Newcastle Entertainment Security Pty Limited v Simpson

The Venue and Security Arrangements 53 It is necessary at this point to deal in more detail with the layout of the concert venue and the security arrangements for the night. 54 The stage was located at the front of the auditorium. It was approximately forty feet wide and was "quite elevated". The plaintiff estimated that it was about two metres high. Large speaker stacks were located at either end of the stage. The seating was arranged in three separate areas - one block of seating at the back of the auditorium and one on either side. The mosh pit was located in the middle, bounded by a crash barrier which ran parallel to the stage and the three blocks of seating. The barrier was constructed of metal tubes and was placed about one and a half to two metres out from the stage. It was about four feet high, and about sixty feet long, extending beyond the width of the stage, across to the side seating. A long step or elevated area had been placed on the stage side of the barrier to enable the security officers to see over the crowd. 55 The lighting was, apparently, typical of a concert of this nature. The friend who accompanied the plaintiff to the concert said "the stage was lit up with different coloured flashing lights" or "strobe lights" but that apart from an occasional flashing of that lighting into the audience, there was no other lighting in the auditorium during the concert. He said that in these conditions you could see "the silhouette of the crowd. You could see the crowd moving". He said "it just looked like one big motion". 56 Mr Jennings, the security firm's managing director, said that the lighting was "very sharp" and that from the crowd barrier "you can see back a good 10, 15, 20 metres from the wash [of light] off the stage". Ms Cornish, the centre manager's front-of-house supervisor described the lighting as giving "quite a clear view when I was near the stage". The general manager of the centre, Mr Wharton, said "it was quite a clear view [of the crowd] really because the stage is quite bright and because it's projecting away from the area that I was viewing from then obviously it gave a fairly well lit area". 57 Prior to the night of the concert, the centre manager's Events Manager, Mr Reading, undertook some research on the band, including looking at promotional film clips. He realised: "that the nature of the act was a lot heavier as far as the audience action, reaction to the band would be and at that stage I believe that in our interests it would be best to go and probably try and get to see the band prior to coming to Newcastle." 58 Accordingly, Mr Reading and Mr Jennings travelled to Brisbane and attended Pantera's concert at the Festival Centre. As a result of what they observed, particularly in relation to the audience's participation in crowd surfing, they decided to increase the security arrangements at the Newcastle concert. Thirty one security officers were engaged, eighteen of whom were positioned at the crash barrier during the main performance, about an arms length apart. This distance was necessary to give them room to manoeuvre when they took hold of a surfer and placed the person on the ground. 59 On the night of the concert, the mosh pit was "packed with people". The plaintiff estimated there "would've been … a thousand, thousands". Mr Reading anticipated that by the time Pantera's performance commenced about 95% of the crowd would have been in the mosh pit. He said that despite the large number of people "the entire floor area wasn't tightly compacted but the area adjacent to the crash barrier … was very tightly packed". The evidence also indicated the crowd was more congested in the area in front of the stage and thinner at the edges. Mr Reading estimated that in the mosh pit the crowd was about seventy to eighty people across the front of the stage and about thirty people deep. 60 Several witnesses gave evidence as to the extent to which crowd surfing occurred during the Pantera performance. The young friend who accompanied the plaintiff said that whilst he was seated he saw patrons engaging in crowd surfing, but that there was not "a lot". Mr Reading said that "probably" a person was going over the barrier "every four, five seconds". Mr Wharton said that from his observations "there were no more than three or four people at a time that came across at once and that could have been more in other periods". He also said "the people … tend to come through and basically come across primarily in the middle area". Mr Jennings said that during Pantera's performance, "it wasn't unusual to have half a dozen people come over the crash barrier at the one time and that was constant from the start of Pantera to the end of Pantera. It was very, very like a constant wave of water coming over the crash barrier". 61 I have already mentioned that the arrival of surfers at the crash barriers tended to be concentrated towards the middle. One of the key roles of the security personnel at the outer limits of the stage was: "… to actually point at people. It's not simply left to the people in the middle to notice someone is coming over. Someone is telling them that there's someone on their way. So there is quite a bit of communication in that area. So those sort of situations are quite well managed". 62 Mr Reading said the function which the security officers performed at the crash barrier was to "assist the audience" to safely complete the crowd surfing activity by helping them land safely across the barrier and sending them back into the audience. He said: "The security guards will stand up on the step and reach across and assist that the person over by the belt or whatever. Grab hold of their feet. The audience then will just, they keep coming on their way towards the barrier and the security guards then just, usually one or two sometimes three, just help them down on their feet in front of the stage. They're then patted on the back and sent along to the side and back into the audience again." 63 Mr Jennings said that there was a good view into the crowd from the step on the stage side of the crash barrier. He was of the opinion that the eighteen security officers "successfully [met] the requirements that were necessary on that night for crowd surfing". He was "quite satisfied with the numbers [of security officers] that we had [at] the crash barrier". Mr Jennings also said that during the night he observed that all of the crowd surfers were met by the security officers, that he did not see anyone thrown over and at no stage did he feel the activity was getting out of hand. 64 Mr Jennings conceded in cross-examination that apparently none of the security officers either saw or helped the plaintiff down when he got to the barrier. On the evidence, he was the only person who saw the plaintiff at all. He said the first he saw of the plaintiff was about half way between the centre and the end of the stage, when the plaintiff was "coming up from a kneeling position and scampering at great speed to the edge of the barricade to the gates that allow you access back onto the floor". 65 His Honour found that: "During the evening many crowd surfers were handled, apparently without incident. They could be seen coming as they were lifted over the crowd. The lighting was good, and there appears to have been no problem in observing and receiving them without incident." 66 His Honour also found that: "[a]t no stage did the crowd surfers arrive at the barrier in such numbers so as to create a situation which involved loss of control by the security officers."

