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)".