Guildford Rugby League Football & Recreational Club Limited v Coad

COUNSEL : C Hoeben SC/G Grant (Appellant) R N O'Neill (Respondent) SOLICITORS : Connery & Partners (Appellant) Gulley Helene Scerri (Respondent) CATCHWORDS : NEGLIGENCE - Duty of Care - breach of duty - whether appellant breached duty of care by failing to evict person responsible for fight and failing to provide security guards - DAMAGES - Negligence - assessment of damages - sick pay and loss of earning capacity - appeal upheld. D Chordas v Bryant (Wellington) Pty Limited 20 FCR 91 Wyong Shire Council v Shirt (1980) 146 CLR 40 Oxlade v Gosbridge Pty Limited (unreported, NSWCA, 18 December 1988) CASES CITED: Smith v Leurs (1945) 70 CLR 256 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 176 ALR 411 Nagle Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Husher v Husher (1991) 197 CLR 138 DECISION : Appeal upheld. Orders of Delaney DCJ set aside. Respondent's claim dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40240/00 DC 1538/97 DAVIES AJA IPP AJA ROLFE AJA

Wednesday 23 May 2001 GUILDFORD RUGBY LEAGUE FOOTBALL & RECREATIONAL CLUB LIMITED V STEPHEN COAD

Facts: The respondent was injured at the appellant club after falling on broken glass while attempting to avoid a physical fight between two others which occurred as a result of the aggression of one of those persons. The respondent sued the appellant for negligence in failing to prevent the fight occurring. At trial the respondent was awarded $245,152.00. The appellant appeals against the findings that it was negligent and the assessment of damages against it. The appellant conceded that it owed the respondent a duty of care, however, at issue was whether they had breached that duty by failing to eject the person responsible for the fight and in failing to provide security guards.

HELD Liability in Negligence (i) Per Ipp AJA and Rolfe AJA agreeing. The appellant took all reasonable steps to prevent further disturbances between the two protagonists. The evidence showed that after an initial altercation the agitator showed no further signs of aggression and as such no reasonable person in the appellant's position would have taken steps to evict the agitator. (Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431 applied)

(ii) Per Ipp AJA and Rolfe AJA agreeing. Whilst there was sufficient evidence to support a finding that the appellant should have employed security guards on the particular Sunday evening, in the circumstances it was unlikely that the provision of security guards would have prevented the fight and injury to the respondent. (Oxlade v Gosbridge Pty Limited unreported, NSWCA, 18 December 1988 distinguished.

(iii) Per Davies AJA dissenting. A manager of licensed premises is under a more onerous duty of care due to the effects of the alcohol which they sell. In some circumstances a manager/proprietor of such premises may be found liable for injuries to patrons due to the acts of other patrons or third parties. If by exercising reasonable care he/she could have discovered the acts being, or about to be, done and could have prevented them, and the harm thereby avoided, simply by controlling the offender or warning the victim then the manager/proprietor may be liable. Therefore, where a manager/proprietor knew or ought to have known facts that required intervention to protect patrons then they will be liable. The evidence in this case suggests that the premises were not adequately managed and controlled as there were no staff members available to prevent the unacceptable behaviour which resulted in the altercation and injuries to the respondent. The responsible officer for the appellant, by failing to respond urgently as requested, failed to exercise the requisite level of control. Further, as there was no member of staff available to supervise and control the bar area it became incumbent upon the appellant to employ security guards to fulfil this role. The failure to do so was properly found as amounting to negligence. (Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 and Oxlade v Gosbridge Pty Limited unreported, NSWCA. 18 December 1988 applied)

Assessment of Damages (iv) Per Ipp AJA, Davies AJA and Rolfe AJA agreeing. In relation to the appeal as to assessment of damages, although not necessary to decide, the respondent should not have received damages for sick pay as there was no factual basis for the finding that the sick pay benefits were refundable. Further, the discount applied to the loss of earning capacity should have been higher to reflect the fact that the respondent had been in steady employment since six months after the accident.

Cases Cited: Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 Wyong Shire Council v Shirt (1980) 146 CLR 40 Oxlade v Gosbridge Pty Limited unreported, NSWCA. 18 December 1988 Smith v Leurs (1945) 70 CLR 256 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 176 ALR 411 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Husher v Husher (1991) 197 CLR 138 ORDERS

1. Appeal upheld.
2. Orders of Delaney DCJ set aside.
3. Respondent's claim dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40240/00 DC 1538/97 DAVIES AJA IPP AJA ROLFE AJA

Wednesday 23 May 2001 GUILDFORD RUGBY LEAGUE FOOTBALL & RECREATIONAL CLUB LIMITED V STEPHEN COAD JUDGMENT

1 DAVIES AJA: On 5 May 1996, the respondent, Stephen John Coad, was injured when, although he was an innocent bystander, he fell as a result of a fight which had broken out in the sports bar of the Guildford Rugby League Football & Recreation Club Limited ("the Club"). The facts can be briefly stated. 2 The Club appears to be a reasonably large club with more than one bar. On 5 May 1996, a Sunday, there were a lot more people in the bar than was normal on such a night. In the sports bar, a little after 7.00pm, one of the members, Mr Mal Stead, climbed onto a table to turn a TV set so that he could watch it. One of the members, Mr Jack Tamplin, left the room with a view to calling the duty manager, Mr P Dunmore. Mr Dunmore has recorded in an incident report that "I was called to the sports bar urgently". However, he did not come immediately. His report notes, "as soon as I was able to leave the office I went to the sports bar". 3 Before Mr Dunmore had arrived at the sports bar, Mr Stead climbed onto a table with a view to again move the TV set. It is not clear whether this step was taken to improve Mr Stead's view of the television, or to turn it back again. While Mr Stead was on the table, another member, Mr Bill Sly, hooked his finger in Mr Stead's belt, pulled him off and then, as he thought that Mr Stead intended to hit him, punched Mr Stead. Two directors of the Club, Mr Alan Bosley and Mr Brian Sloane, were present, although apparently not in an official capacity. They interfered between Mr Stead and Mr Sly and stopped the fight. Mr Stead returned to his chair and Mr Sloane and Mr Bosley remained chatting with Mr Sly and others. 4 Peace reigned for 5 to 10 minutes. Towards the end of this period, Mr Dunmore appeared in the sports bar. He had only begun asking about the incident when Mr Stead came rapidly from his chair and assaulted Mr Sly. In the resulting scuffle between them, Mr Coad was injured when he fell to the floor onto broken glass. 5 It was not in dispute before the trial Judge that the Club had a duty to take reasonable care to protect its members and visitors. The trial Judge found that the Club had breached that duty of care, in particular, by failing to eject Mr Stead before the last incident occurred and by failing to provide security guards. 6 In Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, the Federal Court of Australia considered an incident in which one person drinking in a hotel bar had struck another. The Court cited a number of American and Canadian cases on the point and also the following passage from 40 Am Jur 2d, par 111:- "Although a proprietor of an inn, hotel, restaurant, or similar establishment is not an insurer of the safety of his guests or patrons against tortious or improper acts or conduct of other guests, patrons, or third persons, he is bound to exercise reasonable care in this respect for their safety, and may be held liable on the ground of negligence. Such a proprietor is liable for injuries to guests or patrons caused by accidental, negligent, or intentionally harmful acts of other guests, patrons, or third persons, if, by the exercise of reasonable diligence, he could have discovered that such acts were being done or were about to be done and could have protected his guests or patrons by controlling the conduct of the tortfeasor or by giving adequate warning to enable the guest to avoid harm. But he is not bound to anticipate and guard against the unusual or abnormal, or against something which reasonable care, skill, or foresight could not have discovered or prevented. And there is no duty imposed on him to warn of obvious dangers created by a third person, unless he had knowledge of such dangers or unless knowledge may be inferred from the surrounding circumstances or from the lapse of time." 7 In this appeal, counsel did not dispute that that passage describes the content of the duty of care in a practical way, although, of course, Australian authorities, such as Wyong Shire Council v Shirt (1980) 146 CLR 40 dealing with issues of proximity and foreseeability, must be applied. 8 A manager of licensed premises has a more onerous responsibility than has a manager of non-licensed premises, because of the well-known effect of alcohol upon those who consume it. Alcohol tends to reduce inhibitions and to relax control. This is a factor of which proprietors and managers of licensed premises are well aware. It was the factor, which, in Oxlade v Gosbridge Pty Ltd (unreported, Mason P, Sheppard and Fitzgerald AJJA, 18 December 1998), led the Court to conclude that the harassment of a single female patron leaving a hotel at closing time was a sufficiently likely event as to have been reasonably foreseeable. 9 Mr David Gazzoli, an expert in the liquor industry whose opinion had earlier been accepted by the Court in Oxlade, reported in the present case, inter alia:- "1. Apart from the Club's obligations under the Liquor Act there are certain management practices and industry standards which, in my opinion, a Club should follow in conducting their business and, in particular, in the course of supplying alcohol to patrons. Club staff should be trained and instructed to be aware of excessive consumption by patrons. A Club properly staffed and managed will have staff engaged who walk around the floor area of the licensed premises. This person or persons would as part of their duties be clearing glasses, ashtrays, resetting tables and perhaps taking orders. In doing so, it is essential that these staff keep an eye on patrons both in respect of their consumption and behaviour. The staff member should keep a rough check on the number of drinks being consumed and behaviour at particular tables. The staff member should engage in occasional conversation with the patrons enabling that person to assess speech and mood of patrons.

