Cregan Hotel Management Pty Ltd & Anor v Hadaway

The events of 17 September 2004 10There was significant factual conflict and divergence before the primary judge, who gave detailed consideration to the evidence including making credibility assessments. It is not necessary in these reasons to go into everything with which his Honour dealt; however, his Honour's factual findings are not altogether clear. The events material to breach of duty of care must to a considerable extent be distilled from his Honour's reasons, and as will appear the findings are sometimes inaccurate and are flawed in an important respect. 11The primary judge accepted the respondent's evidence in preference to that of Mr Robinson. The material events which follow come largely from the respondent's evidence, although it will be necessary to consider his Honour's apparent reliance on the evidence of others. 12The respondent and Mr Robinson had known each other for some years, and for a period Mr Robinson had shared accommodation with the respondent and his daughter. There had been a falling out, and their friendship had degenerated to what the primary judge described as "a considerable degree of deep-seated ill-will" (at [62]). Amongst other matters, the respondent maintained that Mr Robinson had not paid his share of rent and, when he left the shared accommodation, had taken some of the respondent's household goods and power tools. 13The hotel had become the respondent's local hotel, and he was known to the staff there. Mr Robinson also regularly drank at the hotel, and until 2002 had worked at the hotel on occasions as a security guard: he also was known to, and from working there knew, the hotel staff and security guards. 14On duty on 17 September 2004 were the bar manager Mr Daniel Miller, a barman Mr Siosaia Militoni, and a security guard Mr Ricky Nelson and at least one other security guard. It is not clear whether (apart from the second appellant) there were other hotel staff; if there were, they did not feature in the evidence. The security guards were provided under contract to the appellant, and the respondent said that he did not contend that the appellant was vicariously liable for their acts or omissions or by reason of their knowledge. 15The respondent arrived at the hotel at about 4.30 pm. The Friday meat raffle was an attraction, but he also intended to give vent to his ill-will against Mr Robinson: as recorded by the primary judge (at [88]) - "He said that in the course of the afternoon he had made a point of telling anyone who knew the first defendant [Mr Robinson] and who was prepared to listen, that the first defendant was a thief who had ripped him off. Clearly, the plaintiff did so with the intention of embarrassing the first defendant amongst his friends, acquaintances and former co-employed security guards at the hotel." 16The respondent had four or five beers in the main bar. At about 5 pm he was sitting on a bar stool at a bench table talking to Mr Militoni, who was on a rest break from his duties. Mr Miller was behind the bar a short distance away. 17Mr Robinson entered the main bar area from the beer garden and walked up to the table, grabbed the respondent by the shirt collar and made to lift him up, and slapped the respondent on the face and tried to drag him from his seat towards the outside of the hotel. This was accompanied by loud verbal abuse, to the effect, "You fucking lying cunt, let's go outside and sort this out ... . You're a fucking liar. Come outside and we'll sort this out you prick". Mr Robinson was angry and yelling loudly. The respondent replied, "Piss off, you thief, leave me alone". 18Mr Militoni got between them and Mr Miller came across. They separated them, telling them "to cut it out, no fighting in the pub". In the primary judge's findings Mr Nelson also came across, but that was not the evidence. His Honour also mistakenly attributed to this occasion, which I will call the 5.00 pm confrontation, some exchanges which on the evidence were a little later in what I will call the 5.30 pm confrontation. On this occasion, Mr Robinson was saying that the respondent was "a fucking lying cunt" and "Just go outside, come on, let's go". 19After Mr Miller and Mr Militoni intervened, the respondent went into the bistro area and Mr Robinson went over to the pool tables in the main bar. The primary judge found that Mr Miller told the respondent to go to the bistro area, but on the evidence that again was confusion with the 5.30 pm confrontation. On the respondent's evidence, he was not told to go there but went "to let everything settle down". It is clear enough, however, that the antagonists were caused to go to separate areas within the hotel. 20The evidence did not make clear the layout within the hotel or the separation distance. It appears, however, that there was partitioning between the bistro area and the main bar where the pool tables were, but with some gaps through which one could see from one to the other. 21The respondent drank with friends in the bistro area. Then came the 5.30 pm confrontation. At about that time he went from the bistro area into the main bar to speak to a friend, Mr Joshua Drum, who had been playing pool and whom he saw through one of the gaps in the partitioning. He did not see "any risk or problem" in going to speak to Mr Drum. 22When the respondent went into the main bar Mr Robinson "came flying up at [the respondent] from the pool tables", saying words to the effect, "Fucking, we've got to sort this out. You're a fucking cunt", and "I'm going to get you. Fucking, come outside, I'll kill you". He was angry and yelling and screaming. The respondent told Mr Robinson to the effect, "Fuck off, I don't want to fight you". The exchanges were loud, "the whole pub could hear", and Mr Robinson had his hands up ready to fight and "his face looked like he just wanted to take a bite out of me". 23Mr Miller, Mr Militoni, Mr Nelson and another security guard came over and separated them. Mr Miller got between them, and one of the security guards pulled the respondent back out of the way. Mr Robinson kept saying words to the effect, "Come on, throw us both out. You're a fucking liar, come on outside, I'm going to punch your head in", and "Come on, throw us both out so I can just punch his head in when we get outside". The respondent said that he did not want to fight. The respondent and Mr Robinson continued to trade "fucking thief" and "fucking liar". 24One or more of the bar staff and security guards said, "Well you're going to have to be separated then". The respondent was told to go back to the bistro area, Mr Robinson was told to stay in the main bar, and "we weren't allowed to go on the other side". 25The respondent stayed in the bistro area after the 5.30 pm confrontation, until about 9.30 pm. He had some more drinks. It is not clear what Mr Robinson did, but it appears that he remained in the hotel. There was no suggestion that he made to go or went into the bistro area. 26The respondent became fairly well intoxicated, describing his level of intoxication when he left at about 9.30 pm as being about eight out of ten. He left intending to go to a pizza shop a little distance away because he had missed having a meal at the bistro, which was closed. He left by the front or bistro door and walked towards the pizza shop. 27The outcome of the 5.30 pm confrontation and the respondent's whereabouts thereafter, as described above, is subject to what the primary judge apparently found concerning the respondent's "ejection" from the hotel. As will appear, what his Honour said in this respect can not stand with his acceptance of the respondent's evidence and the occurrence of only the two confrontations, at about 5.00 pm and 5.30 pm. Before going to the findings, I will complete the events of the evening so far as necessary for the appeal. 28When the respondent was about 200 metres distant from the hotel, almost at a roundabout in Park Beach Road down which he was walking, he heard a call, "Hoon, stop". "Hoon" was a nickname from earlier times in motor bike racing. He turned and saw Mr Robinson and some other persons, including Mr Nelson and another security guard but not any of the hotel staff, running towards him from the direction of the hotel. When Mr Robinson came up to him he (Mr Robinson) said "Come here, you cunt, I'm going to bash you". The respondent said that he did not want to fight and had had too much to drink. This had no effect: Mr Robinson then assaulted him, resulting in significant injury. 29The primary judge found "that when the first defendant left the hotel premises he did so at a time when he was able to and did in fact observe the plaintiff walking away from the hotel in Park Beach Road" (at [398]). His Honour made no finding as to how Mr Robinson came to leave at this time, or whether it was coincidental with the respondent leaving or by design.

