North Sydney Leagues Club Ltd v Berecry & 2 Ors

North Sydney Leagues Club Ltd v Berecry & 2 Ors - [2002] NSWCA 154 - NSWCA 2002 case summary — Zoe

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11 It is not in dispute that the Club owed a duty to take reasonable care for the safety of Mr Berecry whilst on its premises. The issue was whether the Club had, on the facts, delegated its duty of care to Venue by delegating the tasks of security and control of patrons. If it had done so, the issue would then arise as to whether it nevertheless owed a non-delegable duty of care to Mr Berecry so that the Club remained liable to him despite the appointment of Venue. 12 The only evidence at the trial about the contractual relationship between the Club and Venue were two documents both tendered on behalf of Mr Berecry. One was a letter dated 30 August 1995 ("the Venue letter") from Venue to the operations manager of the Club. The other ("the job description") was a document on the Club's letterhead containing a description about a job entitled "Security Person". No evidence was adduced by the Club or by Venue about the contractual relationship between them. 13 His Honour found that the Club had not delegated its security functions to Venue. That finding was clearly open to his Honour. The Venue letter, in rather puffed up language, asserted that Venue would provide to the Club experienced and licensed security personnel to handle all security and crowd control. The job description, however, stated that the objective of the security person would be to "assist in maintaining good order at all times and ensure that the security and safety of all staff and patrons … is maintained …" (emphasis added). The operational section of the job description stated that the security officer would take instructions from, and report to, the duty manager. It stated that such matters as "general misbehaviour" were the "primary role of the management" of the Club, and it repeated that the security officer would "assist management" in the restraint or removal of violent or abusive patrons. 14 The Venue letter and the job description provide some evidence of a relationship between the Club and Venue. It was a relationship in which Venue was to assist the Club in carrying out its security functions. Those documents do not provide evidence of a delegation to an independent contractor of the Club's duty to provide security and safety on its premises. 15 That conclusion is supported by the roles which the Club's duty managers and Mr Lambeth fulfilled at the relevant time (as I describe in par 18). They jointly participated in dealing with Mr Berecry and his companions whose behaviour was obstreperous. 16 The finding that the Club had not delegated its duty of care renders it unnecessary for the Court to determine whether or not the duty was delegable as contended for by the Club on the basis of Newcastle Entertainment Security Pty Ltd v Simpson & Ors (1999) Aust Tort Reports 81-528. Was the Club in breach of its duty of care?

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19 But the facts demonstrate, and his Honour so found, that the Club could, but did not, intervene in what was a potentially dangerous situation. Some of those facts were derived from Ex 9 which was a transcript taken from the hearing in the Local Court of a prosecution against Mr Lambeth for assault. Mr Gee QC, appearing for the Club, claimed that Ex 9 was admitted at the trial only as against Venue and Mr Lambeth. The transcript of the trial reveals no such conditional admission, and the parties are at issue on this point. In these circumstances, I proceed on the basis of the transcript. 20 The situation was that Club personnel were standing nearby when Mr Berecry was struck. One such person was Ms Bloomfield, who had directed Mr Lambeth to ask Mr Berecry and his companions to leave. Another was Mr S Munroe, another of the Club's duty managers, and a further person was the doorman, Mr Smith. As his Honour found, an obvious measure would have been for these Club officials to direct Mr Lambeth away from the door and to instruct him to cease his provocative conduct. It was reasonably foreseeable that injury might occur to Mr Berecry. But, despite ample and observable warning that the situation could become dangerous, the officials took no action. 21 Furthermore, this is not a case where Mr Lambeth committed an independent personal act which was not connected with or incidental in any manner to the work which he was expressly or implicitly authorised to perform (cf Deatons Pty Ltd v Flew (1949) 79 CLR 370). The scope of authority of security officers was described by Mr R W Jennings, an expert in security matters. His evidence was that, in carrying out their duties, they should use as little force as is necessary, and that was a matter of judgment. Mr Lambeth said his instructions were to use minimal force. Having regard to this evidence, I am of the opinion that Mr Lambeth was, at all relevant times, acting within the scope of his authority. 22 The inescapable conclusion is that the Club breached its duty of care to Mr Berecry, and the trial judge was not in error in so finding. The Club's cross-claim against Venue