Liability of the Security Firm 67 The security firm did not dispute that it owed a duty of care to the plaintiff. However, senior counsel reminded the Court that the duty imposed upon his client was a duty to take reasonable care, not a duty to obviate all possible danger. He submitted that crowd surfing was inherently dangerous and that the security firm had satisfied its duty of care by providing an adequate security system. In this regard he relied upon the trial judge's finding in favour of the security firm that: "[t]he decision to place 18 security men behind the barrier seems entirely appropriate having regard to the space available, and the ability to handle the incoming crowd surfers over the barrier. Additional security officers would have been counter-productive as they would simply have got in each other's road and would have prevented the efficient receiving of the crowd surfers." 68 However, senior counsel for the security firm attacked the trial judge's finding that there had been inadvertence or negligence by one or more of the security officers. This attack was made on three separate bases. First, it was submitted that the trial judge did not come to terms with "the critical feature of the plaintiff's arrival at the barrier - [that] the plaintiff was thrown or flung by the crowd - not 'handed'" to the security officers. He submitted that there was no evidence to support the trial judge's finding that surfers were "handed" to security officers who then lifted them over the barrier without incident. Nor, he submitted, was there evidence that at no stage did the crowd surfers arrive in such numbers as to create a "loss of control by security officers". 69 Secondly, it was submitted that if the trial judge did consider and resolve the critical feature of the plaintiff's case, he failed to give adequate reasons for his finding. 70 Thirdly, it was submitted that his Honour erroneously invoked and applied the principle in Jones v Dunkel.

Failure to Consider the Essential Issue in the Plaintiff's Case 71 As I understand this submission, the security firm alleges that the trial judge made two findings of fact (to which I have referred above) unsupported by evidence and an erroneous finding of fact (that the crowd "let go of" the plaintiff, when the plaintiff said he was thrown). These errors, according to the submission, meant that the trial judge failed to deal with the plaintiff's case on its true basis. It was submitted that the true situation was that the plaintiff was engaging in an inherently dangerous activity in such a way (by struggling to be let free and then being "thrown" by the crowd over the barrier) that the security firm's system, found by his Honour to be adequate in all the circumstances, simply did not and could not be expected to deal with such dramatic and unexpected circumstances as caused the plaintiff's injury. 72 It is convenient to deal first with the trial judge's finding that the crowd "let go" of the plaintiff. 73 The evidence as to what happens to a 'surfer' upon coming to the end of the crowd and into the hands of the security officers indicates that crowd surfing is not a genteel activity. Sometimes the surfer is face up. Sometimes face down. The crowd is usually moving as an homogenous mass, the evidence in this case being that it was moving about five to six feet from left to right. The crowd would either "put their hands up" to move the surfer forward or "alternatively put their heads down to protect themselves". At the time the surfers are "received" by the security officers "their feet or sometimes their arms will be flailing about the place". 74 The landing itself can be hazardous. Sometimes a person is lowered to the ground head-first, sometimes feet-first. By the end of the night the area near the barrier is: "usually full of shoes and clothes and hats and watches and all sorts of items from those that have come over." 75 The plaintiff described his sensation of going over the barrier as being "thrown". Having regard to the descriptions of the boisterous nature of the activity by those in control of the event, the plaintiff's perception of being "thrown" is understandable, particularly as he said he was an unwilling participant in the activity and given the speed of the incident. The trial judge's description of the crowd letting go of him is not inconsistent with the plaintiff's description of what happened to him. He was clearly being propelled forward. He had no means of controlling his forward progression, his momentum, or what happened to him at the barrier. Those holding him obviously let go of him at the barrier and he fell forward. To a person hoisted in the air and moved forward, with no means of control, it was likely that the sensation he felt when the crowd was no longer holding him was one of being thrown. In my opinion, there is no substance in the distinction which senior counsel sought to make on this point and his Honour was not led into error in that regard.