Ejection from the hotel? 30The primary judge dealt with the 5.30 pm confrontation under the heading "Critical event 3: Second claimed incident at about 5.30 pm involving the plaintiff and the defendant", and then with "Critical event 4: Events between 5.30 pm and the plaintiff leaving the hotel at about 9.30 pm". Under the first heading he serially described the "accounts" of the respondent, Mr Robinson, Mr Drum and Mr Miller and under the second heading he serially described the accounts of the respondent, Mr Robinson, Mr Nelson and Mr Miller (although the descriptions in some cases were incomplete and what his Honour said sometimes went beyond what happened on the occasion or in the period). 31As to critical event 3, the respondent's account was as I have earlier described, but on Mr Robinson's evidence the respondent was ejected from the hotel by Mr Nelson. According to Mr Robinson the occasion of the earlier confrontation was only the respondent hurling abuse at him when he entered the hotel, which he ignored. When he was later playing pool the respondent made threatening gestures (finger across the throat) and came over. They had an argument. Mr Miller or Mr Nelson intervened, and Mr Robinson made unclear reference to the respondent being excluded to the bistro area. Then about 20 minutes later there was another incident, when the respondent came back into the main bar and abused him aggressively. Mr Nelson said, "Righto Hoon, you've had enough, time to go, you've blown it", and walked him out through the front door of the hotel. The primary judge's description of Mr Robinson's account was not entirely complete, but reflected this evidence. 32In the description of Mr Drum's account, the primary judge said only that he had left the hotel at about 9.00 pm "and had no direct knowledge of subsequent events in which the plaintiff was ejected from the hotel" and "It is clear from this evidence that the plaintiff was ejected from the hotel after this time" (at [124]). This is odd. The topic at this point was the 5.30 pm confrontation. Mr Drum had given evidence of a shirt-grabbing incident, and then a subsequent incident when the antagonists were told to go to different bars in the hotel. He could not be accurate as to time, but when he left an hour or two later he went through the bistro and saw the respondent sitting with a couple, and the respondent seemed quite relaxed and not bothered by the earlier incident. None of this was mentioned by his Honour, but ejection (which at this point seems to be assumed) after 9.00 pm was not consistent with Mr Robinson's account which his Honour had described under the same heading of critical event 3. 33In the description of Mr Miller's account, the primary judge said that he recalled only one argument (according to him not a loud one), when he separated the antagonists and asked the respondent to go to the other side of the bar if he wanted to stay in the hotel. 34The primary judge did not refer to Mr Nelson's evidence in relation to critical event 3, although the respondent's account had included separation by Mr Nelson. As appears below, Mr Nelson said that he began work at about 8 pm. There was no analysis of the evidence nor, apart from the apparent assumption of ejection after 9.00 pm, were any conclusions expressed. 35As to critical event 4, the respondent's account was as described earlier in these reasons. In describing Mr Robinson's account, the primary judge first set out a passage from his evidence concerning ejection when the respondent came back from the bistro area; his Honour said that Mr Robinson appeared to have conflated "the first and second events in the hotel" (that is, the 5.00 pm and the 5.30 pm confrontations) and that the ejection "may have been a reference to the plaintiff being ordered to go to the other side of the bar" (at [142]). This is difficult to understand. His Honour then set out a passage from Mr Robinson's evidence according to which the respondent came into the main bar and made threats and insulting remarks, Mr Robinson walked over and slapped his face, the respondent said he did not want to fight, and the respondent was "chucked out"; Mr Nelson and another security guard asked him to leave and he left with them, "protesting verbally, quite full-on" and was taken out of the hotel. His Honour recounted that Mr Robinson finished his game of pool and about five minutes later left the hotel. 36Although the primary judge did not refer to it, in Mr Robinson's evidence the respondent "snuck into our side of the bar", which could suggest coming from the bistro area rather than from outside after a previous ejection, and this occasion was an hour to an hour and a half after the previous occasion. That would place it at about 7.00 pm to 7.30 pm. 37In the description of Mr Miller's account, the primary judge recorded that the primary judge said that he claimed that he had not seen either the respondent or Mr Robinson leave the hotel that evening. 38In the description of Mr Nelson's account, the primary judge recorded that when he began work at about 8 pm he was told by Mr Miller that there had been an earlier incident in which the respondent had threatened Mr Robinson and Mr Miller had told them to go to separate places in the hotel. In the course of the evening the respondent had come over from the bistro side of the bar where he had earlier been sent, and had made threats towards Mr Robinson. Mr Nelson did not remember seeing any physical contact, but he "walked him through to the door and asked him to call it a night". The respondent left, and Mr Nelson saw him walk across the road for about 10 metres and then returned to his duties. 39Again, theprimary judge did not analyse or comment on the various accounts or express any conclusions. 40Without any later analysis of the accounts of the two critical events, a finding as to ejection from the hotel came out of nowhere. 