2. The practices to which I refer have always been accepted and prudent practices to follow in the liquor industry since I started work over 25 years ago. In the course of my experience in this industry I have attended many other outlets and have observed these practices in place.

3 It is difficult to understand the time between the two altercations from the reports available, but I feel that both Sly and Stead should have been removed from the Club after the first incident. This would be a common practice throughout the industry, especially if both parties were showing any signs of intoxication.

4. A licensed security person may have dealt with the matter in a more professional manner than the duty manager, therefore possibly avoiding any injury to Stephen Coad. This is evident by the time it took the duty manager to arrive at the Sports Bar, where as a security person may have been there sooner." 10 The point which Mr Gazzoli made was that, because of the problems which alcohol can cause, it was necessary for the staff of licensed premises to keep an eye on patrons with respect to their consumption and their behaviour. He said that the practices to which he referred had been accepted and prudent practices followed in the liquor industry for a very long time. Mr Gazzoli emphasised the need for supervision and control in licensed premises. 11 As Mason P, with whom Sheppard and Fitzgerald AJJA agreed, said in Oxlade, "a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons". This point was also made in the passage from American Jurisprudence set out above. 12 Other matters to be considered are, as Mason P said in Oxlade, "the magnitude of the risk, the degree of probability of occurrence, and the expense and inconvenience of taking alleviating action". In these respects, however, no evidence was adduced by the Club. Mr Dunmore was not called to give evidence. Rather, the evidence showed that, since the incident, two security guards had been employed by the Club on Sunday nights to prevent a repetition of the type of incident in which Mr Coad was injured. 13 The picture given to me by the evidence is that, at the time Mr Coad was injured, the Club's premises were not adequately managed and controlled. It is hard to imagine that, in well controlled premises, a patron would get up on a table to move a TV set to the annoyance of other patrons, would return to move the TV set again and that another patron would then punch him. That type of behaviour is not acceptable and should not be permitted in reputable, licensed premises. Management should take appropriate steps to ensure that it does not occur. 14 On 5 May 1996, there was no member of staff controlling that type of behaviour. The two directors were not present in a managerial role. They only stepped in to stop the first fight. They did not attempt to sort out the problem with the TV set. Mr Tamplin had called the manager, Mr Dunmore, to do that. It seems to me that Mr Dunmore ought to have responded immediately when he was called to attend the sports bar. He was the duty manager. There were no members of staff maintaining control and there were no security guards. Mr Dunmore was given notice that there was a problem which required his urgent attendance. He chose not to attend immediately, for he was handing out and receiving tills and trying to work on the day's report. I feel satisfied that, had Mr Dunmore attended immediately, when he was first called, the subsequent incidents would never have occurred. If Mr Dunmore had come to the sports bar, attended to the TV set and spoken to Mr Stead, that would have been the end of the matter. Everyone would have done whatever Mr Dunmore required to be done. Because he waited so long, about ten minutes, Mr Dunmore failed to exercise control before the final fight erupted. 15 I would emphasise again that Mr Dunmore had ample knowledge that there was a problem in the sports bar that needed his attention. His own note recorded, "I was called to the sports bar urgently". His use of the word "urgently" shows that he received a message which must have conveyed to him that there was a problem in the sports bar which required his immediate attendance. 16 In the circumstances, I am satisfied that the Club was negligent and that the negligence was a contributing cause of Mr Coad's injury. 17 The manner in which I have dealt with the matter is within the particulars given in the statement of claim, for those particulars included the allegation, "The defendant failed to respond, or adequately respond, to a report that the assailant or another one of its members of guests was causing a disturbance on its premises". 18 The trial Judge did not deal with the matter in quite that way. Counsel for Mr Coad appears to have concentrated his address on paragraphs 3 and 4 of Mr Gazzoli's report, which I have set out above. I prefer to look at the matter on the basis of Mr Dunmore's failure to respond when advised of the need to do so. However, I do not consider the trial Judge's findings, on either the aspect of the ejection of Mr Stead or on the employment of security guards, to have been in error. 19 Mr Dunmore had authority to order that persons on the premises should leave. He subsequently exercised that authority in relation to Mr Sly, Mr Stead and Mr Coad. In my view, if Mr Dunmore had attended immediately, one of the matters he would have considered was whether or not to order that Mr Stead should leave. I agree with Mr Gazzoli's view that, had Mr Dunmore attended at about the time when Mr Sly pulled Mr Stead from the chair and punched him, Mr Dunmore would have considered whether to order, and should have ordered, that Mr Sly and/or Mr Stead leave the premises. 20 Similarly, I do not see any error in the finding of the trial Judge that security guards should have been employed. It may be that their employment on a Sunday night would not have been required had Mr Dunmore been available to supervise and control the events which were happening throughout the Club. However, he was not so available and the Club was left in the position where no appropriate member of staff was available to handle the ugly situation which developed in the sports bar. There being no member or members of the staff available to supervise and control the behaviour of members and visitors, it was incumbent upon the Club to employ someone, such as security guards, to undertake that task. Indeed, after Mr Coad was injured, security guards were employed. 21 On the issue of damages, I agree with the views expressed by Ipp AJA in his reasons for judgment. 22 I would dismiss the appeal on liability but would allow the appeal on damages to the extent set out in the reasons of Ipp AJA.

