to specific matters, including the state of health of the injured man. As a result, she did not, understandably, observe all of the actions of the hotel staff or the security guards. Nor did she give evidence of any relevant behaviour before the first fight which might lead to the inference that steps should reasonably have been taken, which were not, for the safety of patrons. Nor does the plaintiff gain sufficient assistance from the third witness to the events of the evening, Ms van Huyssen. 83 Although the plaintiff argued, on the appeal, that if there were error in her Honour's judgment, the only proper order was a retrial, such an order would not be appropriate if the evidence called at trial was insufficient to establish a relevant breach of duty on the part of either the Hotel or Security. In my view, for the reasons given, the evidence failed to demonstrate relevant breaches which might have a causal connection with the injury suffered. The plaintiff is not entitled to a second trial to attempt to make good the lack of such evidence. 84 I would propose the following orders:

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(3) Grant the First Respondent a certificate under the Suitors' Fund Act 1951 (NSW). 85 HANDLEY AJA: I agree with the reasons of Basten JA, and the orders that he has proposed, but wish to add some brief further reasons of my own. In my opinion Messers Lafaele and Levao acted reasonably in escorting the assailant who had been involved in the first fight from the public bar. The use of two guards for this purpose was calculated to deter resistance, and achieve a speedy removal. These outcomes would help to restore calm, but in any event the guards or perhaps the more senior of the two, was entitled to take that view. If he or they made the wrong decision it was no more than an error of judgment in reacting to a sudden emergency: see The Bywell Castle (1879) 4 PD 219 and later decisions. This principle is not confined to questions of contributory negligence. 86 In my view the fact that Ms van Huyssen had refused to serve more alcohol to some of the patrons did not establish that many were well and truly intoxicated. There was no evidence that her refusal of further service had provoked anger or aggression or that there had been unruly behaviour in the bar prior to the first fight. The security guards had not considered it necessary or desirable to escort anyone from the public bar at that stage. There was also no evidence that the second fight was started or extended by patrons who had been refused further service of alcohol. 87 A third security guard could have been summoned to the public bar, and only one guard could have been given the task of removing the assailant and this may have been "a reasonable response". It does not follow that the steps actually taken by the two guards were unreasonable. They had to act promptly and decisively in a difficult situation which arose suddenly and unexpectedly. As I have said their failure, if such it was, to adopt what the Court may now consider in hindsight was the best plan for dealing with this situation does not establish that the plan they adopted was so unreasonable in the circumstances as to be negligent. 88 For these additional reasons, and those given by Basten JA, the orders he proposes should be made. **********