41Considerably later in his reasons the primary judge identified "credit issues" and made extensive observations on the credibility of a number of the witnesses. A consideration of the "the credit issues between the plaintiff and the second defendant [the appellant]" (at [321]) included, after reference to the collar grabbing occasion and before completion of the credibility observations - " Conflicting versions as to events leading to plaintiff's ejection from the hotel 328. What then followed, was also the subject of conflicting testimony. On the one hand the plaintiff claimed that, after some time, during which he had adhered to Mr Miller's request that he remain in the bistro on the other side of the bar, and keep himself separate from the first defendant, he felt he was able to approach Mr Drum in the bar area where he had been playing pool, in order to speak with him. 329. The plaintiff claimed that at that time the first defendant became aggressive towards him and offered to fight him outside. On the other hand, the first defendant claimed that, against the background of the plaintiff having made threatening gestures towards him, including by the movement of his index finger across his throat, the plaintiff approached him with aggression, and swearing at him, and in these events uttered words that conveyed a threat to kill him. Ejection of plaintiff from the hotel 330. What is not in dispute is that on whichever of the above competing versions was correct, these events led to Mr Nelson, the security guard on duty at the hotel who had been alerted by Mr Miller to the fact that there were interpersonal problems between the plaintiff and the first defendant, approaching the plaintiff and then ejecting him from the hotel. Mr Nelson then watched to see the plaintiff walk, on Mr Nelson's version, some 10 metres or so away from the hotel before he himself re-entered the hotel to return to his normal duties." 42At a later point, in the course of a review of Mr Nelson's credibility which ended adversely to Mr Nelson, his Honour said - "350. Mr Nelson had been told by Mr Miller that there had been an altercation and that the plaintiff had allegedly threatened the first defendant, which resulted in Mr Miller relocating the pair into separate public areas in the hotel. Based on that understanding, when Mr Nelson saw the plaintiff approach the first defendant and allegedly behave aggressively towards him, including by issuing threats, which he summed up as ' yeah, drunk, angry stuff, I guess', he then ejected the plaintiff from the hotel and watched him proceed to walk a distance of 10 meters [sic] down the road before returning to his normal duties in the hotel." 43The apparent acceptance that the respondent was ejected from the hotel was not further explained. That the respondent was ejected from the hotel was central to the primary judge's reasoning to breach of duty of care. 44The appellants submitted that the fact-finding was flawed, and that the respondent was not ejected from the hotel. That submission should be accepted. 45There is confusion in the primary judge's appreciation of the evidence. The respondent's "version" to which his Honour referred at [328] was his account of the 5.30 pm confrontation, apparently accepted by his Honour. Mr Robinson's "version" to which his Honour referred at [329], from the index finger across the throat movement, was part of his account of critical event 3, the part which Mr Robinson said led to the respondent being walked out by Mr Nelson; according to Mr Robinson that occurred at about 6.00 pm when the respondent came back after being sent to the bistro area. Further, uttering of words by the respondent conveying a threat to kill was not part of Mr Robinson's evidence - on the contrary, it was the respondent's evidence that Mr Robinson said to "come outside, I'll kill you". 46It was not correct that on either version the events led to Mr Nelson ejecting the respondent from the hotel. At least according to Mr Nelson, he had not come on duty until 8.00 pm and can not have ejected the respondent at a time congruent with the respondent's version. His Honour had earlier accepted that the ejection must have been after 9.00 pm, and an ejection with Mr Nelson watching for 10 metres or so runs together critical event 3 with which the "versions" were concerned and the later critical event 4. 47In the absence of analysis of the evidence the basis for the primary judge's finding of ejection is not clear, but it is unsound. 48The primary judge concluded that he "should prefer and accept the evidence of the plaintiff compared to that of the first defendant on key matters in dispute between the parties" (at [388], giving extensive reasons). He said that he "was not assisted by the evidence of Mr Miller, Mr Nelson ... and Mr Webb because I considered them partisan to the cause of the first defendant and for the reasons I have set out considering the credibility of their testimony" (at [393]). (Mr Webb had been in the hotel and had left with Mr Robinson.) Speaking specifically of the occasion of the assault outside the hotel, his Honour said that he preferred the evidence of the respondent, supported by that of two eyewitnesses, to the evidence of Mr Robinson, Mr Webb and Mr Nelson and that these three witnesses "had contrived their evidence in an attempt to exculpate the first defendant from any liability for the assault on the plaintiff ... " (at [410]). These credibility assessments are contrary to a finding that the respondent was ejected from the hotel. 49Counsel for Mr Robinson put to the respondent in cross-examination that there had been a number of "encounters" with Mr Robinson during the evening and "numerous occasions on which you were heckling him". It was specifically put that there was "an incident just before you left the Hoey Moey, when Ricky Nelson separated the two of you", which the respondent denied. It was put that this was when the respondent was on the bistro side of the bar and had come round the other side and told Mr Robinson that he was a thief and threatened him, that Mr Robinson grabbed him and slapped him in the face, and that he was escorted out of the hotel by Mr Nelson. He denied this also. The primary judge did not refer to this evidence. Acceptance of the respondent in preference to Mr Robinson involved acceptance of these denials of a later occasion when the respondent was ejected from the hotel by Mr Nelson. 50At least on appeal, it was not disputed that the respondent had left the hotel at about 9.30 pm. In the primary judge's reasoning to breach of duty of care, his Honour took the ejection from the hotel as occurring when he left at that time. The finding that he was ejected, at that time or at all, is flawed. 