23 IPP AJA: On Sunday, 5 May 1996, the respondent sustained a severe laceration to his right forearm and hand while he was visiting the appellant club. His injuries were caused when he fell on a broken glass in attempting to avoid a physical attack launched on his brother in law, Mr William John Sly, by Mr Mal Stead. The respondent, Sly and Stead were all members of the appellant. 24 The respondent brought proceedings against the appellant. He claimed damages in respect of the injuries he sustained and asserted that his injuries were caused by the appellant's negligence. His claim was upheld by the trial judge, Delaney DCJ, and he was awarded damages in the sum of $245,152. 25 The appellant appeals against the finding that it was negligent and also appeals against two aspects of the assessment of damages. 26 In order that the issues on appeal may be appreciated fully, it is necessary to set out the relevant circumstances in some detail. I would preface what follows by the comment that many of the issues were not the subject of detailed evidence and some important issues were canvassed in a perfunctory way. This meant that, to some degree, the fact-finding exercise undertaken by the trial judge had to depend on the drawing of inferences. In argument on appeal, many of the parties' submissions concerned the inferences so drawn and other inferences that this Court was invited to draw. Some of those submissions rested on entirely speculative factual propositions. 27 For example, it would have been helpful had there been evidence as to the general layout and size of the club, and the dimensions of the sports bar area (where the respondent was injured), and the distances between the protagonists at the relevant times, but no testimony of this kind was led. At best, the evidence produces a vague impression of the layout of part of the club. Additionally, the evidence of important incidents leading up to the eventual attack by Stead on Sly lacked appropriate detail. I refer to the difficulties to which this gives rise when discussing the respective contentions of the parties. 28 The respondent was an electrical engineer with a broad background in the electronic industry. He had been a member of the appellant "for quite a number of years". On 5 May 1996, at between 6.30 pm to 7.30 pm, he arrived at the club accompanied by his wife, his sister and Sly. 29 On arrival, the respondent purchased some beer vouchers at the front foyer. His wife and sister went to the snack bar area to get something to eat. Sly "went up to the sports bar area at the back of the club". The respondent then went to the "lower bar area" where he bought some beer. 30 When Sly arrived in the sports bar, he began talking to Mr Alan Bossley and Mr Brian Sloane, who were directors of the appellant and who were having a drink in the sports bar apparently, in a private capacity. That is to say, it seems that they were not there in any official capacity. 31 Prior to Sly's arrival in the sports bar, Stead had climbed on to a chair in the sports bar and turned a television set around so that he could be able to watch the football that was being shown on it. Mr Jack Tamplin had been watching the television from a different position. Stead, by turning the television around, prevented Tamplin from being able to see the screen. It is not clear what then occurred but Tamplin went looking for the duty manager, Mr P Dunmore. Dunmore was in the office "handing out and receiving tills and trying to work on today's report". According to his "incident report", Dunmore "was called to the sports bar urgently", presumably by Tamplin. Dunmore was busy, however, and did not leave the office immediately. Tamplin returned to the sports bar. 32 Sly had entered the sports bar before Tamplin returned and began talking to Bossley and Sloane. There was no evidence as to the period that elapsed between the time that Stead turned the television set around and Sly's arrival. While they were standing around, talking, Sloane told Sly about the incident between Tamplin and Stead. 33 Although no evidence was given on this issue, it seems that the television set was returned to its original position. At some stage thereafter Stead again jumped on to a table to move the set once more. There was no evidence as to the period between the first incident involving the television set and the second, but the impression given is that Stead moved the set for the second time a matter of minutes after Sly arrived. 34 What then occurred was described by Sly as follows: "I put my finger in behind his belt buckle, pulled him off the table, he landed on his feet, he looked like he was shaking [sic - shaping] to throw a punch, there was a punch thrown, then Brian and Alan Bossley basically got in and stopped the whole thing".