Findings Unsupported by the Evidence 76 The trial judge found that surfers were handed to security officers who lifted them over the barrier without incident. He also found that at no stage did the crowd surfers arrive in such numbers as to create a loss of control by the security officers. 77 Senior counsel for the security firm submitted that these findings were unsupported by the evidence. He relied upon the following as being evidence which supported contrary findings: · six people at a time, constantly at the relevant time, came over the barrier; · it was like a constant wave of water; · even in ordinary circumstances, people coming over the crash barrier still ended up on the floor after they were put down; · shoes, clothes, hats, watches and all sorts of items got stuck in or fell near the barrier; · the activity was "extremely intensive"; · security officers had more to do than catch crowd surfers - people at the front of the crowd "might become distressed, due to heat, exhaustion, dehydration" in which case the person has to be "wrestled … out of the pit" by the security officers. 78 Senior counsel appears to acknowledge, however, that there was evidence to support his Honour's finding as he further submitted: "The evidence principally relied on by his Honour to find no "loss of control" is Jennings … it would seem. But that evidence was given in the context of what Jennings saw ." 79 The point senior counsel sought to make was that Mr Jennings was not always at the barrier. He made the same point in relation to Mr Wharton and Mr Reading, submitting that, in the case of Mr Wharton "he spoke of the general situation on the night and was absent from the barrier at the time" of the accident; and in the case of Mr Reading "he was in the concert (and not always at the barrier) only 75% of the time". 80 In my opinion this submission must fail. Not only was there evidence to support his Honour's findings, there was no evidence to the contrary. The description of how the security officers managed their task indicated the situation was managed with care. Mr Jennings gave evidence that "[n]inety percent of the receiving is done in a horizontal cradling position and from there they are lifted and turned alternately left or right to the floor…"; Mr Wharton said that space was left between the crash barrier and the stage: "sufficient for a security officer to be able to move from his standing position step up onto the step of the crowd control barrier, lift the person down and still have the person behind them - still a little bit of room ... so it is specifically designed to ensure that there is sufficient room for that sort of movement." 81 In addition, although the consistent tenor of the evidence was that crowd surfing is a frenetic activity, all the witnesses called for the security firm and the centre manager said that the concert was "under control"; that it was "well managed"; that there was a "good view into the crowd"; that, according to Mr Jennings the security officers "successfully [met] the requirements that were necessary on that night for crowd surfing"; that at no stage did he feel the activity "was getting out of hand"; that, according to Mr Wharton, "the situation…hasn't occurred…[where] more than one crowd surfer arrived or more crowd surfers arrived than could be accommodated by the security men to meet them". Indeed, the security firm received a certificate of merit from the centre manager for "excellent service" accompanied by a letter of congratulation "for the outstanding security performance at the Pantera concert on 11th November 1994". 82 In my opinion, it does not assist the security firm's case to assert that there were times when these witnesses were not present. None of them sought to qualify their evidence by stating that matters could have been out of control, or the barrier not properly attended during periods they were not there or that, from time to time, the system was insufficient or inadequate. Their evidence was that this was a well-managed concert, with a properly conceived and implemented security arrangement, and at all times the situation was under control. Had the type of evidence to which senior counsel alluded been given, the security firm and centre manager might have run a very real risk of a finding that the system was not adequate and found negligent on that account. 83 As the security firm has failed to establish that his Honour erred in the manner alleged, there is nothing left of the submission that his Honour failed "to come to terms with the critical feature of the [plaintiff's] case". His Honour clearly did so. The difficulty which confronted the security firm, both at trial and on appeal, was that the mere fact it established that it had put in place an adequate system and had the situation "under control" did not, of itself, establish that there was no breach of duty. It was open on the evidence for his Honour to infer, as he did, that the security firm breached its duty to the plaintiff by a casual act of negligence.