51The respondent did not seek to support the finding, or the subsequent reasoning based upon it whereby the primary judge found breach of duty of care. The respondent's case at trial had not been that he had been ejected from the hotel at about 9.30 pm and, when he was ejected, the appellant failed to take due care for his safety. On his evidence, he left voluntarily at about 9.30 pm. His case had been that Mr Robinson should have been ejected from the hotel at an earlier time, after the 5.30 pm confrontation; alternatively, both he and Mr Robinson should have been ejected at that time but in a controlled manner. That case was maintained on appeal. 52Consistently with the case so maintained, in the detailed "narrative" provided by the respondent as part of his written submissions on appeal the course of events was the 5.00 pm and 5.30 pm confrontations and the respondent then remaining in the bistro area for about four hours until he took himself off to get a pizza. The ground of appeal challenging that the respondent was ejected from the hotel was not raised until shortly before the hearing. (I do not regard the lateness as detracting from it; rather, it appears from the appellant's written submissions that insufficient attention had earlier been given to the appeal and counsel appearing on the appeal came into the matter late.) Thus the respondent was not required expressly to deal with a challenge to the ejection finding in his written submissions, but his oral submissions presented no argument to uphold it and were on the basis of the two confrontations and then the hours passing before the respondent voluntarily left the hotel. 53That is not surprising, as it had been the respondent's evidence. It may be noted that at trial the respondent submitted that, on the basis that he had agreed that he could have come on duty earlier than 8.00 pm if there were a special event and could not remember whether or not there was a special event on the day in question, Mr Nelson could have been on duty at the time of the 5.30 pm confrontation. 54I have considered whether the fact-finding was so unsatisfactory that a new trial is necessary. There was brief mention of that possibility in the course of argument. The appellant did not want a new trial, and the respondent said nothing about it. In the circumstances, particularly where the respondent's case does not involve that he was ejected from the hotel, but rather that Mr Robinson was not ejected from the hotel (or that both of them were not ejected from the hotel), I do not think a new trial is necessary. The appeal should be decided on events of 17 September 2004 material to breach of duty of care as earlier stated.

Breach of duty of care 55Since the respondent did not seek to support it, it is sufficient to state briefly the primary judge's reasoning. His Honour considered that the duty of care owed by the appellant to the respondent extended to taking reasonable care "that when he was involuntarily ejected from the hotel his safety would be given reasonable consideration" (at [426]). He said that when the respondent had been threatened with assault by Mr Robinson and was ejected because of an apprehended altercation between them, it was necessary that the appellant ensure that the respondent was well clear of the hotel before Mr Robinson left. It was insufficient that Mr Nelson watched the respondent for about 10 metres, and the appellant should have observed his movements and those of Mr Robinson until the respondent "was considered to be out of the way of foreseeable harm" (at [463]), and should have warned the respondent and acted to protect him if necessary. 56There are considerable difficulties in this reasoning, but they need not be considered and I say nothing of the reach of the duty of care owed to an ejected hotel patron after the patron has left the hotel. It does not arise. 57With particular reliance on the evidence of Mr Richard Jennings, a security consultant, the respondent submitted that in the exercise of reasonable care for his safety as a hotel patron the appellant should have ejected Mr Robinson from the hotel at the time of the 5.30 pm confrontation and ensured his continued exclusion; alternatively, the appellant should have ejected both him and Mr Robinson at that time in a controlled manner whereby they would not be left together outside the hotel. Only if in negligent default of ejecting one or both of them should the appellant have supervised and controlled the respondent's later departure as it in fact took place. 58Mr Jennings provided two reports and was cross-examined. 59The first report dated 1 November 2007 was upon instructions that there had been threats and "low level violence" between Mr Robinson and the respondent "for some time" so they were separated but allowed to continue drinking "at opposite ends of the premises"; about 4 hours later it was seen that they "had again got back together in the hotel bar", so the security guard told the respondent it was time to leave and he was "escorted off the premises" and seen to walk off up the street; and Mr Robinson also left and followed the respondent. 60Mr Jennings said - "The hotel management and their contracted security operatives acted perfectly in order with accepted protocols in separating the two men whilst inside the hotel (if they chose to follow this course of action, rather than evicting one or the other of them at that first sign of conflict). Latterly they chose to evict the Plaintiff which again was perfectly in order, but then they failed to follow the accepted protocol of not allowing the other party in conflict, to leave in such a time frame or by such a route as would not allow or actively discourage the parties from meeting up again a short distance from the hotel." 61The second report dated 20 May 2008 was on instructions that half an hour after the separation the two men "got back together again and the aggression resumed", including Mr Robinson asking that both be ejected so he could continue the aggression outside the hotel; again they were permitted to stay and ordered to opposite ends of the hotel; the respondent left voluntarily four hours later "and it is alleged that a security officer watched him walk off up the street"; and Mr Robinson also left and followed the respondent. 