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28 Mr Lambeth's case is that the trial judge fell into error in accepting the account of the incident put forward by Messrs Berecry, Baker, Carew and Cropper. That account was inconsistent with the account put forward by Mr Lambeth and by Mr M The, another security officer. It was put that, in resolving that inconsistency, the trial judge failed to give proper weight to the evidence of Mr The, whose account corroborated that of Mr Lambeth. 29 Messrs Baker, Carew and Cropper were adamant in their testimony that Mr Berecry walked back through the glass doors with his arms at his side. They each denied, in various ways, that Mr Berecry had his arms raised or that he lunged towards Mr Lambeth or went to strike him. Mr Lambeth's account, however, was that Mr Berecry came through the door towards him with one of his arms raised, and that he ducked his head to avoid being struck by Mr Berecry. 30 His Honour rejected the evidence of Mr Lambeth because the account Mr Lambeth gave at the trial was inconsistent in a material respect with prior statements he had made. At the trial, Mr Lambeth's evidence was that he had struck Mr Berecry in self-defence, because he believed that Mr Berecry was coming back through the door to hit him. However, in earlier statements made to the Club and Venue respectively, Mr Lambeth described his blow to Mr Berecry as being a reaction to a rapid and hostile move made by Mr Berecry towards Mr The. Mr Lambeth made a similar statement in the course of giving evidence in the prosecution in the Local Court. These prior inconsistent statements, especially the contradictory account given on oath, led his Honour to doubt the veracity of Mr Lambeth. 31 A statement made by Mr The was admitted into evidence at the trial. It supported Mr Lambeth's earlier accounts of the incident because it described Mr Berecry as lunging towards Mr The. However, Mr The could not be located and he was not called to give evidence. 32 A number of photographs taken from a video that recorded some of the events during the incident were in evidence at the trial. They are somewhat equivocal in their depiction of the incident; on balance, however, they seem to support the accounts given by Messrs Baker, Carew and Cropper. Whilst standing outside the doors, Mr Berecry appears agitated, and at one instance, has his finger raised and pointing. Mr Lambeth appears on the inside of the doors, sometimes facing Mr Berecry and at least at one instance with his back to the doors. But when the doors are shown as re-opening, Mr Berecry appears to be coming through, with his arms at his side, towards Mr Lambeth who appears to be standing at a slight angle to the opening doors. 33 The contradictory accounts given on oath by Mr Lambeth, the non-availability of Mr The, and the video photographs all provide a credible basis for his Honour to have rejected their respective accounts of the incident in favour of the accounts given by Messrs Baker, Carew and Cropper which were consistent in their respective descriptions of Mr Berecry's behaviour as he came back through the doors. There is no basis for concluding that his Honour failed to use or palpably misused the advantage which he had of seeing and hearing the witnesses (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 - 179). His Honour's finding that Mr Lambeth's blow was intentional and unnecessary should not be disturbed. Damages

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34 The trial judge made two significant assessments of damages. He allowed $110,000 for general damages, based upon his finding that Mr Berecry suffers a permanent disability, manifested by loss of memory, depression (particularly in social situations), loss of taste, change in personality, and tiredness. His Honour also found that Mr Berecry, a motor mechanic, had a continuing economic incapacity, and his Honour allowed an average of $200 per week net until aged 65. After applying appropriate discounts, his Honour allowed $210,800 for future economic loss. 35 Both the Club and Mr Lambeth claim that the assessment of general damages is excessive. They claim that Mr Berecry had performed well at TAFE, that he had been able to live by himself, travel overseas, operate his own bank accounts, and generally lead a normal life. The trial judge accepted, however, that Mr Berecry suffers a permanent disability, and that the injury that he sustained had a major impact upon his quality of life and his capacity to function normally, although he is not physically disabled. Having regard to his Honour's findings, his assessment of $110,000 for general damages does not appear to me to be manifestly excessive. 36 As to the issue of the assessment of future economic loss, a submission was made on behalf of Mr Lambeth that, based on Mr Berecry's actual earnings at the relevant date and the actual earnings of other mechanics at his place of work, the proper assessment should have been between about $124,000 and $135,000, whereas his Honour assessed the figure at $210,800. The Club's damages schedule suggested an allowance of $50,000 in this respect. In making his assessment, his Honour took into account Mr Berecry's diminished productivity rate of 80% in comparison with other mechanics, and found that, although Mr Berecry has been employed to date by "sympathetic" employers, he would find it longer to regain employment than if he was unimpaired. Furthermore, his Honour took into account Mr Berecry's ongoing tiredness, and that Mr Berecry would be unable to conduct his own repair business. 37 These are important findings that were open to his Honour on the evidence, and they form the basis for concluding that his Honour's assessment of $210,800 for economic loss is not manifestly excessive.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (2)

Cited By (2)