Hobona Pty Limited & Anor v Richard Gremmo

LEGISLATION CITED: District Court Act 1973 (NSW) s 127(2)(c)

Hobona Pty Limited (Appellant) PARTIES: Peter Brian Bingham (Second Appellant) Richard Gremmo (Respondent)

COUNSEL: P Greenwood SC; D Kelly (First and Second Appellants) D I Cassidy QC; B Ralston (Respondent)

SOLICITORS: Moray & Agnew (First and Second Appellants) Grech Partners (Respondent)

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40788/05

BEAZLEY JA IPP JA McCOLL JA

Ex tempore 25 August 2006 HOBONA PTY LIMITED & ANOR v RICHARD GREMMO Judgment 1 BEAZLEY JA: The opponent in this matter, Richard Gremmo, was injured on 24 December 2000 whilst he was a patron at the Castle Hill Tavern which is a business conducted by the first claimant and of which the second claimant is the licensee. At the time of the incident which resulted in the injury, the opponent was standing in an area which was usually the carpark but which had been fenced off that night for the service of alcohol. There were about 300 people in this fenced off area of the tavern at the time. The opponent was injured when he was struck by a person who in an unprovoked act of violence, and I will use a colloquial phrase, "took a swing" at another person whilst he had a glass in his hand and the opponent became the unfortunate victim of the swinging action. 2 It is possible that the injury occurred when the glass actually left the hand of the assailant but the precise details of how the accident occurred is not of relevance in determining whether, in the circumstances, the claimants are liable in damages to the opponent. 3 The opponent brought proceedings against both claimants for damages for the injuries that he suffered on that night. Proceedings were heard in the District Court before McLoughlin DCJ who delivered judgment in the matter on 9 September 2005. His Honour found that the claimants had breached their duty of care and that the opponent was entitled to damages. His Honour awarded damages in an amount just under $40,000. The matter comes before this court by way of an application for leave to appeal and, if leave is granted, the hearing of the appeal. 4 The factual circumstances that occurred on the night were recorded by his Honour when he reviewed the evidence of the witnesses. What appears to have happened was as follows. In the course of the evening, a female employee was sexually harassed or assaulted, causing, it seems, a heightened atmosphere in the tavern for a while. Some time later, a female patron was assaulted and sexually harassed by another patron. It appears that one or more of the patrons took objection to that having occurred and made their objections known to the perpetrator of that particular assault. It appears that a scuffle broke out, which included the trading of punches, amongst a small number of these patrons, possibly confined to two or three people. It seems that one of the patrons, a Sean L'Estrange, tried to get involved in the dispute that had erupted and the opponent attempted to restrain him. In doing so there is no suggestion that the opponent's actions were violent or physical but there was an attempt to have Sean L'Estrange stand back from the fight that was going on. However Sean L'Estrange's brother, Wade L'Estrange, did get involved in the altercation. This all appears to have happened over a fairly short space of time. The evidence is clearly established that security guards arrived within a very short time of the altercation having broken out. Wade L'Estrange himself gave evidence that this was within 20 to 30 seconds. 5 The evidence varied a little between the witnesses as to how many security guards arrived but it was clear that at least four security guards arrived. Two or three of those security guards took steps to restrain some of the patrons who were involved in the physical altercation. Those two security guards commenced to remove three of the persons involved in the physical altercation including Wade L'Estrange from the area. Two security guards remained. It is not clear precisely what was happening at that point but there is no suggestion in the evidence that large numbers of persons were involved or that there was any physical altercation or scuffling continuing once the three persons to whom I have referred were commenced to be removed from the area. It appears that what then happened was that another patron picked up a glass from a table, and in a swinging action with his arm, which seemed to have been directed at the head of Wade L'Estrange, connected with Wade L'Estrange's head and then either struck the opponent or let go of the glass, which in turn struck the opponent and caused him injury. 6 The trial judge made a finding that there was nothing in the conduct of the assailant that indicated to anybody that he was likely to do what he did. His Honour considered however that that begged the question as to whether there had been negligence in the manner in which the security guards responded to the situation. His Honour found that the conduct of the security guards was such that they did not attempt to control the crowd properly stating that the two or three security guards were only concerned with the removal of persons from the area leaving a number of other potential protagonists unescorted and uncontrolled. 7 His Honour made a further finding that the security guards failed to properly bring the altercation under control and allowed the situation to develop where the opponent was struck with the schooner glass wielded by the unknown person after that glass had struck Wade L'Estrange. 8 His Honour also made a finding that what was readily clear was that at the time the security personnel intervened there was: "… a smouldering ongoing problem between a number of people that had to be controlled otherwise violence could erupt".