62Mr Jennings said - "The hotel management and their contracted security operatives could be said to have acted in accordance with accepted protocols in separating the two men whilst inside the hotel (if they chose to follow this course of action rather than evicting one or the other of them at that first sign of conflict). However, when the fight re-erupted half an hour later, they again chose to leave both parties in the hotel, rather than evict one, or both of them, with appropriate separation precautions. When the Plaintiff voluntarily left the hotel four hours later, the hotel staff and/or security personnel failed to follow the accepted protocol of not allowing the one party in conflict to leave in such a time frame or by such a route, as would not reasonably allow the parties to meet up again, a short distance from the hotel. ... The hotel management and their contracted security operatives may be viewed as having acted perfectly in accordance with accepted protocols on the first occasion of the conflict and violence between the Plaintiff and Mr Robinson in separating the two men whilst inside the hotel. ... Such a decision would have to be based upon the detailed description of the threats and assaults sustained and more importantly the subsequent attitude of the protagonists. If there was any indication that the parties were not willing to leave it there and not re-offend, then the decision may have been acceptable. If the parties indicated that the conflict was likely to re-occur then a decision should have been made to ask one of the parties to leave the hotel (likely the First Defendant as he appears to have been the instigator). ... The decision to let both parties remain in the hotel following [the] first altercation may therefore have been said to conform to acceptable practice in the industry, however this certainly cannot be said to be the case when considering the second altercation some half an hour later. It appears that the staff once again separated the parties and despite hearing the First Defendant threatening the Plaintiff, including make a threat to kill him, chose to let both men stay in the hotel for another four hours. It is reasonable to assume that both parties had consumed much more alcohol over that four hours and therefore by the time the Plaintiff left the hotel they were both negatively affected by that alcohol with likely, much impaired judgment. ... Having failed to have the parties in conflict, or at least one of them, leave the hotel immediately following either the first or the second altercation, the hotel bar staff or the security personnel acting on behalf [sic] and seeing the Plaintiff leave at 9.30 pm, they failed to follow the accepted protocol of not allowing the other party in conflict, to leave in such a time frame or by such a route as would not allow or actively discourage the parties from meeting up again a short distance from the hotel. ... ". 63Both reports were particularly concerned with controlled departure of one or both of the antagonists so that they did not leaved in close proximity to each other. It is not immediately evident that Mr Jennings was giving admissible opinion evidence, but an objection to his reports was not upheld and admissibility was not revisited on appeal. According to Mr Jennings, allowing Mr Robinson to remain after a second confrontation was not acceptable practice (although in the first report it seems to have been a matter of choice) because of the risk of conflict re-occurring within the hotel. 64In oral evidence Mr Jennings was asked to "explain further why, after the second altercation, in your view Mr Robinson should have been excluded from the hotel". He said - "WITNESS: Over the half hour the parties had been separated but they had - at the second altercation there'd been a further expression of violence, in fact, an expansion of the threat of violence by the defendant - first defendant - which, under all normal circumstances, it should have been that person is then ejected from the hotel under safe conditions. GROSS Q. If in fact Mr Robinson is, in effect, the aggressor and is being heard by hotel staff, loudly, to be inviting the plaintiff outside for a fight, and then half a hour later resumes that invitation, but again being the aggressor, and asking the hotel staff to throw both of them out of the hotel so that he can bash the plaintiff, and if, in fact, Mr Robinson has expressed, within the hearing of the hotel staff, on the second occasion, a wish to kill the plaintiff, what do you have to say about those matters? A. Well, those were matters which should have been closely noted by the hotel management and it should, under all normal circumstances, have been grounds to have the person evicted from the hotel. ... Q. I appreciate we don't have a situation where it's been put to you as an expert, on the plaintiff's behalf, that both should have been excluded at the same time. But if, in fact, the hotel people had decided that both men should leave, would your report also cover that situation where you describe an orderly separational procedure where you've got two people who are at loggerheads who have to leave the hotel at about the same time? A. Yes." 65The respondent also relied on appeal on evidence of Mr Robinson, Mr Miller and Mr Nelson. 66The respondent said that Mr Robinson's evidence, given from his experience as a security guard, was that a reasonably run hotel would eject a patron who was threatening to bash or kill another patron. This did not well reflect the evidence. Apart from the fact that Mr Robinson said that he had not been to many reasonably run hotels, the effect of his evidence was that it was not so when there were locals as in the Hoey Moey - "You get to know the people and their reputations, and no you're not right". 