Failure to Give Reasons 84 The nature of the trial judge's duty to give reasons was stated by McHugh JA (as he then was) in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 at 280: "If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex Parte Powter: Re Powter (1945) 46 SR (NSW) 1 at 5… But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701,713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish 'the reasons for the decision', declared (at 410) that: '… The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.'" 85 In my opinion, his Honour's reasoning process is obvious. First, he explained the nature of the activity. He referred to the evidence that indicated it was a dangerous activity which required appropriate management. He considered the system which was put in place to meet the danger and held that the system was adequate. He considered the manner in which the system was implemented and held that, given those matters, the only explanation for the accident was some inadvertence or negligence. All that is plain on his judgment and provides an adequate exposition of his Honour's reasoning process so as to "enable the parties and the courts to see what matters he has taken into consideration". Accordingly, this challenge also fails. 86 That leaves the final point on this issue.

Jones v Dunkel 87 Senior counsel for the security firm submitted that his Honour erroneously applied the principle in Jones v Dunkel without considering the necessary pre-conditions for its operation, and drew inferences in favour of the plaintiff, when there were, in fact, "conflicting inferences of equal degree of probability, so that the choice between them is a mere matter of conjecture": see Jones v Dunkel per Dixon CJ at 304. 88 The purported offending passage was the core finding of breach of duty which has already been set out, namely that there was "simply no explanation for the plaintiff's accident other than some inadvertence or negligent conduct on the part of [the security firm]". 89 In reaching this conclusion his Honour did not make any reference to the principle in Jones v Dunkel, either expressly or by reference to a failure to call witnesses. It was not suggested that a Jones v Dunkel submission was made at trial. Nor do I consider that his Honour was invoking the principle in this passage. Rather, he was enumerating the matters which led him to conclude that the accident could not have happened but for negligence. 90 Accordingly, I reject this challenge to his Honour's determination.

Voluntary Assumption of Risk and Contributory Negligence 91 The security firm also relied upon the defence of voluntary assumption of risk. This submission was based, in the main, upon the premise that the plaintiff's evidence that he was an involuntary and unwilling participant in crowd surfing should have been rejected because his Honour had made adverse findings as to the plaintiff's credit. 92 His Honour did remark that "in the course of his evidence the [plaintiff] gave unsatisfactory answers", that there were inconsistencies and that "he was not a totally reliable recounter". However, his Honour considered that the unreliability in the plaintiff's evidence only went to peripheral matters. His evidence that he was an unwilling participant in the crowd surfing was central to his case. Accordingly, if that evidence is accepted, as it was by the trial judge, there is no factual basis upon which the defence of voluntary assumption of risk can succeed. 93 The security firm submitted however, that, having regard to the evidence of Mr Jennings, which was different from the plaintiff's, his Honour misused the advantage he had as trial judge (Abalos v Australian Postal Commission; Devries v Australian National Railways Commission) and should have rejected the plaintiff's evidence that he was an involuntary participant in the activity. The rule in Devries states (at 479) that a trial judge's finding: "which depends to any substantial degree on the credibility of the witness… must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' [S.S. Hontestroom v S. S. Sagaporach [1927] AC 37 at p 47] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' [Brunskill (1985) 89 ALJR at 844; 62 ALR at 57]." 94 Counsel for the security firm did not even attempt to meet the rule in Devries. That rule makes it clear that it is not enough to successfully attack a trial judge's finding of credit to merely recite evidence contrary to that accepted by the trial judge. That was all that was sought to be done in this case. However, two further things should be said. First, there was independent corroborative evidence that surfers were sometimes involuntarily hoisted up and set in motion across the crowd. Secondly, as I have previously stated, Mr Jennings' evidence does not, overall, bear the interpretation sought to be placed on it by the security firm. In those circumstances this challenge must fail. 95 The same submission is made in respect of contributory negligence and for the same reasons is rejected.