Sly was asked who threw the punch and he answered "Myself". 35 Sloane and Bossley then intervened between Sly and Stead. According to Sly, they "stopped it very quickly". They told Stead to go back to where he was sitting ,and he did so. No evidence was led as to how far away Stead was from Sly when he returned to his original seat. 36 The respondent entered the sports bar soon after Stead returned to his seat. Bossley attempted to reassure the respondent, saying words to the effect that "nothing had happened", that he should not worry, and everything was "alright". Whether the respondent understood to what Bossley was alluding was not made clear. 37 The respondent began to talk to Sly and a number of people who were standing around a table. According to Sly, there were "five or six people standing around the table". 38 Sly said that the table was "on the corner". This may mean that the table was at the corner of the room but this inference is by no means certain. Stead, according to Sly, "was sitting across the room". This may mean that Stead was on the other side of the room but again this is uncertain. As I have mentioned, there was no evidence as to the dimensions of the sports area. 39 Dunmore, the duty manager, then entered the sports bar and began investigating what had happened when Stead had moved the television set. 40 Thereafter, and about five or ten minutes after Bossley and Sly had intervened between Sly and Stead, the respondent saw a man (who was Stead) coming towards Sly and himself. Stead was coming, according to witnesses, "in a kicking motion" or with a "flying kick". 41 The respondent moved, presumably rapidly, to get out of the way and slipped or "got bumped over". He fell to the ground and found that he had cut his hand badly and there was a piece of glass stuck into the inner aspect of the forearm between the wrist and the elbow. 42 A fight then ensued between Sly and Stead, but this was stopped and they were separated. 43 The respondent sustained a laceration across the palm and a longitudinal laceration along his right forearm. The median nerve in the palm was completely severed and the ulna nerve almost severed. The hand was operated upon and the respondent received treatment. The medical opinion was that the respondent had "a permanent 60% loss of use of his dominant right hand". 44 At the trial, the respondent put his case on the basis that the appellant was negligent in failing to eject Stead prior to the last confrontation between Stead and Sly and, additionally, the appellant was negligent in failing to provide adequate security at the club. "Security" in this sense, according to the respondent, meant the provision of security guards. 45 Delaney DCJ, held that the appellant owed the respondent a duty of care which it had breached by failing to eject Stead and thereby "allowed a situation to develop which led to the eventual unprovoked attack upon the [respondent] who was an entirely innocent person in the affair". His Honour also held that the appellant had breached its duty of care by failing to ensure that security guards were on duty in the sports bar at the time. He held that the presence of such guards "would have deterred the assailant from the unexpected attack". 46 On appeal, the appellant accepted that it owed the respondent a duty of care but denied that it had breached that duty in the respects found by the learned judge. Moreover, the appellant submitted that the breaches of duty as found did not cause the loss sustained by the respondent. 47 In Smith v Leurs (1945) 70 CLR 256 Dixon J said at 262: "It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature". 48 In Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 176 ALR 411 the High Court was concerned with a case where the first respondent was assaulted in a car park at night. The first respondent was the employee of a video shop in a shopping centre. The appellant was the owner of the shopping centre and the car park. The first respondent contended that the appellant owed him a duty of care as an employee of one of its tenants and that the appellant had breached that duty by not keeping the car park lights on at the time the first respondent was leaving the video store. Gleeson CJ held, at 419, that: "The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land".