67Mr Miller had been the bar manager at the hotel for about 4 years. His hotel experience was otherwise not revealed, save that he had worked in another hotel owned by the appellant. On Mr Miller's evidence he saw little; he was not accepted by the primary judge. Mr Miller agreed that if there were physical and verbal altercations any reasonably well run hotel would exclude Mr Robinson and make sure he left the vicinity. He agreed also that if two persons were threatening violence to each other he would "tend to exclude both persons from the premises", although not letting both go out together. He said that if he heard an aggressive altercation in which a patron was threatening to bash and kill another patron - "Q. It would not be a proper response simply to separate the two men and put them in different parts of the hotel on the basis that they agreed to stay in different parts of the hotel. A. Not if it was an aggressive, not if it was, like, full on, like, 'I'll kill you. I want to bash you", or something like that, definitely not." 68The extent of Mr Nelson's experience as a security guard was not revealed. The primary judge doubted the veracity of Mr Nelson's evidence of events after the respondent left the hotel, and his evidence of ejecting the respondent from the hotel can not have been correct. The evidence on which the respondent relied in connection with breach of duty of care was not concerned with ejection at the time of the 5.30 pm confrontation. 69Apart from statute, the appellant owed to the respondent as a patron of the hotel a duty to take reasonable care to prevent injury from the violent, quarrelsome or disorderly conduct of other patrons: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [26]. It is necessary to consider the general principles and other principles in ss 5C and 5D of the Civil Liability Act . They need not be set out. There was a foreseeable risk of harm to the respondent at the hands of Mr Robinson in another confrontation in the hotel; it could not be said to be insignificant. Would a reasonable person in the position of the appellant have ejected Mr Robinson, or ejected both the respondent and Mr Robinson in a controlled manner? 70Industry practice so far as found in Mr Jennings' evidence is a guide, not the determinant of reasonable care for the safety of an hotel patron. What is reasonable always depends on the circumstances, here the circumstances of appropriate control of human responses of two men known to the hotel staff and security guards. That does not attract a stereotyped response to the risk of injury. 71It was a reasonable response to the 5.00 pm confrontation to separate the respondent and Mr Robinson within the hotel, notwithstanding the considerable aggression shown by Mr Robinson and reciprocal animosity from the respondent. The aggression included that Mr Robinson wanted the respondent to go outside so that they could "sort this out". The 5.30 pm confrontation could cast doubt on the efficacy of the separation after the first confrontation, but it did not exclude that reinforced separation would be effective. Moreover, the 5.30 pm confrontation did not erupt into violence, and rather was Mr Robinson again wanting to sort it out outside, with an invitation to hotel and security staff to throw them out. Mr Robinson wanted them to be thrown out so that he could punch the respondent's head in, and accompanied this by "I'll kill you": it was undoubtedly conveyed that if they were thrown out Mr Robinson would try to do serious harm to the respondent outside, although killing could not be taken literally. Of importance, implicit in the invitation to go outside and wanting to be thrown out was that Mr Robinson was not likely to do harm to the respondent while they were in the hotel - even less likely than at the time of the partly physical 5.00 pm confrontation when separation was a reasonable course. 72There were bar and security staff on hand, who had successfully quelled both confrontations and had reinforced the separation. Ejection of a disruptive patron was permissible, see Liquor Act 1982 (since repealed) ss 103(1), 103(3A) concerning turning out violent, quarrelsome or disorderly persons, but hotel patrons are entitled in general to take advantage of the hotel facilities and over-ready ejection infringes their rights; it is not to be done lightly. The appellants could have decided to eject Mr Robinson, or both the respondent and Mr Robinson, but the question is whether it was unreasonable for them to have continued their separation within the hotel. I am not satisfied that continuing the separation despite the second confrontation was unreasonable. 73Appreciating that hindsight should not be used, it may be observed that continuing the separation was effective. For a further four hours there was no other confrontation. 74Mr Miller's evidence, for whatever weight it would otherwise have, is undermined by Mr Jenning's acceptance that separation was a reasonable response to the 5.00 pm confrontation. What he said did not take account of the postulated threat to bash and kill being a threat to do so if the respondent came outside or they were thrown out, not to do so then and there in the hotel - a matter to which Mr Jennings' evidence made only passing reference. 75In my opinion, it was not established that the appellants were in breach of the duty of care owed to the respondent in failing to eject Mr Robinson, or the respondent and Mr Robinson, at the time of the 5.30 pm confrontation. Breach of duty of care thereafter does not arise.

Other matters 76Had breach of duty of care been established, causation would have arisen. Causation is very debateable, and did not receive serious attention in submissions: and it would not be appropriate to express a conditional view. There is no utility in addressing contributory negligence, for which it would also be necessary to go further into the circumstances of the assault. As earlier mentioned, it was agreed that the appeal as to damages should be deferred, and similarly I do not think it should be conditionally decided.

Orders 77I propose the following orders. They have the effect that the mistaken judgment against the second appellant is also expunged. The cross-claim against Mr Robinson fails because there is nothing for which to claim contribution, and although Mr Robinson did not appear on appeal I see no reason to deny him the trial costs of the cross-claim, if any.

1. Appeal allowed
2. Set aside orders (b), (c), (d), (e) and (f) made in the District Court on 3 September 2010.
3. In lieu thereof the orders - (a) Judgment for the second and third defendants; (b) Judgment for the cross-defendant Mr Robinson on the cross-claim; (c) Plaintiff pay the costs of the second and third defendants; (d) Cross-claimant pay the costs of the cross-defendant Mr Robinson.