His Honour then made this finding: "… [the] evidence indicates that the security personnel well knew at the time that they intervened that a number of persons were in and about the fracas. In my view they did not conduct themselves appropriately to contain it for the matters that I have referred to. In turning their backs on this group of angry persons, whose anger was smouldering and whom had been consuming alcohol, to concentrate on one person each when many other people were in and about the melee, altercation or fracas, whatever it be called, that had not been brought under control was a failure to properly contain the situation and create a scenario for injury". 9 In my opinion these findings, particularly that there was a smouldering situation involving angry persons who had not been brought under control by the security agents, was a finding made without any evidentiary foundation. 10 The claimants had anticipated a large crowd on this evening, it being Christmas Eve. They had provided additional accommodation to house a larger crowd. There is no doubt that they had a duty of care to the patrons on that evening to take reasonable steps to ensure their safety. It was reasonably foreseeable that on such an evening the crowd could be convivial, ebullient and that there could potentially be some violence. They needed to take reasonable steps in relation to that risk. The claimants responded to that risk by engaging additional security guards. There was a finding that those security guards were properly trained and there was no challenge that they were insufficient in number. The finding of his Honour was that those security guards were negligent in the manner in which they managed the particular situation that arose. 11 When a volatile situation such as this occurs a question of judgment is involved as to how it ought to be dealt with. The security guards gave evidence as to the steps that they took and in particular that, in their judgment, the best response to the situation that developed was to remove the main protagonists. They took those steps and in addition two security guards remained in the precise area where the altercation had occurred. There was no evidence that those security guards who remained were not appropriately controlling what continued to go on. There was also evidence that there were two other security guards a short distance away possibly no more than about ten metres. 12 In my opinion, there was no evidence that the security guards acted negligently in the manner in which they controlled the situation which developed. It was not negligent in my opinion for them to have failed to observe that one of the patrons who had not hitherto been observed acting in any violent way, or otherwise misconducting himself in any way, would, without provocation, do what he did in taking a swing with a glass in his hand. Having regard to his Honour's finding that there was nothing to indicate that the assailant was likely to do what he in fact did, there is no basis for his Honour's finding of what in effect amounts to a casual act of negligence on behalf of the security personnel. For those reasons I would reject that aspect of breach found by his Honour. 13 His Honour independently found that the claimants should have used only plastic glasses in this area on this particular night. There was evidence before his Honour that the use of plastic glasses was a response that could have been taken in an attempt to minimise the risk of assault in this temporary area. That was the evidence of Mr Harris who was a security expert called on behalf of the opponent. 14 The claimants contend that there were two responses to his Honour's finding that they should have used plastic containers rather than glasses in this area. The first was that, on the claimants' submission, the use of plastic containers was only one of a range of steps that could have been taken; it was not suggested that Mr Harris said that it was a necessary step that should have been taken in all of the circumstances. It was submitted that where other appropriate steps had been taken, and in particular the engagement of appropriately trained security personnel on the night, it was not necessary to take all other measures that might be able to be thought of. 15 The claimants made another response to his Honour's finding, namely, from the claimants' point of view, there were good reasons not to use plastic containers as one of the responses that they could have taken to the risk of injury that was foreseeable on that night. Evidence was given by the claimants that the patrons were not confined to the use of that area but were permitted to move in and about the remainder of the tavern and the beer garden. The evidence was that if plastic cups were required in that area it would prevent the free movement of patrons throughout the premises and was likely to increase the probability of higher ratios of men in areas designated for plastic only, with the possible consequence of an increase in violence. 16 In my opinion, both these submissions are well based. It seems that to require the use of plastic would have been a possible but an extreme precaution in circumstances where other appropriate precautions had been taken in the engagement of properly trained security guards. It also may have been an unreasonable precaution in circumstances where the evidence was that that could have had an effect of containing a group of persons in one area, a group of persons who potentially may have become violent during the evening if contained within the one area. 17 The claimants have come to the Court seeking leave to appeal because the amount of the verdict is less than $100,000: see the District Court Act 1973 (NSW) s 127(2)(c). The Court sometimes takes the view that in smaller claims, leave will not be granted for a variety of reasons, including the need for finality of litigation and to minimise costs in small claims, by limiting the possibility of retrials after a successful appeal. However, the Court will usually grant leave to appeal where there has been a clear miscarriage of justice. 18 In my opinion, his Honour's findings in relation to the actions of the security guards were not based upon the evidence and were findings which, in my opinion, were wrong. His finding in relation to the use of plastic glasses was such as to impose an unreasonable standard of care in all of the circumstances. For both of those reasons I am of the view that there would be a miscarriage of justice if leave to appeal was not granted. In those circumstances I would propose the following orders:

3. The verdict and judgment of the trial judge be set aside;

4. Verdict and judgment be entered for the claimants;

5. The opponent pay the claimants' costs of the application for leave to appeal and of the appeal;

6. The opponent pay the costs of the trial below. The opponent is to have a certificate under the Suitors' Fund Act 1951 (NSW) in relation to those costs, if so entitled. 19 IPP JA: The opponent's injuries were sustained on Christmas Eve in an enclosed carpark at the Castle Hill Tavern. Three hundred guests were present and the claimant provided alcohol to them. One of the people present, in an aberrant random act took a "swing", at the "crowd". The opponent unfortunately happened to be in the way of the swing. 20 One of the grounds of negligence that the judge upheld was that the claimant tavern should not have served liquor in glass containers. The judge held that the liquor should have been provided in plastic cups. There was no evidence that in Australia plastic cups are ordinarily used by taverns or like establishments to serve liquor. An expert did say that this was one of the steps that a tavern could take for the safety of the guests. Plainly, that is a possible precaution. 21 There was evidence that many people preferred drinking alcohol from glass containers rather than plastic cups. A tavern owner that served its alcohol in plastic containers could well lose popularity and be regarded as an establishment of lesser quality. Plastic containers carry with them their own problems. The occasion was not one involving thousands of persons where emotions would inevitably become inflamed or over-excited. This situation was quite different from important sports games or popular concepts where completely different considerations arise. 22 The claimant had retained at least six security guards to control the 300 persons present. These guards were dressed in easily identifiable uniforms, two were at the entrance to the carpark area, their presence must have been known to all. There was no indication that violence could erupt that evening, indeed as I have said the attack on the opponent was unexpected and apparently unintended. The occasion was nothing more than Christmas Eve at a tavern in Australia where a few hundred people had gathered to enjoy drinks in the open air. 23 In my view, in these circumstances, to require a tavern to serve liquor in plastic glasses is imposing far too high an unrealistic standard of care. I would add that the finding that the plastic glasses should have been provided involves impermissible hindsight reasoning. In my view the precautions that the claimant took were reasonable in all the circumstances and the trial judge erred in finding that plastic glasses should have been provided. 24 I agree with the reasons expressed by Beazley JA. The comments that I have made are in addition to what her Honour has stated. I agree with the orders she has proposed. 25 McCOLL JA: I agree with Justice Beazley and with Justice Ipp. 26 BEAZLEY JA: The orders of the court are those I have proposed.

COUNSEL ADDRESSED ON COSTS 27 BEAZLEY JA: Mr Cassidy, on behalf of the opponent, has made an application that the costs order that I have made in relation to the application for leave to appeal be varied in circumstances where he submitted that the opponent was required to bear the burden of making the submissions on that issue to the Court. I would reject that application. 28 The approach taken by the Court in having Mr Cassidy deal with the application for leave to appeal first, without first hearing Mr Greenwood, was taken because the Court had already had an opportunity to review the judgment and the written submissions and had formed a view such that it considered the convenient dispatch of the proceedings today was to hear Mr Cassidy first. The claimants' written submissions were appropriate and adequate such as to justify the course which the Court took. I would propose that that application be rejected. 29 IPP JA: I agree. 30 McCOLL JA: I also agree. **********

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