Gaudron, Hayne and Callinan JJ were of a similar view. 49 In the present case, however, the appellant did not dispute that it owed the respondent a duty of care to take reasonable steps for his safety. This acceptance of a duty of care was based on Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 and Oxlade v Gosbridge Pty Limited, unreported, NSWCA, 18 December 1988 where it was held that a hotel owner had a duty to take reasonable steps to protect one patron from a foreseeable risk of injury from the acts of another patron. 50 Whether there was a breach of the admitted duty of care depends upon "the action that a reasonable person in the [appellant's] situation would have taken to guard against the foreseeable risk of injury which existed": per Mason CJ, Deane, Dawson and Gaudron JJ in Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431; see also Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 454. 51 I turn, firstly, to the breach of duty said to be constituted by the failure to eject Stead. 52 Mr Hoeben SC, senior counsel for the appellant (who did not appear at the trial), submitted in this regard that there were no reasonable grounds to believe that there was any possible risk that Stead would attack Sly or even cause a further disturbance. According to Mr Hoeben, the directors of the appellant, Sloane and Bossley, had taken all reasonable steps to prevent any harm occurring when they separated Stead and Sly. Moreover, Stead, in apparent entire acceptance of their authority, had returned to his seat some distance away from Sly. Therefore, he argued, a reasonable person in the appellant's situation would have taken no further action to guard against the foreseeable risk of injury to persons in the sports bar. 53 Mr O'Neill, counsel for the respondent, relied particularly on the expert testimony of Mr Gazzoli, a "hotelier consultant in the liquor industry", who expressed the opinion that Stead should have been removed from the Club "after the first incident". It seems from Mr Gazzoli's evidence in chief that by "the first incident" he meant the occasion when Sly punched Stead after Stead had attempted to move the television set for the second time. Delaney DCJ appeared to rely heavily on this evidence, emphasising that "no evidence was called to refute it". 54 In cross-examination, however, Mr Gazzoli said that his view was based on "industry practice" and he accepted that "those industry practices have to be utilised in accordance with the facts and circumstances of the particular case at the particular time". That, after all, is commonsense. 55 What was there about the conduct of Stead at the relevant time that could have suggested any possibility that he might behave aggressively or otherwise cause trouble after he had returned to his seat? 56 On the evidence, the prior conduct of Stead that was out of the ordinary involved only the two instances when he climbed on the table to turn the two television sets around. One may speculate that there was some altercation when he first turned the television set, which led to Dunmore being asked to come urgently to the sports bar. There was, however, no evidence about this and, again, it is speculative whether the perceived need for Dunmore's presence involved the conduct of Stead, or whether it was occasioned by the behaviour of some other person. Moreover, there was no evidence that Stead said anything at all on the second occasion when he turned the television set, or that he did anything of an aggressive nature once he had completed the turning of the set. On that occasion it was Sly who was aggressor and not Stead. True it is that Stead, according to Sly, looked as if he was shaping to throw a punch. But the fact is that Stead did not punch Sly. Sly punched Stead. Stead did not return the blow. Significantly, when Sloane and Bossley intervened, the situation was calmed "very quickly". Stead returned to his seat, apparently, quite willingly. There was no evidence of any apparent resentment on his part. 57 Thereafter, for five to ten minutes, Stead remained seated at his table which was some (unknown) distance from where Sly was standing. There was no evidence that, during this period, Stead displayed signs of resentment or anger. 58 Sly was in a group of five to six people. Bossley, a director of the appellant, was part of the group. Sloane, another director, was nearby, as was Dunmore. Although Bossley and Sloane were directors, they may not have been there in an official capacity. Stead, however, seemed to accept their authority. Dunmore was certainly present in his capacity as duty manager and was investigating what had occurred. 59 Peace had apparently been restored. So much so that Sly had turned his back to Stead. At a later meeting of the disciplinary committee of the appellant, Sly agreed that he should not have involved himself "in removing a member from a table in the sports bar" and said that "he believed that the matter had settled down". From what Bossley said to the respondent it seemed that he, too, believed that order had been restored and there was no cause to worry. In my opinion, on the evidence available, this was an appropriate response. 60 At one point in his testimony, Sly said that Stead "appeared to be drunk". When cross-examined, the only reason he gave for this opinion was that Stead had jumped on the table to move the television set. Sly described this as "not the done thing". The trial judge made no factual finding as to whether Stead appeared to be under the influence of alcohol and, on the strength of the evidence available, I do not think that such a finding could properly be made. 61 In summary, on the evidence, Stead had shown no signs of overt aggression. He had complied with whatever Bossley and Sloane had said to him and was apparently sitting at his table in an ordinary manner. Things had apparently returned to normal, and this was of the view of both Sly and Bossley. The respondent, himself, in his evidence, did not suggest that Stead had given any indication of untoward behaviour and he, too, seems to have behaved as if there was no cause for concern. In these circumstances, I do not think that any reasonable person in the appellant's situation would have evicted Stead. I do not agree, with respect, with the conclusion to which the learned judge came on this issue. 