4. First respondent Mr Hadaway pay the appellants' costs of the appeal and have a certificate under the Suitors Fund Act 1951. 78BASTEN JA : On the evening of 17 September 2004, at about 9.30pm, the respondent, Mr Graham Hadaway, was assaulted and injured by Mr Heath Robinson. In the course of the assault, Mr Robinson broke Mr Hadaway's leg. Mr Hadaway (whom it is convenient to call "the plaintiff") brought proceedings against Mr Robinson claiming damages in respect of an intentional assault and battery. He was successful in the District Court and obtained a judgment in his favour in a substantial sum. That judgment is not in issue in the present proceedings. 79For more than four hours before the assault, the plaintiff and Mr Robinson had been drinking at a hotel owned and operated by the first appellant, Cregan Hotel Management Pty Ltd ("Cregan Hotel"), through its manager, Mr Lindsay Archibald, who held a licence in respect of the premises under the Liquor Act 1982 (NSW). The assault did not take place on the hotel premises, but on a street about 200 metres from the hotel. The plaintiff did not assert that the appellants were in any way responsible for the conduct of Mr Robinson; rather, each was sued in negligence, the particulars of which were, in substance, a failure to take adequate precautions to prevent Mr Robinson assaulting the plaintiff. 80The pleading was manifestly deficient in that it failed to allege that the appellants, or either of them, owed a duty of care to the plaintiff, nor the facts from which such a duty might arise. Further, in written submissions filed at trial on the "liability issue", dated 5 June 2009, the plaintiff accepted that Mr Archibald was not liable and was entitled to a judgment in his favour: paragraph 68. The case against the corporate appellant, Cregan Hotel, as the owner and operator of the business, was expressed in the following terms (written submissions, par 69): "[Cregan Hotel] owed the plaintiff a duty of care, as a patron of the hotel, to protect him from risk of attack by Robinson not merely while the plaintiff was on the hotel premises but also while he was making his way from the hotel. This duty of care arose because of the type and number of direct physical threats which Robinson made to the plaintiff and Robinson's stated intention to bash the plaintiff when he got him outside the hotel, all of which [Cregan Hotel's] employees heard." 81There was no dispute on the appeal that the owner and operator of licensed premises owed a duty of care to its patrons, which extended to taking reasonable care to prevent them being attacked by other persons who were aggressive, or were likely to be aggressive because affected by liquor: see Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, applied by this Court in Wagstaff v Haslam [2007] NSWCA 28; 69 NSWLR 1 at [39]. The earlier cases in which such claims have been upheld by injured patrons have mainly related to attacks which occurred on licensed premises, as in Wagstaff : see also Spedding v Nobles; Spedding v McNally [2007] NSWCA 29; 69 NSWLR 100; Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 and Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, although in each of the latter cases the claims failed on the facts. There have been further cases where claims have been brought in respect of assaults which occurred beyond the boundaries of the licensed premises. In some cases the duty has been claimed on behalf of the inebriated patron who has been injured (or killed) as a result of his or her own conduct: Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 and CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390. 82There have also been cases more directly relevant to the present circumstances, in which one patron has assaulted another, beyond the precincts of the licensed premises: Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 and Portelli v Tabriska Pty Ltd [2009] NSWCA 17. In each case the parties involved in the altercation off the premises had been involved in a fracas within the premises, to the knowledge of the staff of the manager, who had separated the parties. In each case the claim failed. In Karimi , as explained by Bell JA, the club and the company responsible for security at the premises, were not shown to have failed to take reasonable care for the safety of Mr Karimi. However, her Honour acknowledge the potential availability of a claim in such circumstances, at [59]: "Mr Karimi was being turned out of the Club by Allied staff following an unprovoked assault on him inside the Club. The reasonableness of the policy of requiring that all of the participants in an altercation be required to leave may not be in doubt. However, one consequence of it is that an innocent party, as Mr Karimi was, is potentially vulnerable to further assault by being required to leave along with the aggressor. Allied's duty to take reasonable care to protect Mr Karimi from the criminal conduct of Mr Smith, which arose because of Mr Smith's known intoxicated and aggressive behaviour inside the Club, did not come to an end following his eviction. Allied's guards did not act upon a view that their responsibility was at [an] end after Mr Smith had been escorted beyond the perimeter of the Club. They spent time talking to Mr Smith and satisfying themselves that he had calmed down and that it was his intention to go home with his girlfriend. I consider that the assessment made by Allied's guards of Mr Smith's condition is critical to its liability, and to the liability of the Club, for the later criminal assault committed by him on Mr Karimi but in my view this is because it bears on the determination of the measures that were reasonably required to discharge the duty." 83Portelli involved an altercation which occurred in a hotel in Jindabyne, following which the assailants were escorted off the premises through the front door and the victim was allowed to leave via the back door shortly thereafter. As explained by Allsop P, the primary judge had approached the claim on the basis that there was no duty of care owed to the plaintiff once he had left the premises: at [24]. However, the trial judge had also held that if a duty did arise, there had been no breach in the circumstances of the case. A challenge to that finding failed in this Court: at [59]. Nevertheless, Allsop P, with whom Hodgson and Macfarlan JJA agreed, expressed reservations as to the proposition that the duty "cannot extend to any circumstances where the wrongdoing causing injury to the plaintiff occurred in a public street": at [61]. His Honour continued: [61] ... The element of control which, together with the statutory obligations and occupation of the site, is the foundation of the duty may in appropriate circumstances apply to control of the victim (or at least circumstances which attend the victim) as well as of the aggressor. The fact that the aggressor has been put out of the hotel may not exhaust the obligation of the licensee or occupier to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron. ... [62] A publican may anticipate that a fight, which has occurred in his or her hotel before being broken up, might reignite on the street. It might be foreseeable that if this occurred there would be danger to a patron who was involved in the fight previously in the hotel and has not left, but who intends to leave. In these circumstances, it might ... be prudent of the publican to call the police. It does not mean, however, that the publican necessarily has a legal duty to do so in the discharge of a duty to a remaining patron or that he or she thereafter becomes the guardian of the patron who is still on the premises or that he or she becomes responsible for getting that patron home and beyond the clutches of the potential combatant outside. [63] Here, if the circumstances had revealed a threatening group outside the hotel and if it ... should have been reasonably apparent to [the publican] that the appellant would or might well be set upon when leaving, whatever exit were to be used, it may be that given his position of control and his obligations under the Liquor Act 1982 (NSW), especially ss 104 and 125 dealing with quiet and good order of the neighbourhood and conduct on licensed premises, he would have been obliged to ring the nearby police as a reasonable step in furtherance of the safety of the appellant. In terms of any duty to the appellant, it might well however have been sufficient for him to say something to the appellant to make the appellant aware of the danger in order that he, as a responsible adult, could make his own decisions as to how to deal with the situation." 