Haris v Bulldogs Rugby League Club

Haris v Bulldogs Rugby League Club - [2006] NSWCA 53 - NSWCA 2005 case summary — Zoe

[12]

17 MARCH 2006 Samer HARIS v BULLDOGS RUGBY LEAGUE CLUB LIMITED Judgment 1 MASON P: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION The appellant, Samer Haris ("Mr Haris"), was injured by a firework while attending a football match as a spectator at a stadium occupied by the respondent, Bulldogs Rugby League Club Ltd ("the Bulldogs"). The appellant brought a claim in negligence against the respondent, who conceded that it owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury. The central question in this appeal is the steps that should be taken to discharge that duty, with the emphasis on what would be reasonable in the circumstances. 3 The trial judge, Truss DCJ, found that while the respondent did indeed owe such a duty to the appellant, it had not breached that duty. The judge found that, although the risk was both foreseeable and significant, the respondent had taken reasonable precautions, in terms of the security measures taken, to minimise the possibility that the risk would be realised. 4 The trial judge was not persuaded by the appellant's submission that the respondent's failure to take additional measures, such as increasing the number of security guards, reducing the density of the crowd, stopping the game or using bomb detection dogs, constituted a breach of duty. The trial judge found to be sufficient the steps that actually were taken. These steps took place both in advance of the game's commencement by way of bag searches and during the game. 5 Although the trial judge found in favour of the respondent, at the request of the parties she went on to assess damages. 6 The appellant challenges the decision of Truss DCJ both as to breach and as to quantum. As to breach, the appellant challenges the trial judge's findings in relation to: (a) Whether bag searches were being conducted at the entrance to the stadium, after the commencement of the game; (b) The power of security officers to conduct body searches; (c) The use of sniffer dogs; (d) Whether a customer safety plan was in force in 2002; (e) Whether reducing crowd density would have enabled the respondent to identify offenders in the crowd; (f) Whether the failure of the CEO of the respondent to address the crowd a second time constituted a breach of duty; (g) Whether the failure of the respondent to issue loudspeaker messages constituted a breach of duty; (h) Whether stopping the game and/or redirecting fans to other parts of the ground would have been of assistance; and (i) Whether a reasonable person in the position of the respondent would have taken the additional measures proposed by the appellant, pursuant to s5B Civil Liability Act 2002. 7 As the grounds of appeal, summarised below indicate, the appellant challenges the trial judge's finding on grounds which also include a claimed lack of reasons in the instances noted. As I explain in relation to those specific findings, much if not all of the attack on sufficiency of reasons is really an attack on the fact-finding process and inferences therefrom. It is indeed made possible by the fact that the actual process of reasoning is sufficiently revealed. On this, compare Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [129]-[130]: "[129] … When it is said that a judge did not give "sufficient" reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision". To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

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SALIENT FACTS 22 On 6 September 2002, the appellant, Samer Haris, attended a football game at the Sydney Showground at Homebush as a spectator. The venue was occupied by the respondent. 23 The game commenced at about 7.30pm. The appellant entered the stadium about five or ten minutes after the game had commenced with his friend, Queenie Rangihuna, who gave evidence at trial. 24 Once inside the stadium, the appellant encountered his cousin Fayej Faraj, and Mr Faraj's friend, Mustafa (Steve) Elrich, both of whom also gave evidence at trial. The appellant watched the game with Mr Faraj and Mr Elrich from a terraced area known as Bulldog Hill. Throughout the game, the appellant and his friends were either standing, sitting or resting upon a railing at the back of that area. 25 The evidence established that whilst the Hill was crowded, it was possible to move about freely. 26 The evidence established that one flare was set off at about 7pm, before the game commenced, another flare was set off at about 8.18pm, and a firework was set off at about 8.32pm; see also Primary Judgment, below. 27 At about 9.10pm, about ten minutes before the game ended, the appellant was struck in the left eye by a firework. The trial at first instance proceeded on the basis that the origin of the firework was of no significance. 28 As a result of the accident, the appellant lost sight in his left eye. 29 As to the security arrangements in force at the stadium in 2002, the respondent had a contract with WorkForce International ("WorkForce") to provide security officers. 30 On 6 September 2002, there were between 80 and 90 WorkForce staff in attendance at the stadium. These included three WorkForce employees who gave evidence at trial: Mr Wairu, the security co-ordinator for the stadium; Mr York, the business development officer; and Ms Coulter, a security officer and supervisor, who was usually stationed at the Gate A admission for Bulldog Hill for most games. 31 There were also 37 police present inside the stadium, two mounted police on the exterior and eight transit police also on the exterior (primarily at the railway station). Chief Inspector Ashton was Duty Commander at the game and gave evidence at trial. 32 The respondent met regularly with WorkForce, the police and the Royal Agricultural Society, from whom it leased the venue, specifically in the week leading up to a game. They also met at the end of every game to discuss any events which had occurred on the night.