Rejection of the Security Firm's Claim to Indemnity 96 The security firm in turn sought contribution or indemnity against the promoter pursuant to cl 6.4 of the hiring agreement. It should be noted immediately that the security firm was not a party to that agreement, but claimed it was entitled to the benefit of cl 6.4 of the hiring agreement. It is not apparent from its submissions at trial how it claimed to be entitled to that benefit. 97 The trial judge's determination on this argument was contained in the single phrase "I am not persuaded Mr O'Dowd". However, the claim under the third party notice had been the subject of argument between counsel and his Honour over about three pages of transcript. During the course of that exchange his Honour expressed three reasons for rejecting the claim: (i) that the contract was between the centre manager and promoters; (ii) that according to its terms it was a 'release' and not an indemnity clause; and (iii) that in the circumstances in which the security firm had maintained for itself control over security, the clause did not operate in the circumstances which pertained here. In the normal course, I would not regard statements made by a judge during argument as constituting reasons for decision. There are practical reasons why this is so. During the course of argument a judge may be testing counsel's argument, or seeking to understand the point being made, or be putting a tentative view with subsequent research requiring a different conclusion. However, in this case, the trial judge did not seek to express any more expanded or different view. It is apparent from the exchange that he remained of the view he expressed in discussion with counsel. Although it would have been preferable for his Honour to restate his reasons, or, at the very least, to indicate that his ruling was based upon the views he had expressed in argument, I am satisfied that the basis of his Honour's decision is apparent and that principles stated in Soulemezis v Dudley Holdings Pty Limited has been satisfied. It should be stressed however that this is not an approach to the giving of reasons to which this Court would, except in the exceptional circumstances here, give its sanction. 98 My rejection of this ground of appeal is fortified on another basis. It is basic contract law that the doctrine of privity of contract allows enforcement of the contract only by parties to the contract: Price v Easton (1833) 4 B&Ad 433 [110 ER 518]; Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847; Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43; or by a party for whose benefit the contract was entered: Trident General Insurance Co Limited v McNiece Bros Propriety Limited (1988) 165 CLR 107. The security firm was not a party to the contract, nor was it entered into for the security firm's benefit. Presumably, it was because the security firm recognised that this principle would be fatal to this aspect of its claim, that it did not seek to raise any substantive challenge to the trial judge's rejection of it. If the Court accepted the appellant's argument that his Honour erred in failing to give reasons, a new trial would have to be ordered. Such a result would be futile in this case, as the security firm could not succeed on the substantive issue.

Liability of the Centre Manager 99 The trial judge held that while the centre manager owed a duty of care to the plaintiff "it behaved reasonably and should [not] and could [not] have taken any additional steps to fulfil its obligations towards the [plaintiff]". It had "fulfilled its obligations by relying upon the expertise of the security firm". 100 The centre manager did not contend that it did not owe a duty of care: see generally Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. However, it submitted that the trial judge's finding that it had discharged its duty by the engagement of the security firm was correct and should be upheld. The security firm submitted, however, that as a matter of law the centre manager owed a non-delegable duty of care to the plaintiff.

Non-Delegable Duty of Care 101 The origin of the concept of a non-delegable duty of care is usually traced back to Pickard v Smith (1861) 10 CB (NS) 470 [142 E.R. 535]. In Kondis v State Transport Authority (1984) 154 CLR 672 Mason J at 684 referred to Pickard stating: "Pickard v Smith was the source of the concept of the non-delegable duty as applied to a common law duty of care, though the concept seems to have been derived from earlier cases dealing with duties imposed by statutes: e.g. Hole v Sittingbourne and Sheerness Railway Co [(1861) 6H.&N. 488; [158 ER 201] ]. In Pickard v Smith an occupier of refreshment rooms at a railway station was held liable for injuries sustained by a train traveller when he fell down a trap door which had negligently been left open by a coal merchant. Williams J, delivering the judgment of the Court, stated [at 539] that the rule that an employer is not liable for the casual negligence of an independent contractor is 'inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned'." 102 However, as Mason J pointed out, this passage, though correct in itself, assumes the existence of a non-delegable duty. When does such a duty arise? In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ referred at 550 to categories of cases where it had been accepted there was such a duty, including: "adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee ." (emphasis added). 103 His Honour at 686 noted that the effect of the imposition of a non-delegable duty in such cases is to "[substitute] for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken". Mason J then examined the basis for imposing the stricter rule in certain circumstances, stating at 687: "when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. …