62 I would note that the respondent did not plead that the appellant should have evicted Sly, and Delaney DCJ made no findings in this respect. The proposition that Sly should have been evicted was not pressed on appeal, nor could it have been. 63 I turn now to the question whether the appellant breached its duty of care by failing to provide security guard in the sports bar. 64 The appellant accepted that the need to have security guards on the evening in question turned on whether there were sufficient numbers of persons at the club to require such action. 65 The appellant employed two security guards on Friday and Saturday evenings for the security of its patrons. These two guards, dressed in uniform clothes, patrolled the entire club but were often to be found in the sports bar area. 66 On Sundays, the appellant "very rarely" provided security guards. According to Sly, "if there was nothing on", as was normally the case on Sundays, the appellant did not employ security guards. 67 The club was open for functions on Friday and Saturday evenings and on those occasions, according to Sly, there were "generally large amounts of people there". It was for that reason that security guards were provided on those occasions. Only when there was a function on a Sunday evening, similar to the functions on Friday or Saturday evenings, were security guards provided. 68 What was meant by "functions" is obscure. In particular, it is not apparent whether a "function" involved a football match in which the club's "metropolitan" side (its first team) played. On the Sunday in question the club's A grade side, but not the metropolitan side, had played a game. Importantly, however, according to Sly, there was a function on the Sunday evening and this testimony was not disputed. No evidence was given as to the nature of this function. Sly said that there were a lot more people present than there normally were. There was no evidence, however, as to how many people "normally" were in the club on a Friday or Saturday evening and how many were present on the Sunday evening in question. On the other hand, there was no evidence to refute the generalised testimony given by Sly in this respect. 69 Despite the shortcomings in the evidence, I think that there was sufficient evidence to justify his Honour's finding that security guards should have been employed on the evening of Sunday, 5 May 1996. I should add that this conclusion is reinforced by the fact that, after the attack by Stead, the appellant proceeded to employ security guards on Sundays. 70 The next question is whether the presence of security guards would have made any difference to what occurred, that is, would the employment of security guards prevented Stead from attacking Sly. 71 The first point to be noted is that it is by no means certain, that - had security guards been employed - they would have been present in the sports bar at the relevant time. They may have been patrolling elsewhere in the club, as they did from time to time when they were on duty. This factor, however, is probably not of critical significance as the respondent sought more to rely on the deterrent effect of security guards rather than any prospect of them being able to prevent Stead from launching his attack on Sly. 72 The respondent was undoubtedly correct in this approach as, on the evidence, it is most unlikely that security guards would have been able to prevent Stead from doing what he did. The fact is that, while the guards might not have been in the sports bar area at the relevant time, at least they would have been in the vicinity - presumably to the knowledge of Stead (who was likely to have noticed them in the course of their patrols). Accordingly, it is arguable that their employment would have acted as a deterrent to any violent behaviour on the part of Stead. 73 In Oxlade v Gosbridge Pty Limited young men in a parking area outside a hotel behaved in a threatening and offensive manner to the appellant. In attempting to get away from them, the appellant negligently drove into a bystander. Mason P (with whom Sheppard AJA agreed) considered that the presence of security guards would have deterred the young men from behaving in that way and the appellant would not have driven into the person in question. Delaney DCJ applied this reasoning to the present case and Mr O'Neill, for the respondent, sought to support that approach. 74 In my opinion, however, the circumstances are significantly different in this case. It is one thing to infer that the presence of security guards would dampen aggressive behaviour of some forty hotel patrons in a parking area close to the hotel entrance. It is another to suggest that, in the particular circumstances of this case, security guards would have had a similar deterrent effect on Stead. 75 It must be remembered that, at the time Stead attacked Sly, a director of the appellant, Bossley, was standing within a metre or two of Sly. Sloane, similarly a director of the appellant, was also standing nearby. Through their previous intervention, Stead had returned to his seat. Moreover, Dunmore, the duty manager, was in the sports bar in an official capacity. The presence of these persons did not deter Stead. Could it be said, on a balance of probabilities, that, had security guards been there as well, Stead would have behaved differently? In my view, this question has to be answered in the negative 76 In Oxlade v Gosbridge Mason P relied on authority supporting the proposition that: "where there has been breach of a duty to exercise reasonable care to avoid a risk, where the risk came home, then ' breach of the duty is treated as materially causing or contributing to that injury unless there is "sufficient reason to the contrary "' ( Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 239, citing Betts v Whittingslowe (1945) 71 CLR 637 at 649 per Dixon J. See also per McHugh J at 34, per Gummow J at 68, per Kirby J at 93)".