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Failure to observe that appellant was in position of peril and failure to inspect Bulldog Hill to determine whether free of fireworks 46 The trial judge was satisfied that the respondent's security staff had responded reasonably to the flare set off at about 8.18pm and the firework set off at 8.32pm. Mr Wairu, the security co-ordinator for the stadium, gave evidence that if something like a firework went off, staff would normally "hang off to see if they'll do it again", being otherwise unable to identify the culprit. The trial judge considered that unless a culprit had been identified, it was difficult to contemplate what positive action could have been taken. 47 Exhibit O (the running sheet from the CCTV at the stadium) established that shortly after 8.32pm steps were being taken to identify a possible offender in a group of six. 48 The trial judge was not persuaded that the presence of any more security guards would necessarily have led to identification of the culprit/s. On this issue the judge had particular regard to the evidence of Mr York (the business development officer for WorkForce, who attended this game). He said that fans tend to get into a close group, someone ignites the flare and drops it on the ground, then they disperse, making it difficult to pinpoint anyone in the group. 49 Bulldog Hill was closed at around 7.43pm to ensure there was not an overload of patrons and the trial judge was not persuaded that reducing crowd density following the flare and firework would have been effective in preventing the discharge of further fireworks. 50 The trial judge was not persuaded that the respondent breached its duty of care to the appellant by its failure to: (a) Have the CEO of the Bulldogs, Steve Mortimer, who had addressed the crowd at the beginning of the game in an effort to keep everything under control, repeat his plea to the crowd after the flare and firework were discharged; (b) Emit a loudspeaker message to spectators to the effect that they should desist from lighting flares or fireworks and to warn them that security had not been able to ascertain whether there were any further dangerous items in the crowd.

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Having regard to the elaborate security arrangements in force and given the expectation that this was to be an emotional game, I find it inconceivable that security staff would have searched all bags to about the point of commencement of the game, then ceased while patrons were still entering." 77 Clearly enough the trial judge found cogent the fact that the appellant and Mr Rangihuna arrived only about five or ten minutes after the game had started. Moreover, there was evidence, albeit only as to practice rather than specific recollection, from a WorkForce security officer, Ms Coulter. Her evidence supported the commonsense conclusion that it would be unlikely that the security staff would go, on the one hand, to the trouble of searching all bags to the point of commencement of the game and then cease shortly thereafter while patrons were still entering. A presumption of continuance in searching was certainly open. That presumption does not depend upon the absence of unequivocal evidence to displace it. It is rather, as Dixon J put it in Axon v Axon (1937) 59 CLR 395 at 405 "but a deduction from probabilities and must always depend on the accompanying facts". 78 Turning to the probabilities and accompanying facts, it should be recognised that while the trial judge did not find any deliberate untruth, she did not on other matters accept Ms Rangihuna as an accurate witness. Thus her evidence was that during the game fire crackers were thrown about every ten minutes with three or four thrown onto the field. That evidence the trial judge declined to accept "having regard to the combined evidence of all the other witnesses on this issue". The trial judge described her evidence, with some evident scepticism, as "considerably more dramatic"; Judgment Red, 19. Therefore, while the trial judge did not elaborate further on the credit of the appellant or Ms Rangihuna, clearly enough the trial judge was in a position to determine these matters based on her observation of the witnesses, an advantage denied to this Court. 79 There is indeed some suggestion of exaggeration in Ms Rangihuna's actual evidence on the bag searching itself. The suggestion of exaggeration comes when the following question and answer occurred: Q. On the prior occasions when you had entered the showground of that year, had you seen anyone searching bags on entry? A. The only time I've ever had my bag searched at a football game was on a semi final with the New Zealand Warriors and I think it was the Cronulla Sharks. It was a semi final. [emphasis added]

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Q. So when you said to Mr Newton after things died down a bit, within ten minutes or twenty minutes of the game starting you would shift from the position at the gate back into the main stadium and hill area; is that so? A. Yes."; Black, 317.45-.56 82 She readily conceded that it would be no more than a generalisation that she had not left the gate within ten minutes of the game starting and that she did not have a specific recollection of that matter; Black, 318.17-.26. 83 Thus, while Ms Coulter's evidence was not specific to the occasion, it does support a general practice of continuing inspection where patrons were still coming into the game on what was, according to the evidence, a particularly busy night. 84 Ms Coulter also gave evidence that, depending on the game, there was anything from four to eight tables set up at Gate A (Black, 310.55). Patrons were told what they were allowed to bring in and what they were not allowed to bring in (Black, 311.5); patrons were asked specifically do they have bottles, cans, guns or flares (Black, 311.30); and all bags were searched (Black, 311.10), this being irrespective of the size of the bags (Black, 314.55). 85 There was also evidence from Mr Garry York, who was the Business Development Officer at WorkForce which provided labour hire for the football game. He described how, after successfully tendering to the Bulldogs for their services, a security procedure was developed in conjunction with the Royal Agriculture Society with two plans developed, depending upon the size of the crowd. There were 92 WorkForce staff on duty on 6 September 2002, including 47 security guards, and security was radio controlled; Black 292-3. Mr York gave evidence of attending Gate A where a number of security personnel were there to do bag searches. Mr York stated that he "saw a number of tables set up. Our guards sectioned off the area that was appropriate for bag searches and they were conducting bag searches." There were "no exceptions, every person with bag - will be opened and searched"; Black, 295. 86 He showed an awareness of legal entitlements so far as searching bags were concerned whereby "we have to ask the person to place the bag on the table. That person will open the bag and we will stand back and they will move items in and out of the bag at that stage. We won't enter the bags with our hands and we will only look at the items that are in the bag. They will repack the bag [sic] and either go through the turnstile or have the items confiscated." Black, 295.38-.47. 87 That the system could not be foolproof was clear from Mr York's negative answers to the question, "Were you entitled to pat people down or put your hand in their pockets or demand that they empty their pockets", Black, 295.48-.56. 88 Importantly, he then gave this answer: Q. As far as staff is concerned what is the procedure as far as bag searching or no bag searching is concerned after the start of the game? A. The bag searching will continue. That doesn't stop. The only difference after the game starts is that at both gates, our ticket takers knock off at - or leave their duties at half-time, just before half-time, and then security takes over those entrances." Black, 296.51-.59. 89 In answer to the question, "Bag searching continues up to what time as far as doing the actual running of the game?" he replied "To the completion of the game, yep." Black, 297.12-.16. 90 Finally, I should refer to Mr Faraj's evidence. He agreed that "there were some three or four inspection tables there with three or four security on each table" (Black, 75.20-.30). Though he was not a late arrival that does not detract from his evidence having regard to the system to which Mr York attested and also Ms Coulter.

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Evidence as to body searches - ground 4. 92 This ground is essentially that the trial judge failed to give reasons as to why she accepted that the security officers did not have the power to conduct body searches, etc. in light of the evidence of Chief Inspector Ashton. 93 This ground refers to the evidence of Mr Ashton, a Chief Inspector of Police. He was called by the respondent and gave this evidence: "However on that venue it's a licensed premises covered by a governor's licence which gives you the ability to search all persons entering the premises." 94 The complaint is that in accepting that security personnel did not have the power to conduct body searches or require patrons to empty their pockets, the trial judge "seems to have accepted the erroneous evidence of the security officers over the evidence of Chief Inspector Ashton. Her Honour failed to give any reasons for doing this and failed to deal with the Chief Inspector's evidence at all in her judgment on this issue. In doing so, Her Honour has not correctly directed herself as to the manner in which she should have approached the evidence nor considered the Chief Inspector's evidence as to these being licensed premises and the powers flowing therefrom". 95 I do not consider that this ground has any substance. 96 The underlying premise is that it would have been negligent of security officers not to conduct individual body searches on the basis that, according to the evidence of Chief Inspector Ashton, they did have such a power. Even if it is assumed that security staff did have that power, notwithstanding that there was no proper analysis of whether the whole or any part of the venue was governed by a governor's license nor specific reason given for such a license permitting body searches, that does not establish negligence in failing to exercise that power. As was put in argument, it would be totally impractical not only to inspect bags but also to carry out an individual body search of each person as he or she goes through the gate. We are not here talking about some individual whose very appearance and behaviour excited suspicion, there being no evidence of that. Accepting the undemanding requirement of foreseeability of risk, nonetheless "what a reasonable man would do by way of response to the risk" necessarily has regard, not only the magnitude of the risk and the degree of probability of its occurrence, but also to "the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have"; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 97 Here, there is undoubtedly the possibility that harm could occur from fireworks, which could not be said to be insignificant. That said, the likelihood of serious harm would be relatively rare, though not so rare as to obviate the need for reasonable precautions. However, I consider that it was open to the trial judge to conclude that the burden of taking the precaution of a body search in every case, even if legally permissible, is not what a reasonable person would do by way of response to that risk. This conclusion is strongly supported by Chief Inspector Ashton's evidence at Black, 285.33 that "physically it would be impossible to search all persons …".