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. … In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised." 104 In Burnie Port Authority, after referring to the above quoted passage in Kondis, the majority added (at 551): "It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person." 105 Their Honours examined the notions of "central element of control" and "special dependence and vulnerability" in circumstances where a building owner retained an independent contractor to do work on extensions to the building. During the course of the building work, the independent contractor negligently carried out welding activities in close proximity to cardboard cartons which contained highly flammable material and which caught fire. The fire spread, causing damage to goods of a licensee of the premises. The case had been conducted on the basis that the rule in Rylands v Fletcher (1866) LR3HL 330; [1861-73] All ER 1, as to having dangerous things on premises, applied. The Court held that there was no independent or separate rule of law in relation to the keeping and escape of dangerous things. Rather, such a case was subsumed into the ordinary law of negligence. In a passage which is apt for the purposes of this case their Honours said at 551: "One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other part to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger. In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises. Conversely, the person who introduces (or allows another to introduce) the dangerous substance or undertakes (or allows another to undertake) the dangerous activity on premises which he or she controls is 'so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety'." 106 The question of a non-delegable duty was again considered in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313. That case involved a landlord's duty to occupiers of premises, and the Court was divided as to whether the duty was non-delegable. However, Mason J's statement in Kondis (at 687) was approved (see Brennan CJ at 332; Dawson J at 345; Toohey J at 350-352; Gaudron J at 361-2; and McHugh J at 368). 107 Given the finding that mosh dancing and crowd surfing were promoted as part of the evening's entertainment and given the nature of those activities, I am of the opinion that the centre manager owed a non-delegable duty of care to the plaintiff. Those activities were frenetic and, it was known, could result in personal injury if not properly managed. The centre manager was the occupier of the centre, which it also managed and controlled. It permitted the concert and its associated activities to be held at the centre. In those circumstances, the centre manager was "so placed in relation to the [attendees of the concert] … as to assume a particular responsibility for [their] safety" or to use the more compendious phrase used by their Honours, the centre manager had the "central element of control". 108 Likewise, the attendees of the concert were in a position of "special dependence or vulnerability". The reasons for this are self-evident. They had no control over the number of tickets to be sold or sold; they had no ability to provide security; they had limited means of protecting themselves. They had no control over the size of the mosh pit or the mode of lighting; they had no control over the removal of unruly patrons. Their safety was dependent upon the security arrangements made for the concert, and in particular, those put in place to manage the frenetic activities of mosh dancing and crowd surfing. 109 The existence of the security services contract is no answer to this aspect of the case. The very point of a non-delegable duty of care, of course, is that a party cannot contract with a third party so as to avoid it. But even if the security services contract was relevant to this issue, the centre manager clearly retained control of the security services to be provided for the event. This is clear from the provisions of clauses 14, 15 and 17, which provided respectively that the centre manager had the discretion to determine whether a supervisor was required for the concert; that it was required to provide two way radios for security use; and also that it had responsibility for determining the number of security personnel to be engaged. The evidence disclosed that the centre manager was, in fact, an active participant in the type and extent of the security arrangements put in place. 110 Similarly, under the hiring contract, the centre manager also retained control of security. In addition, it retained possession of the premises. The promoter's use of the premises was restricted to that of a non-exclusive licence for the purposes of the concert. None of this, of course, imports an absolute duty of care. The duty at all times remained a duty to take reasonable care. However, because in this instance the duty was non-delegable, the centre manager was under a duty to ensure that reasonable care was taken. It follows that the centre manager is liable to the plaintiff for the casual negligence of the security officers.

Contractual Indemnity 111 In light of the finding that the centre manager is liable to the plaintiff, it is necessary to consider its claim to a complete contractual indemnity in its favour under the security services contract. The centre manager relies upon clauses 9 and 22, which provide: "9. The contractor shall be responsible for and shall indemnify the principal against liability for all loss, damage or injury to persons or property caused by the contractor, or its employees or agents, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by the principal in respect of any such loss, damage or injury shall be made good at the contractor's expense and may be deducted from any monies due or becoming due to the contractor.

22. The contractor shall indemnify and keep indemnified the principal and the Newcastle Showground Trust against all and any claims, suits and actions arising howsoever from the actions of the contractor during the performance of work pursuant to this Agreement." 112 The security firm contends that these clauses are not sufficiently specific to include negligence. 113 I direct my remarks in the first instance to cl 22. An indemnity clause is to be construed according to its natural meaning in the context in which it occurs: see Pendal Nominees Pty Ltd v Lednez Industries (Australia) Limited (1996) 40 NSWLR 282 per Cohen J, adopting Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; also Schenker & Co (Australia) Pty Limited v Maplas Equipment & Services Pty Limited [1990] VR 834. 114 In Darlington Futures, the High Court, in a joint judgment, said at 510: "… the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. … [T]he principle, in the form which we have expressed it, does no more than express the general approach to the interpretation of contracts and it is of sufficient generality to accommodate the different considerations that may arise in the interpretation of a wide variety of exclusion and limitation clauses in formal commercial contracts between business people where no question of reasonableness or fairness of the clause arises." 115 In Pendal Nominees Cohen J referred to this passage at 289: "… the task of the Court in a question of construction of an indemnity clause is no different to that which is to be applied in any other clause of an agreement between the parties, and must follow the principles set out in the quoted passage of the High Court above." 116 The meaning of cl 22, in my opinion, is clear. It refers to "all and any claims, suits and actions arising howsoever from the actions of the contractor". As a matter of ordinary English, the phrase embraces negligence. There is nothing in the policy as a whole which requires it to be read in any different way. Accordingly, I am of the opinion that the security firm is liable under cl 22 to indemnify the centre manager in relation to its liability for the injury suffered by the plaintiff. 117 Having reached that conclusion, it is not necessary to deal with cl 9. For my part, I consider that clause deals with a different matter altogether, but I express no final view on it.

Liability of the Promoter 118 The trial judge held that the promoter also owed a duty of care to the plaintiff, but found that the duty was not breached. His Honour stated: "[The promoter] could not have taken any additional precautions, that is to say precautions other than those that were in fact taken, and I can see no breach of its duty to the [plaintiff]." 119 The security firm contends that this finding is erroneous and that the promoter also owed the plaintiff a non-delegable duty of care. In resisting this contention, the promoter raised two pleading points as well as denying it owed a non-delegable duty. Dealing with the pleading points first, the promoter argued that the security firm had not pleaded that the promoter owed a duty of care either to the plaintiff or the security firm. This however is irrelevant as the security firm seeks to reverse the trial judge's finding that there was no breach of duty by the promoter vis-a-vis the plaintiff. It is open to the security firm to attack that finding so as to base its claim to a right of contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The promoter acknowledges this to be so in its written submissions. In any event, the plaintiff has cross-appealed against the finding that there was no breach of duty by the promoter. 120 The promoter also complains that a non-delegable duty was not pleaded, and nor were the facts and circumstances necessary to give rise to a non-delegable duty pleaded. However, during the course of his oral argument, senior counsel for the promoter dealt comprehensively with the issue of non-delegable duty, and, although I do not take his written submissions to have been abandoned, the matter was sufficiently and clearly raised on the appeal and was fully argued. No Suttor v Gundowda (1950) 81 CLR 418 point was taken and no prejudice alleged. 121 That leaves the substantive question whether the promoter owed a non-delegable duty of care to the plaintiff.

Did the Promoter Owe a Non-Delegable Duty? 122 The security firm submitted that the promoter was an occupier of the Entertainment Centre on the night of the concert and was one of the commercial engines of the concert activity. It promoted crowd surfing as an important commercial ingredient of the concert and there was an inherent risk of injury associated with members of the audience crowd surfing and mosh dancing. It was submitted that the promoter acquiesced in the security arrangements put in place for the night and, further, that those arrangements could not have prevented the harm to the plaintiff in the circumstances. Alternatively, it was submitted there was always the chance of injury due to inadvertent negligence. 123 The promoter denies that the circumstances here created a non-delegable duty of care. In particular, it relied upon the fact that it was not in possession of the premises. It was a non-exclusive licensee only. It also relied on the terms of the hiring agreement which placed responsibility for ticket sales, overall security, crowd control, right of admission and removal of patrons with the centre manager. 124 Those matters are, at first blush, weighty, but involve a fatal circularity. If there was a non-delegable duty, such contractual provisions are irrelevant as a party cannot contract out of a non-delegable duty. The relevant question to ask in determining whether the promoter owed a non-delegable duty of care is whether it undertook the care, supervision or control of the concert, including the promoted activities of mosh dancing and crowd surfing; or alternatively, whether it was so placed in relation to the plaintiff as to assume a particular responsibility for his safety in circumstances where the plaintiff might reasonably expect care to be taken. 125 It goes without saying that the plaintiff would reasonably expect care to be taken for his safety. However, that does not resolve the question of the promoter's liability. The plaintiff was a 16 year old boy attending a rock concert, this being the first time he was unaccompanied by an adult. He would not have given any thought as to who would assume responsibility for his safety. 126 The essential question therefore is whether there was any element in the relationship between the promoter and the plaintiff to found a non-delegable duty of care. Having regard to the primary reliance of the promoter on the fact that it was only a non-exclusive licensee, it should be emphasised that the existence of a non-delegable duty of care is not restricted to circumstances involving the occupation of premises. If it were, the employer and employee relationship would not fall within the category. As was said in Burnie Port Authority, the defining feature of the relationship which give rise to a non-delegable duty is "the central element of control". 127 Little is known of the role played by the promoter except to the extent defined by the hiring contract to which I have already referred. The promoter, of course, had no right to use the centre except with the permission of the centre manager and the contract granted that permission and defined its nature. However, the promoter did not thereby become a passive bystander in relation to this concert. There were specific provisions in the hiring agreement which required the promoter to specify the seating and stage requirements; the lighting requirements; and whether a crash barrier was required. It also appears the promoter remained in control of or responsible for advertising and programming. In summary, it staged the concert and promoted the associated dangerous activities. Such a concert, unless properly controlled, managed and supervised, was likely to end in damage of some sort. It was therefore incumbent on the promoter, to ensure the venue was appropriately equipped and arranged and that the concert was properly managed and supervised. It could not, as a matter of law, avoid liability by contracting away responsibility for either matter. As promoter it was so placed in relation to a concert goer as to assume a responsibility for his safety, thereby attracting a non-delegable duty of care. The casual negligence of the security firm's officers thus meant the promoter also breached its duty of care to the plaintiff.