In my opinion, the particular circumstances that I have set out constitute "sufficient reason to the contrary". 77 It was argued, without a great deal of enthusiasm, that had security guards or some officer of the appellant, acting in an official capacity, been present when Stead first climbed on the table to turn the television set, Stead would not have attacked Sly and the respondent would not have been injured. The argument was put on the basis that had such persons or person been present, they or he might have dealt with the problem with the television set in a satisfactory way, thereby preventing any further trouble between Sly and Stead. 78 It is the case that, until Dunmore arrived, it seems there was no one in the sports bar in an official capacity during the period that Stead twice turned the television set. This, presumably, was the reason why Tamplin went to search for Dunmore. I say "presumably" because this was simply not investigated at the trial. 79 The problem with this argument, however, is that it was not the basis of the case presented by the respondent at the trial and the scenario outlined was never put to the witnesses who testified. In my view, there is insufficient evidentiary detail as what precisely occurred on the two occasions that the television set was turned to be able to come to any reliable conclusion as to the merits of the proposition. 80 In the result, I have formed the opinion that the learned judge erred in finding that the appellant negligently caused the respondent's loss. I would, therefore, uphold the appeal. 81 Although, strictly speaking, it is unnecessary for me to deal with the grounds of appeal relating to the quantum of damages, I shall briefly do so. 82 The first such ground is that Delaney DCJ wrongly held that the respondent was liable to repay sick leave benefits he had received. On this basis his Honour included the amount the respondent was so liable to repay in the damages he determined. 83 The only evidence of such liability was a letter from the respondent's employer expressing the opinion that the sick leave payments were refundable to it on successful completion of the appellant's claim. No factual basis whatever was given for this opinion. In my view this was not an adequate foundation on which to allow this part of the claim and I consider that his Honour erred in awarding the sick leave payments in question. 84 The next issue as regards the quantum of damages concerns the award for loss of future earning capacity. Delaney DCJ found that the respondent had suffered a loss of earning capacity of 40%. He then applied a discount of 25% to that 40%, in addition to the conventional 15% for vicissitudes. The appellant submits that his Honour erred in this respect by omitting to consider the extent to which the appellant's loss of earning capacity was or might be productive of financial loss: Husher v Husher (1991) 197 CLR 138 at 143 and 147. 85 Apart from the six months immediately following his injuries, the respondent suffered no actual loss of earnings. He had been in steady employment and had achieved promotion. He was working as a supervisor and was not required to use his hands a great deal. He said that he "had people working for me" and "they did the hands on work". 86 The appellant submitted that Delaney DCJ should have applied a total discount of 50% to the 40% loss of earning capacity (and not 25%). I accept this submission. 87 In the result I would uphold the appeal, set aside the orders made by Delaney DCJ, and order that the respondent's claim be dismissed with costs. 88 ROLFE AJA: I agree with Ipp AJA.

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