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Her Honour dealt with the amount of security staff but did not deal at all with the issue of a reduction in the size of the crowd in the area where the Appellant was injured other than at p.17 of the judgment but failed to give reasons as to why she was not persuaded that reducing the crowd density would have been effective in preventing the further discharge of fireworks. The expert evidence of Mr Peter Smith for the Appellant recommended reducing crowd density in the area, however, her Honour failed to give reasons as to why this was not persuasive." 110 What is at issue here is the steps that should have been taken when the firework was set off at about 8.32pm or the earlier flare at about 8.18pm, these being the events that occurred after the game commenced. 111 The trial judge accepted the evidence of Mr Wairu. His evidence, noted by the trial judge (Judgment Red, 25-6) was that after the flare on the hill went off at 8.18pm he secured the area in ten seconds. He said that following the firework at 8.32pm, action was taken by a supervisor, whom he joined on Bulldog Hill where these events were occurring. The trial judge then referred to the practice of security guards normally standing off to see if they can identify the culprit by his or her doing it again, pointing out that it is difficult to see what positive action could be taken if the culprit was not identified. That was a conclusion which the trial judge evidently accepted based on Mr Wairu's evidence. 112 The trial judge then recorded the evidence that shortly after 8.32pm, "steps were being taken in the security room to identify a possible offender in a group of six"; Judgment Red, 26. 113 The trial judge rejected the plaintiff's submission that because the security guards could not identify who had lit the firework there must have been an insufficient number of security personnel present. She reached that conclusion having regard to 58 minutes of security footage which she viewed and the totality of the evidence. She stated that she was not persuaded that the presence of any more security guards would have necessarily led to identification of the culprit or culprits. In support of that she states that she had "particular regard to the evidence of Mr York who said that the fans tend to get into a close group, someone ignites the flare and drops it on the ground, then they disperse, making it difficult to pinpoint anyone in the group"; Judgment Red, 27. 114 The trial judge then concluded against the proposition that if the security guards could not determine who had lit the earlier firework then a decision should have been made to reduce the density of the ground on Bulldog Hill "in order the culprits could have been identified or more closely monitored"; Red, 27. She concluded: "However, the evidence established that Bulldog Hill had been closed at around 7.43pm and Mr York said that this was done to ensure that there was not an overload of patrons and I am not persuaded that reducing the crowd density following the flare and fireworks would have been effective in preventing the discharge of further fireworks." (Judgment, Red, 27) 115 A reading of the expert evidence of Mr Smith does not take the matter further. He suggests re-configuring Bulldog Hill from a place of standing accommodation to that of a seated area as being integral to the security plan; Blue, 119. But that does not bear upon whether at the time of the incident steps should have been taken to reduce crowd density in the area. 116 As to ground 8, to the effect that the trial judge erred in finding that stopping the game and/or re-directing fans to other parts of the ground would not have been of assistance, and misconstrued the police evidence in that regard, the contention was properly disposed of by the trial judge in these terms: "(c) Failure to stop the game and/or remove patrons from Bulldog Hill

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However, I am not persuaded that the failure by the defendant to take any of these steps constituted a breach of the duty of care owed the plaintiff." (Judgment Red, 27-28 120 I would add that while these additional steps were certainly open, (a) there is no evidence that it was common practice to take those steps, (b) Mr Mortimer's first plea in fact went unheeded as we know from the events that subsequently occurred, (c) there is no evidence of the practicability of evacuating the relevant part of the venue, (d) the evidence was that the NRL and its appointed official, the match referee, but not the respondent had the power to stop the game. 121 In those circumstances it is understandable that the tribunal of fact, being the trial judge, was unsatisfied that a reasonable person would have taken these steps by way of response to the risk. The trial judge moreover gave sufficient reasons for being unconvinced on that matter to satisfy any requirement to give sufficient reasons. Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 reminds us that "reasons need not necessarily be lengthy or elaborate" but "relate to the function to be served by the giving of reasons". When needing to refer to relevant evidence "there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered". There is no tenable suggestion that the trial judge failed sufficiently to refer to evidence "important or critical to the proper determination of the matter". Decisions on appellate review, such as Fox v Percy (2003) 214 CLR 118, bear more on the adequacy of reasons than their sufficiency. Sufficiency of reasons is concerned with whether there is a process of reasoning sufficiently revealed to permit appellate review and detect appellable error; rather like the invocation to show one's workings in answering a problem in maths so the source of any error is apparent. Reasons are likely to be sufficient precisely because they are explicit enough to permit the actual appellable error to be revealed; for example in revealing a failure to take account of incontrovertible facts that demonstrates that the trial judge's conclusions were erroneous. Another species of appellable error is failure to engage with or enter into the contested issues; see Maylan v The Nutrasweet Company [2000] NSWCA 337 at [61]-[68], Jones v Bradley [2003] NSWCA 81 at [128]-[131]. It too represents an insufficiency of reasons. 122 This taxonomy has significance. A deficiency in reasons that are nonetheless sufficient but adjudged wrong, reflects judicial fallibility and sometimes simply legitimate difference in the leeways of judicial choice. It is addressed by the hierarchy of appeals. Failure to give sufficient reasons however operates at a more basic level, as a failure in the judicial process itself. It should be reserved in appeal grounds for the cases that truly warrant that label.

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