Contribution Between Tortfeasors 128 Having found that the security firm and the promoters were each liable to the plaintiff, it is necessary to determine their respective contributions under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Were it not for the fact that it was the casual negligence of one or more security officers which caused the damage, I would have been of the view that liability should be apportioned equally between the parties. However, I consider that the negligence of the security firm's security officer requires the security firm to bear a greater proportion of the liability for the plaintiff's injuries. 129 Accordingly, I would apportion liability 50% as to the security firm, and 25% each to the centre manager and promoter. However, the centre manager is entitled to a complete contractual indemnity from the security firm in respect of its liability to the plaintiff.

Damages 130 Finally, the security firm argues that the damages are excessive. The general damages award was $22,000, plus $500 interest (up to the date of trial). 131 The evidence as to the extent of the injury was that the plaintiff lost two teeth and chipped a third when he collided with the barrier. His mouth was swollen for about six weeks. He had a temporary denture within days of the accident and a chrome cobalt prosthetic appliance six months later. The plaintiff suffered acute pain, discomfort and embarrassment for some weeks and will continue to endure the inconvenience and embarrassment of two false teeth at the front of his mouth. He finds some foods difficult to eat and must remove the denture before going to sleep or engaging in an activity such as surfing. His chipped tooth had to be filled. 132 General damages fall within the discretion of the trial judge and will only be overturned on appeal if there has been a wrongful exercise of that discretion: Gamser v Nominal Defendant (1977) 136 CLR 145; Moran v McMahon (1985) 3 NSWLR 700. The appellant has not demonstrated that the trial judge acted on an incorrect principle of law, failed to take account of relevant considerations, made a relevant error of fact or reached a result plainly unjust or unreasonable. The damages awarded, though high, are not outside the range for an injury of the type the plaintiff suffered. Accordingly, this ground of appeal must also fail.

Orders 133 I therefore propose the following orders:

(ii) Cross-appeal allowed, the cross-respondents to pay the cross-appellant's cost of the cross-appeal.

(iii) The appellant to pay the first respondent's costs of the appeal.

(iv) The second and third respondent's to pay the first respondent's costs of the cross appeal.

(v) Set aside the order of the court below and in lieu thereof make the following orders.

(vi) Verdict for the first respondent against the appellant, second and third respondents in the sum of $22,000, together with interest from the date of the trial judgment.

(vii) The appellant, second and third respondents to pay the first respondent's costs of the trial.

(viii) Declare, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 that the liability of the appellant, second and third respondents to the first respondent, including the liability as to the costs of the trial, is to be borne in the proportions: 25% by the second respondent; 50% by the appellant; 25% by the third respondent.

(ix) Order that the second and third respondents pay 50% of the appellant's costs of the appeal.

(x) Declare that the second respondent is entitled to indemnity from the appellant in respect of the second respondent's liability to the first respondent, including in respect of costs. ***************************

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