84For the plaintiff to succeed in the present case, on the principles accepted in Karimi and Portelli , he needed to establish that: (a) responsible staff in the hotel knew, or ought to have known, at the time that he left that there was a real risk of him being pursued and attacked by Mr Robinson; (b) he had left the premises when he did, and (c) Mr Robinson knew, or was in a position to know, when the plaintiff left the premises. 85If those elements were established, there would then be a question as to what steps could reasonably have been taken to prevent Mr Robinson leaving the hotel, or otherwise to protect the plaintiff in the street. Any case depending on this approach might have faced formidable difficulties: perhaps for that reason, no such case was pleaded or, as it appears, run. 86The case differs from both Karimi and Portelli in two significant respects. First, the aggressor (Mr Robinson) was not ejected from the premises and, secondly, the plaintiff's departure was not supervised by hotel staff. The case run at trial was, in substance, that Cregan Hotel should, in the exercise of its duty to the plaintiff, have ejected Mr Robinson earlier in the evening and well prior to the plaintiff's departure. As explained in the written submissions at paragraph 78: the fact that the plaintiff was assaulted outside the hotel was not critical, because the relevant activity occurred "within the main bar itself at the time when [Cregan Hotel] being aware of the details ... of the two encounters, failed to exercise its right of control at that point in order to eject Robinson from the hotel and its environs". The submissions continued at paragraph 82: "[Cregan Hotel], in the particular circumstances of the case, including the type, number and severity of the threats made by Robinson to the Plaintiff (including, in particular, the stated intention to injure the Plaintiff as soon as he managed to have the Plaintiff go outside the hotel), required that the hotel immediately after the second encounter, should have ejected Robinson and made sure (including by giving instructions to its security guards) that he had completely left the area of the hotel and its environs, in the manner described by Mr Danny Miller, [Cregan Hotel's] bar manager. There was then a continuing breach of its duty of care in allowing Robinson to remain on the hotel premises while the plaintiff also remained on the hotel premises. The fact that up to four hours passed between the time of the last encounter and the time of the Plaintiff's departure from the hotel did not alter or remove [Cregan Hotel's] breach of its duty of care, because (for the reasons given by Mr Jennings) the risk was not reduced by that factor and possibly, if anything, increased that risk (although whether further consumption of alcohol by Robinson and the Plaintiff had this effect is entirely speculative). If the necessary protective steps (ie ejecting Robinson from the hotel and making sure that he had left the area including the environs of the hotel) had occurred, the Plaintiff would not have been injured by Robinson." 87The disparity between this case and Karimi and Portelli was augmented by the finding of the trial judge that the plaintiff himself had been "ejected" from the hotel. That finding must have been based on the evidence of a security guard, Mr Nelson: at [330], [350] and [430]. The breach of duty found by the trail judge involved the finding that, after the altercations in the hotel, relevant staff (including the manager) "must have been aware that there was a significant and foreseeable risk of a physical altercation occurring between [Mr Robinson] and the plaintiff": at [447]. His finding of breach was expressed in the following terms: "[456] First, in the aftermath of the ejection, it was still incumbent upon the hotel to keep [Mr Robinson] and his movements under observation, including to the extent of an awareness of the timing of his departure from the premises in juxtaposition to the ejection of the plaintiff from the premises. [457] Secondly, according to the standard nominated by Mr Miller, which I accept to be the reasonable standard to be observed in the circumstances, it was incumbent upon the hotel staff to ensure the plaintiff safely left the precincts of the hotel premises to a reasonable perimeter, in this case either to go to his nearby home by walking or by taxi, or to a perimeter of 300 metres, as was indicated by Mr Miller, and in either case, out of the way of foreseeable harm from predictable violent behaviour towards him from known antagonists who were within the hotel, in this case, [Mr Robinson]." 88As explained by Giles JA, the plaintiff did not run a case based upon the fact that he had been ejected forcibly from the premises. Had that occurred, it must have been as the result of an incident in the hotel shortly before 9.30pm. The circumstances of the incident would have been critical to any analysis of the appellants' obligations at that time. Because the evidence did not support the occurrence of such an incident, the judgment cannot be maintained on that basis. 89Further, the absence of any incident which might have alerted the hotel staff to continued risk of aggressive behaviour on the part of Mr Robinson towards the plaintiff at the time the plaintiff left the hotel explains why the case was run on the basis of an obligation to eject Mr Robinson earlier in the evening, when he was aggressive towards the plaintiff. I agree with Giles JA that the evidence of Mr Miller and Mr Jennings did not establish that the separation of the plaintiff and Mr Robinson, without ejecting Mr Robinson, constituted a breach of the hotel's duty of care to the plaintiff. The fact that an alternative course (ejection of Mr Robinson) was available did not demonstrate that separation was itself unreasonable. 90Nor was it sufficient to suggest that there was a "continuing breach" thereafter. A continuing breach suggests a continuing duty. In the circumstances of the case, that must have involved a continuing duty to monitor the behaviour of both the plaintiff and Mr Robinson, for the purpose of ensuring that protection was provided from Mr Robinson, presumably during his continued stay in the hotel and at the time of his departure. No case was run on that basis, nor was it demonstrated that there was any breach of such a continuing duty. It is significant that, in Karimi , the security guards had made an assessment, which was not rejected as untenable, that the aggressive party had calmed down at the time that he left the premises. Absent a continuing duty, and demonstrated breach thereof, it is difficult to suppose that the plaintiff could properly have established that the earlier failure to eject Mr Robinson was a cause of the assault which resulted, four hours later, after the plaintiff left the premises. 91I agree with Giles JA that the appeal should be allowed: I also agree with the orders he proposes.

I certify that the preceding 91 paragraphs are a true copy of the reasons for judgment of the Hon Justice R D Giles and of the Court. Associate 8 November 2011

Amendments 17 November 2011 - line 2: delete "ed" from "established";In (b): delete "that" Amended paragraphs: 84 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2011