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: