Orcher v Bowcliff Pty Ltd - [2012] NSWSC 1088 - NSWSC 2010 case summary — Zoe

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Orcher v Bowcliff Pty Ltd

[2012] NSWSC 1088

Supreme Court of NSW|2010-10-07|Before: Harrison J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2010-10-07

Before

Harrison J

Catchwords

(2009) 239 CLR 420 Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd
(1949) 79 CLR 370 Desmond v Cullen [2001] NSWCA 238 Graham v Baker [1961] HCA 48
(1961) 106 CLR 340 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
(2002) 211 CLR 540 Laresu Pty Ltd v Clark [2010] NSWCA 180 New South Wales v Lepore [2003] HCA 4

Source

Original judgment source is linked above.

Catchwords

(2009) 239 CLR 420 Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd(1949) 79 CLR 370 Desmond v Cullen [2001] NSWCA 238 Graham v Baker [1961] HCA 48(1961) 106 CLR 340 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54(2002) 211 CLR 540 Laresu Pty Ltd v Clark [2010] NSWCA 180 New South Wales v Lepore [2003] HCA 4(2003) 212 CLR 511 Medlin v State Government Insurance Commission [1995] HCA 5(1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61(2000) 205 CLR 254 North Sydney Leagues Club Limited v Berecry [2002] NSWCA 154(2002) Aust Torts Reports 81-657 Perkins v Redmond Co Pty Ltd [2007] NSWDC 147(2007) 234 CLR 330 Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 Scott v Davis [2000] HCA 52(2000) 204 CLR 333 Spedding v NoblesSpedding v McNally [2007] NSWCA 29(2007) 69 NSWLR 100 Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319(2007) Aust Torts Reports 81-921 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19(2006) 226 CLR 161 Wagstaff v Haslam [2007] NSWCA 28

[1]

v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354 Category: Principal judgment Parties: John James Orcher (Plaintiff) Bowcliff Pty Ltd (t/as The Bridge Hotel Rozelle) (First Defendant) Tamiano Paseka (Second Defendant) Richard Francis Keough (Third Defendant) QBE Insurance (Australia) Limited (Fourth Defendant) Representation: J E Sexton SC with C Heazlewood (Plaintiff) R S Sheldon SC (First and Third Defendants) S G Campbell SC with T Berberian (Fourth Defendant) Carneys Lawyers (Plaintiff) Wotton + Kearney (First and Third Defendants) HWL Ebsworth (Fourth Defendant) File Number(s): 2009/296392

[2]

Judgment 1HIS HONOUR: Mr Orcher was seriously injured when he was assaulted by Tamiano Paseka outside the Bridge Hotel at Rozelle at about 4.50am on 25 November 2007. He brought proceedings against Mr Paseka and Bowcliff Pty Ltd, the corporate manifestation of the Bridge Hotel. Mr Paseka had from time to time been employed by the hotel as a glass collector. There is a live issue in the proceedings about whether or not Mr Paseka was actually performing duties working for the hotel at the time he assaulted Mr Orcher. 2Mr Orcher's claims provoked a series of cross-claims. The first cross-claim was brought by Bowcliff against Australian Corporate Protection Pty Ltd trading as Australian Crowd Management Services (NSW) and Mr Paseka. The second cross-claim was brought by Australian Corporate Protection against DSSS Cousins Pty Ltd. The second cross-claim was subsequently amended to substitute QBE Insurance (Australia) Limited as the cross-defendant. It was alleged that QBE was the insurer of DSSS Cousins, which in the meantime had gone into liquidation. In due course, but before the hearing of the proceedings commenced before me on 5 October 2010, both cross-claims were settled. In relation to the first cross-claim there was a verdict and judgment for Australian Corporate Protection with an order that the parties to that cross-claim pay their own costs. In relation to the amended second cross-claim there was a verdict and judgment for QBE with an order that the parties to that cross-claim also pay their own costs. 3On the third day of the hearing, Mr Orcher indicated that he wanted to join Richard Francis Keough, who was the licensee of the hotel at the time of the assault. That application was uncontroversial in isolation and in due course Mr Orcher filed a further amended statement of claim joining Mr Keogh as a third defendant. However, apparently as a consequence of this, Mr Orcher and Bowcliff each then filed notices of motion seeking various orders including, relevantly for present purposes, applications for leave pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 to commence proceedings against QBE. 4Although I refused the application to join QBE, the Court of Appeal took a different view: see Bowcliff Pty Ltd v QBE Insurance (Aust) Ltd; John James Orcher v QBE Insurance (Australia) Ltd [2011] NSWCA 18. QBE therefore became a party to the proceedings, along with Bowcliff and Mr Keough. Although Mr Paseka has always been a party, he has never appeared and he has taken no active part in the hearing.

[3]

Background 5The Bridge Hotel is situated on the corner of Victoria Road and Wellington Street in Rozelle. On 24 and 25 November 2007, entry to and from the premises for patrons attending the hotel was through doors opening onto Wellington Street. A service station is located directly opposite this entrance to the hotel on the adjacent corner of Victoria Road and Wellington Street. Closed circuit television cameras had been installed in and around the premises and were operating on the evening of the events that give rise to these proceedings. These cameras recorded a series of views of various activities and incidents both inside the hotel and outside on the streets at the time. What is depicted in these video recordings has figured prominently in the cases presented by all parties. 6The attack upon Mr Orcher is clearly recorded by at least one of the cameras operating at the time. The recording shows Mr Paseka violently punching Mr Orcher in the early hours of the morning, as he was standing on the corner of Victoria Road and Wellington Street. He fell immediately to the ground and remained motionless where he lay. It is not controversial, and I find as a fact, that Mr Paseka struck Mr Orcher as alleged and that he suffered serious injuries as a result. The precise nature and extent of his injuries, and their degree of connection to the assault upon him, are referred to in more detail later in these reasons.

[4]

The pleadings 7It is important at an early stage to understand the way in which Mr Orcher frames his case against the various defendants in these circumstances. He alleges that Bowcliff was at all relevant times the occupier, and that it had the care, control and management, of the Bridge Hotel and that it was also Mr Paseka's employer. DSSS Cousins provided security services in the form of licensed security guards to, and for the benefit of, the Bridge Hotel. 8Mr Orcher alleges that between approximately 4.00am and 4.30am on the morning of 25 November 2007 he was an invitee at the hotel and upon its premises. He alleges further that approximately ten minutes later he left the hotel premises and that "shortly after [he] was assaulted by [Mr Paseka] who punched [him] causing him to fall backwards and strike his head heavily upon the footpath outside the hotel premises". Paragraph 7 of the third further amended statement of claim is then in these terms: "7. The ...assault occurred as a consequence of the negligence of [Bowcliff] and/or of the negligence of [Mr Keough] and/or the negligence of an employee of DSSS for which DSSS is vicariously liable and for which [QBE] is liable pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946." 9Mr Orcher's pleading then particularises the negligence that he alleges against each of the defendants. With respect to the negligence of Bowcliff and Mr Keough, the particulars alleged are that they: "(a) Failed to request [Mr Paseka] to cease drinking alcohol on the night in question prior to the assault. (b) Failed to request [Mr Paseka] to cease working on the night in question and leave the ...premises. (c) Had prior knowledge of the fact that [Mr Paseka] assaulted a patron of the ...hotel approximately one week prior to the particular assault and took no steps to counsel [Mr Paseka] or alternatively dismiss [him] from its employ. (d) Failed to request its employees to stop serving alcohol to [Mr Paseka] prior to the subject assault. (e) Permitted [Mr Paseka] to assault [Mr Orcher] and/or failed to take any or any reasonable steps to prevent him from assaulting [Mr Orcher]." 10Mr Paseka's negligence was particularised as follows: "(a) Assaulted [Mr Orcher] by punching him in the head. (b) Consumed an excessive amount of alcohol whilst working at the ...premises and being under the influence of alcohol at the time of the assault. (c) [Mr Paseka] showed a propensity to act violently on previous occasions and assault other patrons of the ...hotel premises. (d) Knocking [Mr Orcher] to the ground." 11Finally, it is alleged by Mr Orcher against QBE that: "(a) An employee of DSSS permitted [Mr Paseka], a person who that employee knew or ought to have known was not qualified or licensed to act as a security guard, to cross Wellington Street with the apparent intention of intervening in an altercation involving [Mr Orcher]. (b) An employee of DSSS permitted [Mr Paseka] to assault [Mr Orcher]. (c) An employee of DSSS failed to take any or any reasonable steps to prevent [Mr Paseka] from assaulting [Mr Orcher]." 12The significant amendment to the pleadings that resulted in the current version of the statement of claim is contained in the following paragraph and its extensive particulars: "9A Further and in the alternative, the...assault by [Mr Paseka] was an act within the scope of [his] duties...as an employee of [Bowcliff], or alternatively was an act incidental to the scope of those duties such that [Mr Keough], or alternatively [Bowcliff] is vicariously liable for the loss and damage suffered by [Mr Orcher] as a result of the...assault. PARTICULARS OF VICARIOUS LIABILITY OF [MR KEOUGH] (I) In 2007, including 24 and 25 November 2007, employees at law of the first defendant working at the Bridge Hotel, including [Mr Paseka], were under the day to day orders and control and supervision of [Mr Keough]. (ii) Statutory permission for conduct otherwise prohibited by statute, namely sale of liquor, is given to the licensee or an agent or servant of the licensee, not to the employee at law of the natural persons engaging in that conduct: Liquor Act, 1982 s 122 and s 4 'person authorised to sell liquor'. (iii) Unless the employer at law of a natural person who engages in the sale of liquor is an agent or servant of the licensee, that natural person selling liquor would breach s 122. (iv) Statutory obligations associated with or related to that statutory permission are imposed on the licensee, not on either (a) the agent or servant of the licensee within the meaning of s 122 or (b) the employer at law of natural persons engaging in conduct which is or is related to the sale of liquor: Liquor Act 1982 s 125(1)(b). (v) Accordingly, conduct by natural persons relevant to the performance or satisfaction of statutory obligations imposed on the licensee, including pursuant to s 125(1)(b), is conduct in compliance by the licensee of the licensee's statutory obligations. (vi) Further, conduct by natural persons relevant to the performance or satisfaction of undertakings given by the licensee in relation to the licence, is conduct in furtherance of the commercial interests of the licensee in the licence. (vii) The conduct of [Mr Paseka] in punching [Mr Orcher] was in furtherance of the interests of [Mr Keough] in respect of (a) [Mr Keough's] obligations as licensee pursuant to s 125(1)(b) and (b) [Mr Keough's] commercial interests as holder of [the] licence relating to the Bridge Hotel." 13Bowcliff and Mr Keough filed a joint defence. Among other things, they admitted that Mr Paseka was "at all material times ... an employee of [Bowcliff]". The claim was otherwise denied. In addition, they alleged that Mr Orcher was guilty of contributory negligence which they particularised as follows: "a. Inciting the incident in which he was assaulted by provoking Mr Paseka. b. Failing to take reasonable care for his own safety in the circumstances by provoking [Mr Paseka]. c. Failing to leave the vicinity of the premises in a quiet and orderly manner. d. Failing to inform staff or management, thus putting them on notice, of an impending threat or that he had been aggressively approached by [Mr Paseka]. e. Failing to call the police, in circumstances where he failed to inform staff or management of an impending threat or that he had been aggressively approached by [Mr Paseka]." 14Paragraphs 15 and 16 of the defence filed by Bowcliff and Mr Keough should also be noted. They contend that Mr Orcher's injuries were caused or contributed to by Mr Paseka's criminal act over which they had no control, and in a location and area outside the hotel premises over which Bowcliff neither exercised nor was entitled or obliged to exercise control. Moreover they say that Mr Paseka was not actually working for Bowcliff at the time of the assault or, if he was, the assault upon Mr Orcher was conduct that was outside the scope of his employment, was not an act authorised by Bowcliff or Mr Keough and was not in furtherance of their interests. They say further that nothing that they did or failed to do contributed to the commission of Mr Paseka's criminal act, particularly having regard to the fact that it occurred beyond the boundaries of the hotel premises. 15Bowcliff and Mr Keough also say that the security person present on the footpath outside the hotel immediately prior to or during the assault was a person who was not employed by Bowcliff so that it is not vicariously or otherwise liable for or in respect of the acts or omissions of the security person prior to or during the assault. This is because the security person concerned was employed by DSSS Cousins and was under its complete direction and control at the relevant time. 16By the terms of the remaining cross-claim between Bowcliff and Mr Keough as cross-claimants and QBE as cross-defendant, Bowcliff and Mr Keough seeks contribution and/or indemnity from QBE pursuant to the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act. The cross-claimants allege that DSSS Cousins is a tortfeasor who would if sued by Mr Orcher have been liable in respect of the same damage as that for which Mr Orcher seeks to make them liable. 17It will be immediately apparent that the question of whether or not Bowcliff or Mr Keough or QBE is responsible for the consequences of an assault upon Mr Orcher, which occurred beyond the boundaries of the hotel, and in fact on the corner of the street on the opposite side of the road, is a significantly controversial issue in these proceedings. The other significant issue concerns whether or not Mr Paseka was employed by the hotel and still performing duties for it at the time he assaulted Mr Orcher.

[5]

The evidence - liability Mr Orcher 18Mr Orcher made a statement dated 1 June 2010 that was tendered without objection. He was born in 1979. On the evening of 24 November 2007 he was in bed asleep with his partner Cecily Williams. At some time during the night Ms Williams left and went to the Bridge Hotel. Then, in the early hours of the following morning, Mr Orcher went there to bring her home. He entered the hotel but did not stay for a drink. A short time later they both left the hotel. Ms Williams went to the ATM in the service station across the street from the hotel. Mr Orcher's next recollection is waking up in hospital. 19In cross-examination Mr Orcher said that he had no recollection of either driving to, or arriving at, the Bridge Hotel. He agreed that he had some limited memory for events that occurred there on the night he was assaulted. He was asked some questions about whether he recalled having a particular conversation with Mr Paseka at the hotel that morning. That cross-examination was as follows: "Q. On the night that you went to the Bridge Hotel, you had a conversation with a fellow whose name you thought was Damien, didn't you? A. Yeah, I thought that was Paseka. Q. You thought it was Paseka? A. Yes. Q. You remember having a conversation? A. Not talking. He was yelling at me the whole time. It's not like we're talking like this. Q. Didn't you have a conversation with him inside the hotel? A. It wasn't a conversation. Q. He just yelled at you? A. Pretty much, yeah. Q. Well, did he say to you, "Are you John"? A. Yep. Q. And you said, "Yeah. Why"? A. Yeah. Q. And he said, "You got Matt Koh locked up"? A. That's his friend. Q. Is that what you said? A. That's his friend. That's not what I said. That's what he said to me. Q. I'm sorry, you're right. But he definitely said that? A. Mm. Q. Did you know who Matt Koh was? A. Yeah. Someone who smashed the house to try to come in and bash me at me ex girlfriend's house and we got him charged and he only got six months in gaol for that and smashed the house up. Q. And you knew all that as soon as this person Paseka mentioned his name? A. He was a friend of his, yeah. Q. You knew who Matt Koh was as soon as he said the name, didn't you? A. Mm hmm. Q. And did Mr Paseka yell this, "You got Matt Koh locked up", at you? A. Mm hmm. "You're a dog", stuff like that. Gaol talk I call it. Q. He called you a dog, too, did he? A. That's what gaol people talk like. Q. I see. It struck you that Mr Paseka was pretty angry with you for getting his friend Matt Koh locked up; is that right? A. Obviously, yeah.

[6]

Mr Orcher's submissions Negligence: Bowcliff 81Mr Orcher's principal case is that Bowcliff, as an occupier of licensed premises, carrying on a business selling liquor on the premises, directly breached its duty of care to him by failing to prevent injury to him as a patron caused by violent, quarrelsome or disorderly conduct of other persons in the vicinity of the hotel, and by failing to take precautions against a risk that an untrained and unqualified person intervening in an altercation between Mr Orcher and Izzy might overreact and cause harm to Mr Orcher. 82The scope of the duty for which Mr Orcher contends is derived from the following authorities. First, Adeels Palace Pty Ltd v Moubarek [2009] HCA 48; (2009) 239 CLR 420 at [26]: "[26] In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law "ought". The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force. Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises." 83Second, Zorom Enterprises Pty Ltd (in liq) v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354 at [37]: "[37] There is no reason to draw such an inference, based on tight linguistic analysis, from the formulation of licence conditions. Rather, the appropriate inference as to the duties of security personnel must take account of the general provisions of the Liquor Act 1982 (NSW), pursuant to which a licensee or employee of a licensee has power to "turn out, or cause to be turned out of the licensed premises" an intoxicated person, using "such reasonable degree of force as may be necessary": Liquor Act, s 103, discussed in Wagstaff v Haslam [2007] NSWCA 28 at [34]-[36]. To similar effect, the licensee is required not to permit "intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises": s 125(1). For the purposes of that section, a person may be asked to leave the premises and the licensee may be required to show that all reasonable steps were taken to prevent intoxication on the premises: s 125(4). Absent any evidence to the contrary (and none was called by the defendants at trial) the trial judge was entitled to infer that the security personnel were contracted by the licensee to ensure his compliance with both his statutory obligations under the Liquor Act and his specific obligations under his licence. So understood, the obligations of the security personnel would have included turning out persons thought to be intoxicated, and those involved in or likely to be involved in violent or quarrelsome conduct. The duties would have included patrolling the area in the vicinity of the hotel to ensure that patrons, not limited to those turned out of the premises, did not cause nuisance or annoyance to the neighbourhood..." 84Third, Portelli v Tabriska Pty Ltd [2009] NSWCA 17 at [61] per Allsop P: "[61]... I have reservations about whether it can be said, as the primary judge did, that the duty cannot extend to any circumstances where the wrongdoing causing injury to the plaintiff occurred in a public street. The element of control which, together with the statutory obligations and occupation of the site, is the foundation of the duty may in appropriate circumstances apply to control of the victim (or at least circumstances which attend the victim) as well as of the aggressor. The fact that the aggressor has been put out of the hotel may not exhaust the obligation of the licensee or occupier to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron. One can envisage a multitude of circumstances in which a simple step by the licensee could prevent a patron walking outside into almost certain physical injury. Care must be taken, however, to prevent recognition that the control able to be exercised by the licensee or occupier can be the foundation of a duty of care to a patron becoming transformed into a proposition that the licensee or occupier has a positive obligation to become the protector and guardian of the so called "innocent" patron whenever danger outside the hotel can be reasonably apprehended. Some of the particulars and submissions of the appellant here amounted to this last proposition, or at least came close to it." 85Fourth, Desmond v Cullen [2001] NSWCA 238 at [4] per Spigelman CJ: "[4] It is not necessary in the present case to identify the boundary of the duty owed by a licensee of a hotel to patrons of the hotel. It is sufficient to say that I agree with Grove J that that boundary cannot be confined to the curtilage of the property of the hotel, as suggested by the trial judge." 86Mr Orcher contended in this case that the duty, formulated in terms of "in the vicinity of the hotel" is informed and supported by the undertaking to the Board referred to in exhibit "U" that on those occasions where more than one door person is employed, they shall patrol outside the premises to ensure that the undertakings are complied with. 87Mr Orcher submitted that the fact that Mr Paseka was an employee, even if off duty at the time but remaining on the premises, reinforced the contention that the duty extended to his conduct in the vicinity of the hotel. Mr Paseka was, of course, not a complete stranger to Bowcliff for whom Bowcliff could have no responsibility beyond the boundaries of the hotel. Taking reasonable steps to prevent harm caused by the conduct of an employee on the business premises, even if off duty, is different to preventing harm caused by a stranger. 88According to Mr Orcher, it was common sense that there is a foreseeable risk that if an untrained and unqualified person intervenes in an altercation between two hotel patrons, the incident may escalate. The risk of overreaction by an untrained person was also foreseeable. 89Mr Orcher's primary case on Bowcliff's breach of duty was that Mr Paseka, a person not qualified, licensed or trained in security matters, was allowed to intervene in the altercation between Mr Orcher and Izzy and then overreacted when Mr Orcher said something to him. That allowance or permission was either positive, as in "permission", or negative, as in a failure to prevent him doing something. Moreover, Mr Paseka was known to have previously intervened in matters of security or customer control and to have overreacted in doing so. Mr Orcher pointed to the Tyrone O'Reilly incident in that regard. It was not Mr Orcher's primary case on negligence that Mr Paseka had a known predisposition for violence. However Mr Orcher submitted that a finding that he did have a violent tendency added weight to the risk and hence the unreasonableness of permitting Mr Paseka to cross the road or not preventing him from doing so. 90Bowcliff's permission, or failure, to intervene in this respect is said to come from either Mr Lokotui's conduct as Bowcliff's employee or Mr Paea's failure to act. Mr Paea was said to be under the direct supervision and control of Bowcliff and was implementing the system it had devised. There was no delegation to an independent contractor and therefore Mr Orcher submitted that any failure by Mr Paea to act reasonably was a breach of duty by Bowcliff: see North Sydney Leagues Club Limited v Berecry [2002] NSWCA 154; (2002) Aust Torts Reports 81-657 at [11] - [15] and [21] - [22]. 91Mr Lokotui observed Izzy pointing across the road in the direction that Mr Orcher had walked when he left the hotel with Ms Williams. He also saw Mr Paseka take the bottle from Izzy on the footpath. Mr Orcher contended that this was a case of Mr Paseka "apparently doing his job". He contended that Mr Lokotui wrongfully permitted Mr Paseka to cross the road or failed to prevent him from doing so when he knew that Izzy had also crossed the road following Mr Orcher, without informing Mr Paea that Mr Orcher had been told to leave the hotel or that he and Izzy had "interacted" inside the hotel. 92The CCTV footage shows that Mr Paea stood and watched events unfolding on the opposite side of Wellington Street both before and after Mr Paseka went across. Mr Orcher contended that those events did not unfold so quickly that Mr Paea did not have time to appreciate that an apparently unqualified, unlicensed glass collector was intervening in an altercation between patrons with the risk that he might overreact. It was submitted that whereas Mr Paea might not have had the opportunity to prevent Mr Paseka throwing a punch in response to a provocative remark by Mr Orcher, Mr Paea "certainly" had the opportunity to tell Mr Paseka that it was not his role to cross the street to intervene. That was a matter for qualified staff. Mr Paea or Mr Lokotui should have done so. 93However, Mr Orcher submitted that the behaviour of Mr Paea was also consistent with him either being comfortable with Mr Paseka intervening or with a belief that the hotel had no responsibility for any untoward activity across Wellington Street. Both positions were flawed as each created a foreseeable risk of harm to a patron in the vicinity of the hotel. The risk that Mr Paseka, an untrained, unqualified and unlicensed person, might intervene and overreact if provoked materialised. 94Mr Orcher contended that in terms of s 5B(1) of the Civil Liability Act 2002, the risk was foreseeable and was not insignificant. This followed as the purpose of Mr Paseka's intervention was to deal with conduct between patrons that was potentially violent. It also arose in circumstances where a reasonable person in the position of Bowcliff, an occupier of licensed premises from which it conducted the business of a hotel, would have told such an untrained person not to intervene or would have taken steps to prevent him from doing so. 95In terms of s 5B(2) of the Act, Mr Orcher contended that the likely seriousness of the harm and the insignificance of the burden of taking precautions to avoid the risk of harm weigh heavily in favour of determining that a reasonable person would have taken those precautions. The probability that harm would occur was not negligible and there was no social utility in permitting untrained, unqualified or unlicensed people to intervene in altercations between patrons. 96In terms of causation, Mr Orcher submitted that the evidence demonstrated that when Mr Paseka was instructed to do something he complied, including in the aftermath of the assault. There was therefore no basis for inferring that if Mr Paseka had been told not to cross the street he would have failed to comply. Mr Orcher submitted that the proper inference was that Mr Paseka initially crossed the street to calm things down between Izzy and Mr Orcher, not with the immediate intention of assaulting him. He contended that Mr Paseka was not so worked up when he commenced to cross the street that he would have disobeyed instructions to remain where he was if they had been given. 97Mr Orcher also contended that Bowcliff was liable because, whatever Mr Paseka's formal title may have been, Bowcliff permitted him to engage in conduct involving patrons for which he was not trained, qualified or licensed. This is demonstrated in him taking the bottle from Izzy. It involved the enforcement of the "no alcohol on the street" policy. It was not part of the job of a glass collector. According to Mr Keough, Mr Lokotui knew that. Mr Orcher proffered the submission that "taking alcohol from a patron clearly involves a foreseeable risk that there might be an incident which requires restrained behaviour from a trained staff member". 98Mr Orcher suggested that none of the "explanations" for how Mr Paseka was permitted to engage in that conduct was satisfactory. Mr Keough said that it was not consistent with Mr Paseka doing his job for two reasons. First, because he was not working at the time. Second, because taking a bottle from a patron is not work if the patron is a friend. Mr Orcher maintained that the first explanation was factually incorrect and that the second did not accord with the normal activities of hotel staff: dealing with a patron who was also a friend, and doing so as an employee, were not mutually exclusive. 99Mr Orcher next submitted that Bowcliff was liable to him directly because it permitted Mr Paseka to remain at the hotel drinking, rather than being asked to leave or to be sent home. Mr Orcher maintained that what occurred contravened the House Policy. This was so even though Mr Paseka does not appear on the evidence to have been heavily intoxicated or even moderately affected by alcohol and amounted nevertheless to a breach of Bowcliff's staff rules relating to the consumption of alcohol. 100In the further alternative, Mr Orcher submitted that Bowcliff was directly liable for Mr Paseka's actions because, according to Ms Williams' evidence, Mr Paseka was "yelling something across the road" at Mr Orcher and within about 30 seconds Mr Paseka stepped on the road and crossed to the other side. A security guard was standing at the entrance to the hotel while this was happening. If Mr Paseka was yelling in some fashion, Mr Paea should have intervened and had ample time and opportunity to do so. Negligence: QBE (DSSS Cousins) 101Mr Orcher submitted that for the purposes of s 5B of the Act, the risk of harm and the duty owed by DSSS Cousins are coextensive with the case pleaded directly against Bowcliff alleging that Bowcliff permitted Mr Paseka to engage in conduct involving patrons for which he was not trained, qualified or licensed and because it did not intervene when Mr Paseka was heard to be yelling across the street. This is said to be so because, even though the DSSS Cousins employees were under the direction and supervision of Bowcliff, that supervision and direction was not constant. The DSSS Cousins employees came to their roles at the Bridge Hotel as trained, qualified and licensed security guards who could be expected to exercise their own expertise when required and they did so. 102Consistently with industry practice, one of the roles, if not the primary role, of DSSS Cousins employees, as security guards, was to prevent physical harm to patrons of the hotel, not only within the hotel premises but also on the street in the vicinity of the hotel. 103The very reason for the presence of DSSS Cousins employees at the hotel was to take reasonable steps to prevent harm to patrons. That was the fundamental purpose of what Mr Orcher described as "the contractual chain", which ultimately led from DSSS Cousins to Bowcliff, and which brought DSSS Cousins employees to work at the hotel. That fundamental purpose created a relationship between DSSS Cousins and Mr Orcher sufficient to impose a duty of care on DSSS Cousins in the terms formulated by Mr Orcher, not in the terms formulated in the DSSS Cousins defence. 104Mr Orcher emphasised that there was no evidence of any express contractual term, and none could be implied, prohibiting a DSSS Cousins security guard from acting in the manner described by Mr Lokotui. That is to say, there was no express prohibition upon leaving the door or the footpath under any circumstances in order to deal with an incident on the opposite side of Wellington Street. The primary complaint made by Mr Orcher against Mr Paea was in any event that he did not act to restrain Mr Paseka from crossing the street towards the altercation between Mr Orcher and Izzy. 105Mr Orcher re-emphasised that Mr Paea had the opportunity to intervene but did nothing. The CCTV footage makes it plain that something was attracting attention across the road for at least two minutes. This emerges as well from Mr Paseka's recorded police interview. Mr Paseka crossed the road shortly after taking the bottle from Izzy. Mr Paea was apparently content for him to do so. Mr Orcher submitted that Mr Paea could and should, as a qualified security guard, have intervened himself before the altercation escalated. 106In summary, Mr Orcher submitted that the only reasonable explanation, but not an excuse, for Mr Paea's conduct was that he understood that Mr Paseka was dealing with what was occurring on the opposite side of Wellington Street. As a trained and qualified licensed security guard, Mr Paea himself should have been dealing with it. Mr Lokotui's view was to that effect. In such circumstances a direct liability should be imposed upon the fourth defendant. Vicarious liability: Bowcliff 107Mr Orcher was necessarily confronted with the decision in Deatons Pty Ltd v Flew (1949) 50 SR (NSW) 50; (1949) 79 CLR 370. Commencing at 379, Latham CJ famously stated the principles as follows: "The liability of the employer depends upon the scope of employment of the barmaid and the authority which her employment conferred upon her, such authority to be exercised on behalf of the employer. An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant's authority either as being an act which he was employed actually to perform or as being an act which was incidental to this employment. The law is clearly stated to this effect in Canadian Pacific Railway Co. v. Lockhart (1942) AC 591 . In the present case it is not suggested that the barmaid was employed to throw beer in customers' faces, but it is contended that the throwing of the beer was incidental to her employment as a barmaid in that she was placed in the bar to deal with customers and to answer such questions as customers might naturally ask. It was said that throwing the beer was an act incidental to employment in that it was a method, though an improper method, of responding to an inquiry made by a customer. It was also suggested that it was a means of keeping order in the bar as to which the barmaid might be presumed to have at least some degree of authority. But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do. Upon the plaintiff's evidence the throwing of the beer was a gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of the barmaid. Upon the evidence given for the defendant the act was an act of personal resentment and was not in any way performed as on behalf of the employer. It was not done even in supposed furtherance of the interests of the employer. In doing what she did the barmaid was, as Isaacs J. said in Bugge v. Brown (1919) 26 CLR, at p 118 acting so "as to be in effect a stranger in relation to (her) employer with respect to the act (she) has committed, so that the act is in law the unauthorized act of a stranger." In my opinion the act of the barmaid was not expressly authorized, it was not so connected with any authorized act as to be a mode of doing it, but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform. Accordingly in my opinion there was no evidence to go to the jury as against the defendant company and the defendant company was as a matter of law entitled to a verdict." [Emphasis added] 108To a similar effect Dixon J in the same case said this at 380-381: "In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could not be supported that the barmaid acted in the course of her employment so that the defendant company would be vicariously liable. For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might have proceeded from private spite on the part of the barmaid or from some other cause quite unconnected with her occupation or employment. So far as the plaintiff's case went to show, nothing occurred which would in any way relate her action to the duties of her office or explain it by reference to anything incidental to what she was employed to do... ...It is not a case of a negligent or improper act, due to error or ill judgment, but done in the supposed furtherance of the master's interests. Nor is it one of those wrongful acts done for the servant's own benefit for which the master is liable when they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master... The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid." 109In New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, Gummow and Hayne JJ at [231] and [233] expressed the following view: "[231]... It may be doubted that what Dixon J said was intended to describe exhaustively all the circumstances which would attract vicarious liability. The statement was made in connection with a claim that an employer was vicariously liable for an intentional tort. Nonetheless, there are two elements revealed by what his Honour said that are important for present purposes. First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having.

[7]

The submissions of Bowcliff and Mr Keough 119Bowcliff and Mr Keough accepted that there was a duty to take reasonable care for the safety of patrons with respect to activities being conducted on licensed premises. They also accepted Mr Orcher's formulation that such a duty exists irrespective of any forewarning as to propensity on the part of the patrons who are engaged in the conduct or activities on the premises. These defendants did not, however, accept that there was always a duty owed to such patrons beyond the boundaries of the licensed premises. 120It was emphasised on behalf of Bowcliff and Mr Keough that the very reason why it could be said a duty arose, in cases such as Wagstaff v Haslam [2007] NSWCA 28; (2007) 69 NSWLR 1, stemmed from the degree of control reposed in the putative tortfeasor. The element of control also has its corollary in the absence of control in relation to the areas outside the premises. It is one thing, as has been explored in general terms in this case, to say that a licensee can turn out someone who is becoming, or who has become, quarrelsome. It is quite another thing to say that that licensee has an obligation to do something with respect to members of the public who are on public land and in the case of a road, have a right to pass and repass without being fettered in that right by another member of the public. It is one thing to impose a duty as envisaged in Adeels Palace with respect to the premises. However, the question of how the duty is to be discharged in respect of conduct beyond the premises informs the existence or the non-existence of a duty of care. 121Bowcliff and Mr Keough conceded that the generality of what was said by Allsop P in the first sentence taken from the following passage in Portelli may not "survive" following what has been said in Adeels Palace. They strongly endorsed the second sentence as still accurately stating the correct position: "[69]...Nevertheless, it may mislead to speak, invariably, in terms of a generalised duty of care of a publican to take reasonable care for the safety of persons on occupied premises. The question will always be whether, in the circumstances, a duty was owed to the plaintiff, in respect of the damage suffered by him or her, to exercise reasonable care in some relevant respect arising from the occupation of premises, the control involved in any such occupation, any statutory responsibilities in relation to the licence or in relation to the conduct of the establishment and any assumption of responsibility." 122However, Bowcliff and Mr Keough particularly emphasised what was said in Collingwood Hotel Pty Ltd v O'Reilly; Night Knowledge Security Pty Ltd v O'Reilly [2007] NSWCA 155 at [21] per Basten JA as follows: "[21] The Appellants accepted that the relevant principles governing their potential liability in negligence for the deliberate acts of third parties were those explained by this Court in Wagstaff v Haslam and Anor [2007] NSWCA 28 and in Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, applying, amongst other cases, Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 (FCAFC). These cases held that someone in the position of a hotel manager or licensee may be liable for injury to a patron caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity, and indeed the statutory obligation, of the hotel manager or licensee to control conduct on licensed premises, pursuant to ss 103 and 125 of the Liquor Act 1982 (NSW). These provisions not only permit the licensee to "turn out, or cause to be turned out" any person who is intoxicated, and to use reasonable force to that end, but also impose an obligation on a licensee not to permit intoxication on licensed premises, an offence which is deemed to be committed by the presence of a person who is intoxicated on the premises, unless the licensee has asked the person to leave the premises, sought police assistance to remove the person and refused to serve the person alcohol: s 125. As will be seen shortly, there was a complaint that the relevant employee of the hotel believed that a number of patrons were sufficiently affected by alcohol to justify refusal of service, yet no steps were taken to eject those persons from the premises, until the relevant outbreaks of violence. However, it should be emphasised there is no statutory cause of action for breach of the Liquor Act, if such a breach occurred. Rather, the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm: see, generally, Wagstaff [2007] NSWCA 28 at [28]-[37]. 123Bowcliff and Mr Keough drew a distinction between the effect of undertakings given to the Board and the factors that suggest that a duty of some sort should be imposed. The undertakings extended to doing something positively about what might occur in the street: that was a different proposition to imposing a duty. That is a positive responsibility with respect to conduct on the street. The fact that Mr Paseka is seen to take a bottle from Izzy in the street has to be looked at closely to determine whether Izzy cooperated with Mr Paseka. They posed the question of whether or not the duty contended for could be complied with if someone such as Izzy had been disinclined to cooperate. 124Bowcliff and Mr Keough contended that the touchstone to the existence of the duty with respect to what occurred in the street was a necessary connection to what occurred within the hotel on the licensed premises. That was the area where control could be exercised. There was no effective means of asserting or enforcing control beyond the boundary of the hotel. The duty cannot therefore reasonably extend to any area where the element of control is missing. These defendants accepted that a duty would have existed on the premises, but if it is to extend beyond the premises they submitted that there must be something more that makes what happens foreseeable in terms of s 5B. They submitted that there was not: if there is going to be a duty that goes beyond the premises, then it needed to be in response to a foreseeable risk of harm of which Bowcliff or Mr Keough know or ought to know. Bowcliff and Mr Keough submitted that the evidence did not permit me to conclude that there was a foreseeable risk of harm of which they were, or should have been, aware. 125Bowcliff and Mr Keough characterised the risk of harm in this case as a risk that Mr Paseka would go out onto the street and either cross the street to try to break up an argument between Mr Orcher and Izzy, or start an argument with Mr Orcher and then cross the street to finish it. They submitted that neither was foreseeable. Significant among the reasons emphasised for this conclusion was the submission that Mr Paseka was not working at the relevant time. 126Bowcliff and Mr Keough also mounted a factual attack on Mr Orcher's case. They submitted that the evidence, particularly that of Ms Williams, did not support a case that Izzy was involved in any confrontation or argument with Mr Orcher, on the opposite side of Wellington Street, in which Mr Paseka felt constrained to intervene. Izzy is not implicated in Ms Williams' statements or evidence "in the yelling or carry on that was happening on the opposite side of the road". They submitted "that really [was] an end to any suggestion, almost irrespective of what other factual findings [were made], of any suggestion that Mr Paseka crossed the road in some capacity as a security guard" with a view to breaking up a fight between Izzy and Mr Orcher. It was Bowcliff and Mr Keough's understanding that "there [was] no other basis put forward upon which it is suggested that a person exercising a security function would have crossed the road". They submitted that Mr Paseka's interview with the police was untested and to the extent that it contained a version that was favourable to Mr Paseka about this, it was unreliable: it was in Mr Paseka's interests when talking to the police to involve Izzy as it tended to validate his intervention. 127It was further submitted that the CCTV footage of the foyer area near the ATM did not suggest a confrontation between Mr Paseka and Mr Orcher or Ms Williams. They contended that the fact that Izzy is seen to be moving his arm around is not evidence of aggressive conduct or malice. 128Bowcliff and Mr Keough rejected as "fanciful" any suggestion that they had an obligation to send Mr Paseka home if he had been seen or found to have been drinking. There was neither a foreseeable risk of harm nor was it reasonable to expect that course to be adopted. Nothing that took place between Mr Orcher and Izzy, whatever that might have been, was in any way connected between what took place between Mr Orcher and Mr Paseka, which was more akin to a personal vendetta by Mr Paseka, wholly unconnected with any conceivable interest of Bowcliff or Mr Keough. 129Bowcliff and Mr Keough submitted that there was nothing in the knowledge of the hotel concerning Mr Paseka's predilection for violence, which would have made what happened to Mr Orcher on the evening foreseeable. There was nothing that Mr Paseka did on the night that made what ultimately happened foreseeable. Thus, there was no duty on the hotel to do anything to prevent what happened on the other side of Wellington Street. 130Bowcliff and Mr Keough submitted that I should find that there was no antecedent conduct by Mr Paseka that would give rise to a foreseeable risk of what ultimately happened beyond the boundaries of the hotel on the other side of Wellington Street. Mr Paseka's conduct, which might arguably have triggered foreseeability, was so close in time to the assault that no-one in the interests of Bowcliff or Mr Keough could in any event have done anything about it. In other words, there being no prior indication of difficulty, the time in which a response was required was only that time between when Mr Paseka started yelling at Mr Orcher and when he hit him, and that no reasonable system or response could have dealt with what occurred from the point of view of Bowcliff or Mr Keough. 131The provisions of the Liquor Act upon which Mr Orcher relied were also dealt with. Bowcliff and Mr Keough understood Mr Orcher to say that s 121 created an agency and that s 125 created obligations and that the interaction of the two means that staff working for the hotel were discharging obligations imposed by the Liquor Act upon Mr Keough. That proposition was described as "untenable". The provisions do not create an agency. Alternatively, any agency that was created extended only to the sale or service of liquor: it does not extend to anything else. In particular, it does not make a person who sells liquor a person who has an obligation under s 125. That obligation falls only on the licensee. Accordingly, anybody who may have been the servant or agent of Mr Keough to sell liquor would only ever be his servant or agent for that purpose and not for the purpose of discharging the obligation imposed upon Mr Keough personally under s 125. 132It was submitted on behalf of Bowcliff and Mr Keough that s 3B of the Civil Liability Act did not apply to any question that arose concerning vicarious liability. 133So far as the liability of QBE is concerned Bowcliff and Mr Keough adopted what Mr Orcher said. They contended that DSSS Cousins knew, through Mr Paea, what was happening on the street, and if there was an occasion for intervention at all, they did nothing. That included failing to tell the doorman or passing it on to Mr Lokotui. If that had occurred, it could have set in train a response on the part of Bowcliff and possibly Mr Keough. Any critical and timely assessment of what was happening was therefore a matter for DSSS Cousins. If there was a call or a need for intervention at all then the first step was one that had to be taken by it. 134Moreover, that was not an issue that fell within the system instituted and employed by Bowcliff for dealing with security issues. That is said to be because what Mr Paea did was a casual act of negligence. Mr Paea presumably made an assessment of the situation and determined what, if any, response to make. He made none. On ordinary principles enunciated in Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161, there was no basis for saying that the system was defective. Therefore, neither Bowcliff nor Mr Keough would be liable for the casual act of negligence of Mr Paea in not intervening. 135Finally, Bowcliff and Mr Keough contended that Mr Orcher contributed to his own loss and damage. That allegation was confined to the proposition that in anticipation of being attacked by Mr Paseka, Mr Orcher ought somehow to have alerted the hotel security staff about it before it happened. The suggestion appears to be that If Mr Orcher is able to establish that there was something that required Bowcliff or Mr Keough to respond, then it must also have been apparent to Mr Orcher, and he should have done something about it himself. That submission was not elaborated upon or otherwise enthusiastically propounded.

[8]

The submissions of QBE (DSSS Cousins) 136QBE has denied that DSSS Cousin owed the duty of care to Mr Orcher for which he contends, or that there was any breach of that duty, or that Mr Orcher's injuries were caused by negligence on its part. 137DSSS Cousins agreed to provide two security guards to ACMS to work at the Bridge Hotel during the period from 26 October 2007 to 8 January 2008. These guards were in addition to the hotel's security that it arranged for itself. There was no written agreement between DSSS Cousins and ACMS, or between DSSS Cousins and Bowcliff. 138QBE contended that the evidence establishes that the security arrangements at the time of the assault were as follows. Mr Keough, as the licensee, was responsible for devising the security system in place at the hotel at the time. As at 25 November 2007, Bowcliff held a Master Licence pursuant to the Security Industries Act 1997 that was valid to 14 December 2007. Mr Keough agreed that he expected the external security guards to work within the system devised by him and to adhere to it. Mr Lokotui was directly employed by Bowcliff to work as a security guard at the hotel. The DSSS Cousins security guards were under the direct supervision and control of Bowcliff and Mr Keough and received directions from either Mr Keough or Mr Davies, or Mr Lokotui in their stead when required. 139Mr Keough had devised the security roster for the hotel for the night of the incident. Mr Keough telephoned ACMS and arranged for two security guards to attend the hotel and commence providing security services from midnight on Saturday 24 November 2007. The particular system that was to be instituted and maintained on the night was that one guard would be stationed on the footpath and another would be stationed inside the door at the entry, who may be called upon to assist like a doorman. If the person at the door were called away, the guard on the footpath would then be required to keep an eye on who was entering the premises as well as being present out on the footpath. The third guard was to patrol inside the hotel. 140According to Mr Lokotui, if an incident occurred outside the hotel on the opposite side of Wellington Street, then the hotel's system required the security guard on the footpath to report it to the guard in the foyer who should then radio Mr Lokotui to attend. When Mr Lokotui was in attendance, he and the guard on the footpath would cross the street to investigate. 141Mr Keough agreed that, having undertaken a security course and having managed the hotel and been in the hotel industry for many years, what is seen on the CCTV footage depicts what he would have expected the trained security guards to be doing. Mr Lokotui also agreed that what he saw was consistent with the standard operating procedures then in place at the hotel. 142On the night in question, the two external guards working at the hotel were Mr Stegnajaic and Mr Paea. Mr Stegnajaic was working inside the hotel and did not see the incident. He was not challenged in cross-examination by either Bowcliff or Mr Keough. He said that on the night Mr Lokotui was the security manager. At the start of his shift Mr Lokotui showed him around and told him to walk around inside the hotel observing patrons, to restrain unruly behaviour and to escort intoxicated patrons off the premises. He gave unchallenged evidence that Mr Lokotui told him that when he was stationed at the door he was not to leave his post for any reason unless another security guard relieved him. 143Mr Paea was stationed outside on the street. He is seen in that location throughout the evening. 144QBE emphasised that Ms Williams' evidence that Mr Paseka was standing next to a security guard at the entrance to the hotel, when Mr Paseka was heard by her to be yelling across the street at Mr Orcher, was wholly inconsistent with anything that is depicted on the CCTV footage. QBE contended that Ms Williams was an unreliable witness and could not be accepted. 145QBE referred to authority.In Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [18], Gummow J pointed out that the resolution of any case in negligence turns upon the application of five basic matters of settled principle. He expressed them as follows: "[18] First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48." 146According to QBE, these principles are binding, but require some modification. The assessment of breach now must be made in accordance with the provisions of Division 2 of Part 1A Civil Liability Act, which in many cases may result in no practical difference: Adeels Palace at [23] - [26]; Waverly Council v Ferreira [2005] NSWCA 418 at [47]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [42] - [44]. 147As far as the first question is concerned, QBE submitted that it is well-established law that the licensee, manager, or operator of licensed premises owes patrons a duty to exercise reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons occurring on the premises. This is notwithstanding the decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254: see Adeels Palace [25] - [26]. However, it does not follow that any duty owed by DSSS Cousins is co-extensive with the duty of the hotel, particularly, where, as here, there is no suggestion that the hotel's duty had been wholly delegated to DSSS Cousins (assuming for the purpose of the argument that the Adeels Palace duty is delegable, given its interplay with statutory obligations). This is to be compared with what Brereton J said in Quintano v BW Rose Pty Ltd [2009] NSWSC 446 at [10]: "[10] A security firm contracted to provide security services to give effect to the licensee's obligation owes a duty of care to patrons, not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably have been anticipated [Collingwood v O'Reilly, [23]]. If a guard employed by such a firm neglects his duties, that is generally the responsibility of the security firm that employs the guard, not of the licensee/operator [Perkins v Redmond, [143]]. However, the duty of a security firm retained by the licensee/operator is influenced by the contract: if there is a complete delegation, then the security firm's duty will be similar to that of the proprietor; but if the firm is retained only to provide specific services, its duty is not enlarged beyond the prudent performance of those services." 148A critical fact is that Bowcliff was the holder of a master licence under the Security Industries Act. Mr Keough's evidence makes it clear that in discharging his obligations as a licensee, he devised, instituted and maintained the security system for the discharge of his statutory obligations to prevent the occurrence of violent, quarrelsome, or disorderly conduct in or about the premises. DSSS Cousins had a limited role only. 149QBE contended that the evidence establishes that DSSS Cousins' sole function was to provide labour to ACMS, who in turn supplied the labour to work within and as part of the hotel's security system. That system, as devised by Mr Keough, included overall supervision by him as the licensee, and in his absence the bar manager Mr Davies as well as the provision of the services of Mr Lokotui as a "permanent" employee and the services of up to two "outside" security guards provided under the hotel's contract with ACMS. QBE submitted that the evidence of Mr Keough, Mr Davies and Mr Lokotui establishes that Mr Lokotui was the security team leader. 150According to QBE, the fact that DSSS Cousins merely provided labour to work in the Bridge Hotel's system is a fundamental consideration going to the existence, nature, content, and scope of the duty of care. As it was put by Windeyer J in a different context in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85: "... Neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless, his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it. Secondly, the obligation of an architect who designs a building and supervises the building of it is not co-extensive with the obligation of a person who afterwards occupies it." 151QBE also referred to what Brereton J said in Quintano at [66]: "[66] [the security company] was not bound to do any more than the reasonably prudent and competent discharge of the duty that it had been contracted to perform. It was not [the licensee's] delegate for the purpose of discharging [the licensee's] duties to patrons. Its guard operated in accordance with the system and directions of [the licensee]. [The security company] was responsible only for the competent performance of duty by its employee, [the security guard]." 152QBE also referred to what McHugh J said in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [81]: "[81] Ordinarily the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk..." 153Gummow J's third, fourth and fifth principles are each concerned with questions of breach. As was said in Adeels Palace, it is of first importance to evaluate these questions in accordance with the provisions of ss 5B and 5C Civil Liability Act. The correct identification of the relevant risk of injury here, viewed prospectively from the standpoint of a reasonable person in the position of Mr Keough, was the risk that one of the persons associated with the hotel as either departing patrons or workers, and in the case of the latter, whether off-duty or not, would suddenly assault another person, not on the premises but across the road from the hotel. 154The logical starting point in terms of s 5B is identification of the specific precaution it is said Mr Paea failed to take against the correctly identified risk. The only proper available answer to the implicit question is that Mr Paea ought to have discharged his duties in accordance with the system instituted and maintained by the licensee, which he had been directed to follow. No separate or larger obligation arose out of the fact that he was a licensed security guard. The sole scope of his duty was to play his part in the hotel's system. It was QBE's contention that Mr Paea properly discharged his duty by performance. 155In terms of s 5B(1)(a) it may be said that, in a general sense, where alcohol has been consumed by patrons who are departing licensed premises in the (not so) early hours of the morning, there is always a risk that violent, quarrelsome or disorderly conduct may occur. This general level of risk is, however, insufficient to activate a response greater than the provision of the system of security that was in fact provided. 156Many of the cases concerned with breach of an hotelier's duty where an assault has occurred off the premises, focus upon the occurrence of specific earlier events between two or more identified patrons as a necessary element for a finding of foreseeability of a specific risk of conflict between the patrons concerned. The general, or background, risk is of itself insufficient to require the taking of particular precautions against a risk of violence between two or more identified persons: Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2; Portelli; and, Cregan Hotel Management Pty Ltd v Hadaway [2011] NSWCA 338. 157Other than Chordas, each of the cases referred to is a case where previous violence between the identified patrons was said to call for specific precautions to avoid subsequent events occurring off the premises. I was also referred to what was said by Giles JA in Cregan at [69] - [75] and by Basten JA at [81] - [89]. 158QBE submitted that in the present case, viewed prospectively from Mr Paea's standpoint, there was no history of any prior incident to enliven particular vigilance on his part. If what transpired between Izzy and Mr Orcher at the ATM within the hotel presaged further trouble outside it, that information was not passed on to him. If the fact that Mr Orcher and Ms Williams were asked to leave because of a noisy argument near the ATM suggested the likelihood of further trouble between them or with others outside the premises, that information was also not passed on to Mr Paea. 159According to QBE, nothing in the conduct of Mr Paseka during the time leading to him crossing Wellington Street suggested further trouble. This is said to be clear from the CCTV footage, which QBE described as "the only truly reliable evidence available from the time immediately before the assault". Mr Paseka is shown to have removed a bottle of beer from Izzy's hand, a helpful, non-aggressive action, and engaged with other patrons who were on the footpath interacting in a friendly, often affectionate, manner. There was no indication of any aggravation or aggression on the part of Mr Paseka at any stage when he was depicted on the footpath before the assault occurred. 160Nor did the fact that a number of patrons crossed to the other side of Wellington Street from the hotel enliven an obligation on the part of Mr Paea to move them on. QBE submitted that those patrons were "hardly disturbing the peace of the surrounding neighbourhood by gathering on that particular corner of Wellington Street and Victoria Road". No residences were situated nearby. Nor was there any evidence that any of the patrons had been violent, quarrelsome, or disorderly before, or after, the assault. 161QBE contended that the earliest evidence that anything was occurring which could possibly have required intervention is the CCTV footage recorded by camera 3 at 4.50:10am when Mr Paea is depicted looking across Wellington Street. There was simply no reliable evidence in the case against QBE as to what was occurring at this time. On the assumption that Mr Paea saw something that caught his attention as a professional licensed security guard operating within the hotel's security system, QBE submitted that there was nothing to suggest initially that anything was occurring which made the risk of physical injury to a patron foreseeable. There was nothing to suggest that Mr Paea was observing something occurring which made the particular risk of physical injury, which materialized, foreseeable and not insignificant. 162QBE submitted that there was no evidence to support a finding that a reasonable security guard in the position of Mr Paea would have done anything more than he did, which was to invoke the procedures established by the hotel as he was bound to do in accordance with ACMS's contract. That is to say, at 4.50:41am Mr Paea reported his concerns, whatever they were, to the guard stationed in the foyer. This is what he was supposed to do. There is unchallenged evidence that Mr Paea's concern was passed on by the guard in the foyer to Mr Lokotui. This was exactly how the hotel's system was supposed to work. The system provided that Mr Paea was then to remain at his post outside the hotel's entrance until Mr Lokotui attended and both crossed the road together. QBE submitted that there was simply no evidence to suggest that a reasonable person in Mr Paea's position ought to have called for Mr Lokotui's attendance any earlier than he did. Indeed, the earliest one can infer any particular untoward event may have been occurring is at 4.50:49am when Mr Paea, and other persons on the hotel side of Wellington Street, looks across the road. This is a mere four seconds before Mr Orcher is seen to fall to the ground with Mr Paseka standing near him from the images recorded by camera 6 at 4.50:53am. 163Whatever the position of the other defendants may be, QBE submitted that there was simply no negligence shown on the part of DSSS Cousins. For the same reasons, QBE submitted that Bowcliff's cross-claim against QBE must also fail.

[9]

Findings of fact 164In the light of this evidence and the parties' submissions, I consider that the following matters have been established on the balance of probabilities. 165First, Mr Paseka assaulted Mr Orcher shortly before 5.00am on 25 November 2007 when he punched him causing him violently to fall to the ground and strike his head. As a result of this assault, Mr Orcher sustained serious injuries. No party in these proceedings has contended that any other finding on this issue is warranted. The evidence is in any event overwhelming. 166Second, this assault took place on the corner of Victoria Road and Wellington Street, Rozelle, at a point approximately 15 meters from the entrance to the Bridge Hotel on the opposite side of Wellington Street. It was still dark at the time but CCTV footage of the incident and its aftermath clearly isolates its exact location. None of the witnesses who referred to the assault suggests that it occurred anywhere else. 167Third, shortly before the assault, Mr Orcher and Ms Williams had been asked to leave the hotel following an argument between them in the vicinity of the ATM inside the hotel. They left through the hotel entrance that opened onto Wellington Street and together proceeded to cross to the opposite side. Ms Williams then went alone to the service station to withdraw money from the ATM and returned from the service station intending to rejoin Mr Orcher only a very short time before Mr Paseka punched him. Ms Williams originally said that she did not see Mr Paseka punch Mr Orcher but later described seeing Mr Paseka come diagonally across Wellington Street, call out "woman basher", and then strike Mr Orcher with one punch. 168Fourth, I find that before Mr Orcher was assaulted there was a prior incident involving a confrontation between Mr Orcher and Izzy. This follows from, among other things, the description of events given by Mr Paseka in his police interview when he said that Mr Orcher and another man were arguing pretty loudly over some girl and that he "told them to calm down". It is this "disturbance" that Mr Orcher contends the people located on the hotel side of Wellington Street were looking at on the opposite side of the road. The incident occurred during a period of approximately two and a half minutes between when Mr Paseka is seen to walk out of shot in the CCTV footage to cross the street and the time when he punched Mr Orcher. It follows that I find that Mr Paseka was attracted to cross Wellington Street, where he punched Mr Orcher within approximately two and a half minutes of doing so, as the result of Mr Orcher participating in a verbal exchange with Izzy. (Whatever may have been the status of any disagreement between Mr Orcher and Ms Williams that commenced inside the hotel, and which resulted in them being asked to leave, I find that that disagreement had ceased at least by the time Ms Williams went to the service station ATM and had not resumed in any way before Mr Orcher was assaulted). 169I am unable to determine what was or what might have been the precise nature or extent of that exchange. It seems generally apparent that it did not involve physical violence. It appears only to have been a case of Mr Orcher and Izzy trading verbal abuse in the early hours of the morning in the street opposite the hotel. However, despite the relative paucity of the evidence about it, I consider that there is more than enough to establish that this incident warranted or necessitated some kind of action or intervention by or on behalf of Bowcliff or Mr Keough, or by DSSS Cousins. It was potentially violent, and certainly quarrelsome and disorderly, conduct. Quite apart from the question or whether it did warrant or necessitate intervention, it seems that by the time Mr Paseka had crossed the road, the incident between Mr Orcher and Izzy had already ended or was ending. This much emerges from the fact that Mr Paseka only seems to have engaged or to have become involved with Mr Orcher, and Izzy appears to have retreated, actually or notionally, in all respects from the confrontation. Consistent to a minor extent with this view is the fact that, according to Ms Williams, Izzy took off his shirt and put it under Mr Orcher's head as he lay on the pavement following the assault. 170I am unable to determine whether the argument or disturbance inside the hotel near the ATM involving Mr Orcher and Ms Williams shortly before they were asked to leave also involved Izzy. Mr Orcher has contended that Mr Lokotui's evidence was that he had observed "an interaction between Izzy and Mr Orcher near the ATM" but Mr Lokotui's evidence does not on my understanding of it support that. Mr Lokotui did not mention it in his statement. The evidence that he gave about the matter was as follows: "Q. You were there in the area near the ATM when Izzy came in and apparently spoke to Mr Orcher, weren't you? A. That's correct, sir. Q. And can you recall now what it was that Izzy said to Mr Orcher? A. I don't remember, sir. Q. You saw him using his arms to emphasise some point he was making, didn't you? A. That's correct, sir." 171Mr Lokotui agreed that Mr Orcher and Izzy were "speaking" near the ATM. It is not suggested that that conversation was heated or anything similar. The evidence does not indicate that there was an "incident". Mr Orcher and Ms Williams were asked to leave because of their own argument. It does not in any event appear to emerge as a significant factor in all of the circumstances, inasmuch as Izzy is according to some evidence later heard to be calling out to Mr Orcher from outside the hotel. The suggestion or implication that this was a carryover from something that started earlier is of little assistance to me. 172Fifth, I find that Mr Paseka was "on duty" and in the course of performing work of some sort, or in some capacity, for the Bridge Hotel at the time of his assault upon Mr Orcher. I find that Mr Paseka had not ceased his work as a glass collector at any time earlier in the evening before the assault took place. This is for the following reasons. 173Mr Keough said that Mr Paseka had stopped work, and Mr Lokotui supported that evidence. However, Mr Orcher submitted that the evidence of Mr Keough should not be accepted, and that his evidence that he spoke to Mr Paseka about stopping work on the night was "patently false". There is no reference to it in Mr Keough's statement and Mr Davies actually gave evidence that Mr Keough appeared to be "surprised" when Mr Davies told him about it the next day. Mr Orcher submitted that hotel staff were protecting Mr Paseka and that Mr Keough and Mr Davies gave their evidence on this topic in an unsatisfactory manner. I accept that submission. 174The printout from the payroll computer software at the hotel records Mr Paseka having ceased work at 3.00am. These records were completed after the assault had been committed by which time the potential liability of the hotel for its consequences would have become apparent. In line with that record, Mr Keough said Mr Paseka had become a paying customer drinking with friends at least by some time between 3.00am and 4.00am. Mr Keough said that he observed this himself. I am unable to accept that evidence. 175Mr Davies also gave evidence about when Mr Paseka stopped work. On one view, the conversation he said he had with Mr Paseka suggests that Mr Paseka stopped work at 2.00am. That conversation was not challenged in a way that compels me to reject it, although I have some doubt that its terms, as they are recorded in Mr Davies' statement, correspond closely if at all to the terms of the conversation in fact. The recorded conversation is stilted and formulaic and has a strong scent of fabrication about it. In short, it does not seem to me to align with the way anyone would speak about such a topic in the course of running a busy hotel. It is also to be contrasted with Mr Davies' statement suggesting that Mr Paseka stopped work at 4.00am, and has to be assessed in the light of his concession that he did "not have a correct bearing on the precise time that he knocked off". 176The one piece of evidence that relies neither on memories nor records is the incident in which Mr Paseka is seen on CCTV recordings to take a bottle from Izzy outside in the street after the latest time that anyone otherwise says that he had ceased work. On behalf of Mr Orcher it is contended that this activity is evidence of his continuing employment and consistent only with the performance of duties on behalf of the hotel as one of its employees. In contrast, the hotel contends that it is not evidence of any such thing, principally for the reason that Mr Paseka was only ever employed as a glass collector and that his duties in that capacity did not extend to security, or quasi-security tasks, such as enforcing the restrictions upon the taking of opened alcohol containers out of the hotel into the street. Mr Paseka said he was not a friend of Izzy and there is no worthwhile contrary evidence about this. It is therefore curious that Mr Paseka would or could take a bottle from an unknown patron unless he did so in the course of some authorised activity for the hotel or in circumstances where he and patrons thought he had such authority. 177There is certainly no evidence from any witness that Mr Paseka actually continued to perform the duties that he ordinarily performed as a glass collector up to the time of the assault, and the only evidence of his activities emerges from the CCTV footage. That is to say, no witness gave evidence of having seen Mr Paseka collecting glasses or cleaning and emptying ashtrays or other related duties in the time between when he is said to have ceased work and just before he is seen on the video in Wellington Street. That absence is perhaps unsurprising, as the tasks concerned are hardly likely to have attracted attention unless they were associated with some other notable or remarkable event. On the contrary, the only accounts of what Mr Paseka was doing are those of Mr Keough and Mr Davies, which suggest that Mr Paseka was socialising with friends rather than working. I have expressed some considerable doubt about the truthfulness, or at least the reliability, of that evidence. 178I note however in this very context that Ms Williams also had something to say. The following is a portion of what she said during her cross-examination: "Q. You had seen on the night of the assault Mr Paseka wandering around the hotel, hadn't you? A. Yeah. Q. With nothing in his hands? A. Yes, he was actually sitting with Nunia and Justine. He was sitting, I have seen him sitting with Nunia and Justine throughout the night." 179Two things need to be mentioned about this evidence. First, there is some possibility that it was intended to refer to a different occasion to the night that Mr Orcher was assaulted. That emerges from a reading of the immediately preceding question, which was withdrawn following objection, which was, "I want to suggest to you that the week before Mr Orcher was assaulted Mr Paseka wasn't working at the hotel?" The evidence cited above is not therefore obviously concerned with a later occasion. Secondly, however, the evidence does not accord with any other version of what Mr Paseka was doing. All other versions have Mr Paseka working at some time. Ms Williams' version may be consistent with versions given by Mr Keough and Mr Davies if account is taken of the fact that Ms Williams did not arrive at the hotel until after midnight, when Mr Paseka started work. In that sense her reference to "throughout the night" must be given a more limited reference than if taken literally. At all events, I have factored this evidence into my consideration of the issue of whether or not Mr Paseka had stopped work before he assaulted Mr Orcher. 180There was also in my view an absent piece of the puzzle that appears to me to be important and potentially persuasive on this issue. If Mr Paseka had stopped work as Mr Keough and Mr Davies contend, there must have been some person, or maybe more than one person, who would either have assumed his duties as a glass collector or who took on the added duties whilst also performing some other role on the night. There is ample evidence to show that the hotel was busy. It cannot be the case that no person performed the role of glass collector if Mr Paseka actually ceased doing it. The wage records were in evidence for other purposes, and yet I was not taken to any part of them to demonstrate that some other employee stepped into Mr Paseka's role when he allegedly stopped work. No such employee was called to give evidence about it. The inference that arises is that Mr Paseka did not stop work. 181I also consider that it is unlikely, although it is possible, that Mr Paseka would arrive for work at midnight, but cease work within two hours, simply because things had become "a bit quiet". It is not my experience, and it seems to be highly unlikely, that a casual employee would surrender a valuable employment opportunity, for which he had taken the trouble to arrive at his workplace at a potentially inconvenient hour, and simply cease work because the need for his services had slowed. More likely in my experience is the probability that Mr Paseka was not unhappy to be paid for doing less than he was used to, and may even have sought to assist with other tasks, such as aiding compliance with the Bridge Hotel House Policy, by collecting bottles from customers in the street with the tacit approval of nearby the security staff. 182It is also instructive to observe that Mr Lokotui told Mr Paseka to go into a particular part of the hotel and stay there immediately after the assault on Mr Orcher, which Mr Lokotui had either directly observed or of which he had by then become completely aware. If Mr Paseka had been a patron of the hotel, and not an employee, one would hardly expect that a person employed to maintain security for the hotel would be inclined to invite him to remain in the hotel premises, apparently unsupervised, under any circumstances. 183From whatever frailties the evidence about this issue may suffer, it predominantly points with varying degrees of strength to the conclusion that Mr Paseka was still working when he assaulted Mr Orcher. I am satisfied on the balance of probabilities that this was so. 184Sixth, I find Mr Paseka was only ever employed as a glass collector and not in any role connected with the provision or maintenance of security at the hotel. He is universally described as a "glassy" and was paid as such. He was neither qualified nor licensed to provide security. The fact that he had a strong and imposing physical presence may have been viewed as an advantage by his employer but did not combine with any other factors to alter his employment status or duties. That status is not altered by the bottle incident with Izzy in the street. 185Seventh, I find that Mr Paseka had previously assaulted Mr O'Reilly. I accept the evidence of Ms Williams to this effect. Even though her recollection of some details was only fair, her exclamation to Senior Constable Couldrey at the scene is consistent with truth. Mr O'Reilly was unable to identify his assailant but gave evidence that clearly confirms the incident. Ms Williams knew who Mr Paseka was and no suggestion was made that she could not truthfully identify him as the person who had assaulted Mr O'Reilly. 186Eighth, even though it is not possible to be certain, I find on the balance of probabilities that Mr Paseka was not severely intoxicated or heavily affected by intoxicating liquor at the time of the events in question. The most obvious basis for such a finding is that he commenced work at midnight and continued to work until at least 2.00pm, on one account, and in my opinion until the assault occurred. There is no indication that can be gleaned from the CCTV footage that he was intoxicated. The only evidence of the amount that Mr Paseka drank is contained in his record of interview with the police. That account is inconsistent with his level of function or apparent lack of impairment taken from the CCTV footage.

[10]

Consideration - liability 187It is trite to observe that the liability of a defendant, sued in the capacity of an occupier of licensed premises, for the consequences of injuries allegedly sustained by a patron whilst upon the premises, or in their vicinity, will turn necessarily upon the particular facts of the case. It follows from this that the utility and applicability of the many and varied statements of legal principle to be found expressed in the several cases in this area of the law are themselves necessarily constrained by sometimes slight but nevertheless significant variations in the particular facts of the cases from which they emanate. So much will already be apparent from those cases to which I have referred or which I have cited. 188Bearing that difficulty in mind, it seems to me to be profitable to attempt to summarise the principles that arguably bear upon an assessment of the competing claims in this case, with particular reference to those involved in it. 189First, an hotelier or licensee may owe a duty of care to take steps to protect or prevent injury to a patron of the hotel as a matter of general principle but it will depend upon the particular circumstances of each case whether or not that duty can be found to exist or whether it has been breached. Bowcliff and Mr Keough owed a duty to Mr Orcher to take reasonable care to prevent injury to him from the violent, quarrelsome or disorderly conduct of other persons on the premises of the Bridge Hotel. The duty is consistent with the duty imposed by statute upon Mr Keough as the licensee. It is a duty the performance of which is supported by the provision of statutory power to prevent entry and to remove persons from the hotel using reasonable force: Adeels Palace at [26]. 190Second, depending upon the particular facts of the case, the duty may extend to circumstances where the wrongdoing causing injury to a person such as Mr Orcher occurred in a public street. The element of control, together with the statutory obligations imposed upon the licensee and occupation of the site, is the foundation of the duty. The element of control may in appropriate circumstances apply to the control of someone such as Mr Orcher as a victim as well as an aggressor such as Mr Paseka: Portelli at [61]. 191Third, even though the control able to be exercised by Bowcliff or Mr Keough can be the foundation of the duty of care owed to someone such as Mr Orcher, the duty owed does not amount to a positive obligation to become his protector and guardian whenever danger outside the hotel can be reasonably apprehended: Portelli at [61]. 192Fourth, the boundary of the duty owed by Bowcliff and Mr Keough to someone such as Mr Orcher cannot always or necessarily be confined to the curtilage of the Bridge Hotel: Desmond v Cullen at [4]. 193Fifth, the question will always be whether, in the circumstances, a duty was owed to Mr Orcher, in respect of the damage suffered by him, to exercise reasonable care in some relevant respect arising from the occupation of premises, the control involved in any such occupation, any statutory responsibilities in relation to the licence or in relation to the conduct of the establishment and any assumption of responsibility: Portelli at [69]. 194Sixth, someone in the position of Bowcliff or Mr Keough may be liable for injury to someone such as Mr Orcher caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity and the statutory obligation of Mr Keough to control conduct upon licensed premises pursuant to the Liquor Act: Collingwood Hotel at [21]. 195Seventh, there is no statutory cause of action that arises from a breach of the Liquor Act. Rather, the relevant duty to exercise reasonable care for the safety of patrons depends upon proof that Bowcliff or Mr Keough knew or ought to have known of facts requiring intervention to protect patrons such as Mr Orcher by taking reasonable steps to safeguard him from a foreseeable risk of harm: Collingwood Hotel at [21]; Wagstaff at [28] - [37]. 196Eighth, the existence of a duty of care owed by Bowcliff or Mr Keough to Mr Orcher does not depend on the existence of a "special relationship" recognised by law, but on the element of control. Although the Liquor Act does not impose a statutory duty of care on Mr Keough, enforceable by Mr Orcher, by conferring a power of control and an obligation to exercise that power, the statute provides the basis for a finding with respect to control, which in turn attracts the common law duty of care and informs its content: Spedding v Nobles; Spedding v McNally [2007] NSWCA 29; (2007) 69 NSWLR 100 at [50]. 197Ninth, a security firm such as DSSS Cousins contracted to provide security services to give effect to Mr Keough's obligation's as licensee of the Bridge Hotel owes a duty of care to patrons such as Mr Orcher, not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably to have been anticipated: Collingwood Hotel at [23]. If a guard employed by a company such as DSSS Cousins neglects his duties, that is generally the responsibility of DSSS Cousins as the guard's employer, not of Bowcliff or Mr Keough: Perkins v Redmond Co Pty Ltd [2007] NSWDC 147; (2007) 5 DCLR (NSW) 21 at [143]. However, the duty of DSSS Cousins, retained by Bowcliff or Mr Keough, is influenced by the contract. If there is a complete delegation, then DSSS Cousins' duty will be similar to that of the proprietor; but if the company is retained only to provide specific services, its duty is not enlarged beyond the prudent performance of those services: see Quintano at [10]. 198Tenth, the appropriate inference to be drawn as to the duties of security personnel must take account of the general provisions of the Liquor Act, pursuant to which Mr Keough or his employees had the power to turn out an intoxicated person using such reasonable degree of force as may be necessary: Zorom at [37]; Wagstaff at [34] - [36]. 199Eleventh, in light of the fact that the DSSS Cousins' security personnel were contracted by Bowcliff and Mr Keough to ensure compliance with Mr Keough's statutory obligations under the Liquor Act and his specific obligations under his licence, the obligations of the security personnel would have included turning out persons thought to be intoxicated, and those involved in or likely to be involved in violent or quarrelsome conduct. The duties would have included patrolling the area in the vicinity of the hotel to ensure that patrons, not limited to those turned out of the premises, did not cause nuisance or annoyance to the neighbourhood: Zorom at [37]. 200Twelfth, there are circumstances under which an employer may become vicariously liable for unauthorised acts of an employee, even when those acts are criminal and even when the employer has expressly instructed the employee not to perform acts of that kind: Sprod at [52]. The only explanation for such a result is that of policy: Sprod at [53]. An employer is more likely to be liable for criminal acts performed by an employee in disobedience of instructions if the act complained of was not a gratuitous unprovoked attack upon a patron, was an act performed as on behalf of the employer and in supposed furtherance, or in the intended pursuit, of the interests of the employer and to which the ostensible performance of the employer's work gave occasion: Sprod at [80] - [81]. 201Mr Orcher was asked to leave and was escorted from the hotel with Ms Williams as the result of their own conduct. Neither of them was threatened by Mr Paseka inside the hotel premises at any time on the night of the assault and neither had been threatened on any previous occasion by Mr Paseka as far as the evidence before me suggests. Whatever it was that Izzy was doing by the ATM earlier in the evening before Mr Orcher and Ms Williams were asked to leave, it did not as far as I can see amount to conduct that was aggressive or offensive or indicative of the making of any form of physical threat to them. It follows in my view that at the time Mr Orcher and Ms Williams were removed from the hotel they were not in any obvious or apparent danger or subject to any known or reasonably anticipated threat of violence or harm of which Bowcliff or Mr Keough were or ought reasonably to have been aware. Therefore, in the circumstances of this case as I have found them to be, neither Bowcliff nor Mr Keough breached any duty that they owed to Mr Orcher, to take reasonable care for his safety as a patron of the Bridge Hotel, at any time up to and including the point where he was escorted from the hotel and onto Wellington Street at a little after 4.47am. 202All the times are taken from the digital timers displayed on the CCTV footage. There is no evidence that all of the cameras were calibrated to the same time. It is not possible reliably to say that times taken from different cameras produce an accurate indication of the duration of anything that is depicted. For example, the camera that shows the entrance to the hotel is different to the camera that depicts Mr Orcher lying on the footpath following the assault. The periods and times to which I have refer in these reasons are therefore based upon the assumption that all of the CCTV cameras are set to the same time or something very close to it. 203The critical events occur between approximately 4.47am and 4.50:53am. Within that period of almost four minutes, Mr Orcher left the hotel with Ms Williams and ended up across the street in a critical condition following Mr Paseka's attack. Slightly earlier, at 4.46:29am, Izzy is seen pointing and speaking to Mr Orcher at the ATM inside the hotel. Mr Orcher and Ms Williams leave the hotel at 4.47:11am or thereabouts. Mr Lokotui emerges from the same door of the hotel only a matter of seconds later. He is followed by Izzy about 15 seconds after that. At about 4.47:44am, Mr Lokotui points to a bottle that Izzy is holding. Izzy drinks from the bottle and is approached by Mr Paseka who takes it from him. Izzy immediately crosses Wellington Street while Mr Paseka remains talking to other hotel patrons outside the entrance. At 4.48:28am, Mr Paseka crosses Wellington Street. At 4.50:10am, Mr Paea appears to be looking across Wellington Street in the direction of the corner with Victoria Road. 204Following the assault, the CCTV footage shows people moving around in every direction. Mr Paseka comes back to the hotel side of Wellington Street at 4.51:27am. Thereafter, until he enters the hotel at 4.54:22am, Mr Paseka is seen to cross the street in each direction a number of times. 205Mr Orcher alleges that Bowcliff directly breached its duty of care by failing to prevent injury to him as a patron, caused by the violent, quarrelsome or disorderly conduct of other persons in the vicinity of the hotel, and by failing to take precautions against a risk that an untrained and unqualified person intervening in an altercation between him and Izzy might overreact and cause him harm. As I have already indicated, the precise nature and extent of the altercation between Mr Orcher and Izzy cannot be known with any certainty. However, what is clear is that it undoubtedly attracted Mr Paea's attention, although regrettably not his involvement. It is also unclear what stage the altercation had reached when Mr Paseka decided to become involved. No one gives evidence of the conflict erupting between Mr Orcher and Izzy actually coming to blows but what occurred was plainly quarrelsome and disorderly conduct, and was potentially violent. It was this disturbance that provoked Mr Paseka's fateful "intervention". Mr Paseka's version was that he went over to Mr Orcher and Izzy at the point "when they started kind of talking a bit loud". 206When Mr Paseka first noticed this disturbance he was, in his words, "just chilling with the bouncers". He was not employed to perform security duties and was not authorised to do so. He was not doing so. To the extent that he then decided to become involved in anything taking place between Mr Orcher and Izzy, he did so on his own behalf, as an officious intermeddler, and without the express or implied sanction of Bowcliff or Mr Keough. 207The assault on Mr Orcher was a gratuitous and unprovoked attack. I include in that analysis the suggestion from Mr Paseka that Mr Orcher was, in effect, shaping up to him or, as he described it, "jumping up with his hands open". He took a step back and then as soon as Mr Orcher said something to him, Mr Paseka "just hit him". That appears to me to have absolutely nothing at all to do with the performance of his duties as a glass collector. The actions of Mr Paseka appear to be actions borne of some unknown and unexplained personal animosity towards, or resentment of, Mr Orcher and not in any way actions performed on behalf of Bowcliff or Mr Keough. The actions do not appear to me to have been done in furtherance of their interests as his employer or the licensee of the hotel. Nor could it be said in my view that Mr Paseka's actions amounted to conduct by him in the performance or satisfaction either of Mr Keough's undertakings as licensee or in the performance of his obligations under the Liquor Act. They were not actions performed in furtherance of his commercial interests. I do not consider that either Bowcliff or Mr Keough is vicariously liable for Mr Paseka's assault upon Mr Orcher. 208In my view, the only viable basis upon which it could be said that Bowcliff is liable to Mr Orcher is that it permitted Mr Paseka to assault him or that it failed to take any or any reasonable steps to prevent Mr Paseka assaulting him: particular (e). The starting points are exhibits "M" and "N". The instructions relating to the control of the front door are relevant. The first is that security staff "maintain vigilance". The disturbance between Mr Orcher and Izzy should have alerted security staff to be vigilant both as to what was occurring and as to who may be getting involved. Part of the instructions, reinforced by, if not indeed the source of, the undertakings given to the Board, was to patrol "in the vicinity of the premises" to ensure "patrons depart the hotel and the neighbourhood in a quiet and orderly manner and to ensure that they do not disturb the neighbourhood". Even having regard to the little that is known of the disturbance between Mr Orcher and Izzy, I am prepared to conclude that it was such as to amount to a disturbance of the neighbourhood. 209Mr Paseka was working for the hotel at the time he crossed Wellington Street. There can in those circumstances be no issue in my view that Bowcliff's employees had the authority as well as the ability to control Mr Paseka's movements and to prevent him from becoming involved. Mr Paseka was subsequently compliant with directions given to him by Mr Lokotui about what he should do and where he should go following the assault when Mr Lokotui knew he "could be in trouble". The very fact that Mr Paseka left the hotel side of Wellington Street in response to the disturbance should of itself have alerted vigilant or alert Bowcliff employees to the prospect that the incident would or might escalate if Mr Paseka intervened. The security staff were supposed to be vigilant. In my opinion Bowcliff breached its duty by failing either to take steps to intervene in the disturbance in the first place or to prevent Mr Paseka from doing so himself. The timely presence of Bowcliff security staff on the other side of Wellington Street when the disturbance erupted would have meant that they would have been on the scene before Mr Paseka arrived in time to quell the disturbance or would otherwise have acted as a deterrent to him joining in at all. As Mr Keough confirmed in his evidence, "we want patrons safe and he [Mr Lokotui] is there to make sure that partons are safe". The element of control, in this case specifically the ability to control Mr Paseka, is the foundation of the duty of care with which Bowcliff failed to comply. This is not a case of some stranger to the hotel performing acts of aggression against a patron in circumstances or in a location where Bowcliff employees were powerless to intervene. 210The whole incident was also entirely foreseeable. I do not suggest that the precise way in which Mr Orcher was assaulted was predictable in every detail. However, the possibility that violence of some sort might erupt was predictable. That was after all one of the reasons, if not the main reason, why Bowcliff and Mr Keough went to the trouble and expense of having trained and qualified security personnel on duty outside the front door of the hotel on busy nights. As Mr Keough also said in his evidence, "we would always try and stop anyone getting injured if possible". It was also entirely foreseeable that Mr Paseka's "interest" in the interplay between Mr Orcher and Izzy was likely to lead to an escalation of the disturbance rather than to its reduction. This is at least because Mr Paseka was not trained as a security guard, and was not authorised to intervene in disturbances between or among patrons. An alert or vigilant security guard should have reacted to prevent Mr Paseka from ever becoming involved. 211It is apparent from exhibits "M" and "N" and from the evidence from Mr Lokotui and Mr Keough that the role of the security guards was not only to deal with disturbances when they broke out but as far as possible also to anticipate and prevent them. That suggests to me that in the circumstances of this case either Mr Lokotui or Mr Paea should have been alert or sufficiently vigilant to anticipate the general likelihood that the events that occurred might occur and they should have taken active steps to prevent them. The evidence is that they remained stationary and unmoved on the hotel side of Wellington Street, no more than mildly inquisitive and generally uninterested, observing but not intervening, in a disturbance that they should have prevented. If the disturbance was sufficient to attract Mr Paseka to cross Wellington Street, it was sufficient in a legal sense to have required the hotel security staff to do likewise. Nor is that view based upon the notion that the hotel had some positive obligation to become Mr Orcher's protector or guardian. The disturbance was of the kind which, according to the hotel's security policies and the licensee's undertakings to the Board, demanded intervention by its security staff. Timely compliance with the rules and the undertakings would have prevented the assault, or would have significantly reduced its likelihood. 212Nor do I consider this to be a case where previous violence between identified patrons on the licensed premises was required before there could be said to be a call for specific precautions to avoid subsequent events occurring off the premises. In the first place, the assault upon Mr Orcher was not committed by another patron but an employee of the hotel. In the second place, the dispute between patrons on the opposite side of Wellington Street was the very event that called for intervention or a response in accordance with the hotel security guidelines or the undertakings given to the Board. In the third place, it was not a case of an incident that could only have been foreseen or predicted or anticipated upon the basis of prior suspicious conduct: it was in fact an incident that unfolded before the very eyes of the onlooking security guards. They should not have assumed that all would be well if they did nothing and they breached their duty of care by doing nothing. 213Section 5B of the Civil Liability Act is as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 214For abundant caution I indicate that I consider the risk of injury to Mr Orcher as the result of an assault occasioned in the context of escalating violence to have been foreseeable. Not only was it objectively foreseeable as a risk of which Bowcliff knew or ought to have known, it was also a risk with and for which it specifically engaged trained and licensed personnel to deal. Moreover, a reasonable person in the position of Bowcliff would have instructed Mr Paseka not to intervene, or would have taken steps to prevent him from doing so. The risk was not insignificant and was accepted by Mr Keough to be one that was an ever present and reoccurring incident of the operation of licensed premises and the sale of intoxicating liquor. Even without such recognition, the risk was notoriously not insignificant in the conduct of an hotel with late night trading into extended hours. Bowcliff took the precautions of instructing staff and trained security personnel. A reasonable person in the position of Bowcliff would have utilised its staff to implement or activate its own prescribed precautions to prevent the harm in the ways I have earlier described. 215In determining whether a reasonable person would have taken precautions against the risk of harm concerned, I have taken into account at least the matters referred to in s 5B(2) of the Act. 216So far as concerns the case against DSSS Cousins I accept Mr Orcher's contentions that for the purposes of s 5B of the Act, the risk of harm and the duty owed by DSSS Cousins are coextensive with the case pleaded against Bowcliff alleging that Bowcliff permitted Mr Paseka to engage in conduct involving patrons for which he was not trained, qualified or licensed and because it did not intervene to prevent Mr Paseka becoming involved in the dispute between Mr Orcher and Izzy. 217Specifically, Mr Paea was trained and qualified. He had more than an ample opportunity to intervene before Mr Paseka became involved and yet he did nothing. He could and should have intervened, as a trained security guard, either to prevent Mr Paseka becoming involved in the altercation at all or before it escalated to the point of Mr Paseka's attack upon Mr Orcher. It was not sufficient to observe what was happening on the opposite side of Wellington Street, and to take an expectant, and unnecessarily optimistic, approach to what might occur. The developing situation called for action by him, or someone in his position, and he had sufficient time within which to act if he had been vigilant and alert and had acted accordingly. It was a breach of duty to do nothing at all in the circumstances. 218It follows that I reject QBE's submissions that the earliest evidence that anything was occurring which could possibly have required intervention is the CCTV footage recorded by camera 3 at 4.50:10am when Mr Paea is depicted looking across Wellington Street. I do not agree that there was simply no reliable evidence in the case against QBE as to what was occurring at this time. On the assumption that Mr Paea saw something that caught his attention as a professional licensed security guard operating within the hotel's security system, it was sufficient to put him on notice that something was occurring which made the risk of physical injury to a patron foreseeable and not insignificant. The evidence goes at least as far as to establish that Mr Orcher and Izzy were engaged in some form of altercation that was quarrelsome and disorderly and potentially violent. 219I also reject the submission by QBE that the earliest one can infer any particular untoward event may have been occurring was at 4.50:49am when Mr Paea, and other persons on the hotel side of Wellington Street, looks across the road. This is a mere four seconds before Mr Orcher is seen to fall to the ground with Mr Paseka standing near him from the images recorded by camera 6 at 4.50:53am. This submission ignores the evidence that Mr Paseka crossed Wellington Street heading in the direction of the disturbance almost two and a half minutes earlier at 4.48:28am. That was more than a sufficient time within which to intercept Mr Paseka to prevent him either crossing Wellington Street or becoming involved in the disturbance. 220In my view DSSS Cousins owed the duty of care to Mr Orcher for which he contends, and it breached that duty. 221I was not addressed by any defendant in any detail at all upon the question of causation. QBE made a general and formal submission that no negligence on its part caused Mr Orcher's loss. Bowcliff and Mr Keough submitted only that there was insufficient time for their security guards to do anything to prevent the assault in the short period between when the risk materialised and when the assault occurred. In an apparent further elaboration of that submission they contended that the absence of any precipitating event or conduct, such as an earlier scuffle or other altercation between Mr Orcher and Mr Paseka that might have put them on notice of an impending problem, meant that their ability to react in the space of about two and a half minutes was severely, if not completely, compromised, and that in that sense there could be no sufficient causal connection between anything that they allegedly failed to do and the assault upon Mr Orcher. 222It will be apparent that I do not find that submission to be attractive. In my opinion there was more than sufficient time for any of the defendants to act, and to react to the admittedly rapidly unfolding events. The period of approximately two and a half minutes between when Mr Paseka commences to cross the street and the assault upon Mr Orcher was more than adequate to have permitted alert and vigilant security guards to intervene in the ways I have earlier described. 223In terms of s 5D(1)(a) of the Civil Liability Act, none of the defendants contended that their negligence was not a necessary condition of the occurrence of the harm, other than in terms of the timing of the events in question. None of the defendants contended at all that it was not appropriate for the scope of their liability to extend to the harm caused to Mr Orcher for the purposes of s 5D(1)(b) of the Act. Submissions to that effect were made on the questions of the very existence or extension of a duty of care to patrons injured beyond the licensed premises, and the breach of any such duty, but none was directed to the issue of whether or not it is appropriate for the scope of any liability they may have to extend to the harm caused by the assault. I consider that it is. 224Section 5R(1) of the Civil Liability Act provides uncontroversially that "[t]he principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm". I am not satisfied that Mr Orcher was guilty of any contributory negligence. He did not incite the attack upon him by Mr Paseka. As I have already indicated, that attack was gratuitous and unprovoked. It was not possible for him to do more in the circumstances to take care for his own safety in response to a punch that effectively came from nowhere and for no reason. Mr Orcher did fail to leave the vicinity but did not fail to do so in circumstances that amount to a contribution to the harm that he suffered. His presence there was related to what happened to him but his presence there was not a breach of his obligation to take proper care for his own safety. Finally there was no opportunity in the circumstances to inform hotel staff of anything and certainly no opportunity to call the police. Both suggestions depend upon some ability to appreciate the threat that Mr Orcher posed. No evidence supports the contention that Mr Orcher should have formed any such appreciation before he was assaulted. It does not follow in my opinion that just because Mr Orcher has established that there was something to which Bowcliff or Mr Keough or DSSS Cousins were required to respond, that it must also have been apparent to an untrained patron such as Mr Orcher, or that he should in those circumstances have done something about it himself.

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The fourth cross-claim 225QBE has denied that it is liable to Mr Orcher or to Bowcliff on its cross-claim seeking contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act. It relied in defence of the cross-claim upon the grounds pleaded in its defence to Mr Orcher's claim against it. In accordance with s 5(2) of the Act, "the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage". In my opinion, upon the basis of the liabilities to Mr Orcher of the parties to the fourth cross claim discussed above, a just and equitable apportionment of Mr Orcher's damages as between Bowcliff and Mr Keough on the one hand and QBE on the other hand is 70 percent to the former and 30 percent to the latter. 226In my opinion the liability of Bowcliff and Mr Keough is greater for the reason that the security system within which all security staff at the Bridge Hotel were required to operate was designed and implemented by them. They were the ones who effectively gave undertakings to the Board and who formulated the Bridge Hotel Security document that recognised that an undertaking had been given to the Board to ensure that patrons departed the hotel and the neighbourhood in a quiet and orderly manner. To that end on busy nights the security staff were specifically required to patrol outside and in the vicinity of the hotel "to ensure this". Mr Keough accepted in his evidence that he expected the trained security guards to operate together as a team. The most significant level of responsibility for the operation of that team must in my opinion be attributed to Bowcliff and Mr Keough.

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The evidence - damages 227There is no contest in these proceedings about the nature and extent of Mr Orcher's injuries and disabilities. The following opinion, expressed by Professor McLeod in his 27 July 2009 report is representative of the views expressed by all of the medical experts: "In my opinion the accident was solely responsible for the injuries and disabilities described above...there is no evidence of functional overlay. He did not attempt to exaggerate his complaints...he will have permanent impairment of cognitive function and emotional control. He may continue to have epileptic seizures...he may require further investigation with electroencephalography and treatment with anti-convulsants..." 228Associate Professor Fearnside's report of 6 August 2010 also contains the following uncontroversial summary: "By way of background, John Orcher sustained severe head injuries and a traumatic brain injury as a result of an insult...at the Bridge Hotel Rozelle. He was admitted to RPAH and subsequently was treated at Royal Ryde Rehabilitation Centre. The period of traumatic amnesia was assessed at 50 days. Following the injury, he experienced cognitive problems with impaired memory, short concentration and emotional and behavioural problems, suggestive of some disinhibition with easy frustration, angering but no abuse or violence. A major problem for Mr Orcher was post traumatic epilepsy, which had occurred following the injury but when he was assessed on 20 January 2009, he had not been investigated nor reviewed for this." 229Mr Orcher gave evidence of his current and continuing problems. He complained of what he described as "head spins", which he experiences every couple of months. When they are at their worst, these incidents cause him to fall to the ground and shake. He has no sense of smell or taste and Mr Orcher feels that he has lost fitness and strength as the result of his injuries and the inactivity that they have produced. He gets rashes that affect his back and his hands. Mr Orcher suffers from severe depression and mood swings. He becomes argumentative easily. His impatience was evident in the course of his evidence before me. He has poor memory. 230Mr Orcher said that his inability to work causes him considerable distress. He attended some work with J J Robinson of Lilyfield after his assault as a forklift driver working long hours. He lasted there for about one month. He found that he regularly needed time to rest and regain his composure when he had dizzy spells. This did not find favour with his employer and he did not survive the initial three-month trial period. 231Mr Orcher has not had employment since then. He is not qualified for other types of work. He has always been involved in manual work, of which forklift driving is the most prominent. 232Ms Williams and Mr Orcher's mother and sister gave evidence about him. He is now separated from Ms Williams. She gave evidence that Mr Orcher now tires easily and that his memory is poor. His aggressive conduct has become so bad that she was forced to seek an AVO against him. She cannot leave their children with him alone. His mother complained that Mr Orcher is very demanding and that one has to be delicate when dealing with him lest he react badly. She confirmed that Mr Orcher's concentration and memory appeared to be poor. Mr Orcher's sister spoke of his mood swings. She complained that she had "lost her brother" because he was now so different. She gave evidence about Mr Orcher's mood swings and her observation about the deterioration of his relationship both with Ms Williams and his mother.

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Submissions on damages Mr Orcher 233Mr Orcher sustained a fracture to the base of his skull with minor subarachnoid bleeding over the left frontal lobe and bilateral subfrontal contusions. He also sustained a minor contusion in the left temporal lobe and there was evidence of hypodensity in the left occipital lobe. He underwent a bi-frontal craniotomy and insertion of an extraventricular drain. He remained in intensive care for more than three weeks prior to transfer to the neurosurgical ward. He was reported to display "continued impulsivity" and "lack of insight". Speech pathology and neuropsychological assessments revealed cognitive impairments consistent with frontal lobe pathology including mild impairments in attention, difficulty with divided and alternating attention, reduced abstract reasoning and difficulty with inhibition. 234Mr Orcher submitted, having regard to his ongoing medical problems, and the severity of his original injury, that for the purposes of damages for non-economic loss he should be assessed as falling somewhere in the range of between 75 percent and 80 percent of a most extreme case, which at the relevant time was calculated as $450,000. 235Past medical expenses were agreed in the sum of $1,212. 236Mr Orcher claimed future medical expenses. General practitioner visits from time to time were said to be necessary. Four visits per year are claimed at the rate of $60 per visit. Mr Orcher takes anti-epileptic medication costing $40 per month. Two annual visits to a neurologist at the rate of $200 per visit are also claimed. The total annual amount for these items is therefore $1120. As at the date that I reserved judgment in these proceedings, Mr Orcher had a life expectancy of 53 years, with a multiplier at five percent of 988.9 producing $21,300. 237Shortly before he was assaulted Mr Orcher was working for a storage company as a storeman/labourer. He spent some time during the day working as a forklift driver, for which work he has been licensed for some years. The unchallenged evidence is that he was receiving about $680 per week net for that work. He has not worked more than one month in any capacity since the assault. 238Mr Orcher contended that his past wage loss calculated at that rate up to 3 February 2012 was $680 for 264 weeks amounting to $179,520. By my calculation, however, the period from 25 November 2007 until 3 February 2012 is not in fact 264 weeks but 219 weeks. That would produce a sum, calculated at the same rate, of $148,920 for past economic loss. 239Mr Orcher contended that, but for his injuries and disabilities, it was reasonable to assume that he would have worked until the age of 67. He contended that there was no evidentiary basis for a contrary assumption. Upon the basis of that assumption, Mr Orcher submitted that his future loss of earnings should be calculated as $680 per week for 24.5 [sic, 34.5] years at a multiplier of 870.75 less 15 percent for vicissitudes producing $503,293. 240Lost employer superannuation contributions are claimed at the rate of 11 percent of the net past and future sums for economic loss. 241Mr Orcher also claims damages for past and future domestic assistance. He gave evidence with respect to his general difficulties remembering to do tasks around the house. He claims that he fails to perform domestic chores without prompting as a result of his disabled memory. Mr Orcher said that he was physically able to perform most necessary tasks while living alone but would need assistance with heavier jobs and would require supervision. 242Mr Orcher relied upon the report of the occupational therapist Ms Bronwyn McKenzie dated 31 May 2010, which was prepared for Bowcliff but tendered by him, in support of his claim for domestic assistance. In addition, Associate Professor Fearnside and Dr Bowers support the need for domestic assistance. 243At appendix 5.2 of her report, Ms McKenzie sets out her calculations for the value of past care having regard to her assessment of Mr Orcher's needs in the period between the date of the assault and the date of her report. Only in the period between 26 January 2008 and 31 December 2008 does Mr Orcher qualify for damages for domestic assistance under the applicable thresholds in the Civil Liability Act, having regard to the number of hours of care that are needed. Ms McKenzie calculates that Mr Orcher is entitled to a sum of $15,951 for past care needs at the rate of $31.75 per hour. 244In respect of future care, Ms McKenzie proceeded to assess the value of Mr Orcher's needs for domestic assistance upon the assumption that he remained living with Ms Williams. That assumption has proved to be ill-founded. Dr Bowers was of the opinion that Mr Orcher required 6 hours of domestic assistance "in perpetuity". Having regard to the opinion of Dr Bowers, and the effect of the unproven assumption upon Ms McKenzie's assessment, Mr Orcher contended that he had established a case for future care needs at the rate of 7.25 hours per week at the rate of $31.75 per hour for his life expectancy of 53 years or a multiplier of 988.9. This produces a sum of $227, 632. Bowcliff and Mr Keough 245These defendants conceded that there was little in issue between the parties with respect to Mr Orcher's injuries but indicated that there was some considerable differences with respect to the consequences in terms of damages. 246Mr Orcher's pre-injury work history was described as "far from stellar". Mr Orcher conceded leaving his job at the Novotel because of low wages. He left another job at Asquith because he had to travel. He agreed with the proposition that most of the jobs he had before the assault were only for a few months. It was submitted that this suggested a certain lack of motivation on the part of Mr Orcher to pursue employment where it might involve him travelling or where he did not think he was receiving sufficient compensation for his efforts. What then would have been the pattern of his work if not for the assault? 247Bowcliff and Mr Keough submitted that given that Mr Orcher had been unemployed for a few months before this incident, there was no reason to think that his work habits would have been likely to change. He has played basketball since the assault and attended to domestic chores such as shopping. He confesses to attempting to do vacuuming without success. The reason that he might not be able to do the handyman work, which was adverted to in one of the medical reports, was because he suffers from dizziness. That was also the reason why his job as a forklift driver had ceased. It was contended that Mr Orcher appeared to be free of dizzy spells if he continued with medication, which so far appeared to be dealing with that particular problem. If Mr Orcher's dizziness is controlled, there is work he can do. His capacity for work should therefore be assessed upon the basis that with medication he is without any relevant restriction. It was submitted that that included work as a forklift driver, which was the type of work he had always done. The calculation of economic loss was therefore said to be self evidently dependent upon whether I could accept the broad proposition that from a point at least six months before giving evidence, Mr Orcher was free of dizzy spells and should therefore have been seeking to obtain employment that was consistent with his cognitive difficulties, but which recognised it was at least probable that he would be able to drive a forklift. Mr Orcher's claim for $680 per week would therefore have ceased in approximately September 2010. 248Bowcliff and Mr Keough contended that the range of non-economic loss under the Civil Liability Act was somewhere between 50 and 55 percent of a most extreme case. 249In relation to domestic assistance, it was submitted that there was no continuing basis for it on the footing that Mr Orcher's dizziness can now be controlled. That effectively removed the underpinning basis for which domestic assistance was said to be necessary. That submission is necessarily contentious. 250Section 3B of the Civil Liability Act requires only a brief further mention. Bowcliff and Mr Keough contended that assessment of damages for a vicarious liability was to be dealt with under this provision. As will by now be apparent, that question does not arise for consideration. QBE 251QBE adopted the submissions of Bowcliff and Mr Keough on damages.

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Consideration - damages 252Mr Orcher's damages fall to be assessed under the provisions of the Civil Liability Act. I have therefore not earlier referred to any of the parties' submissions on damages proffered on the alternative calculations and heads of damage available at common law. Non-economic loss 253Mr Orcher was very seriously injured. He suffers from continuing physical and cognitive deficits of a most disabling and distressing nature. These are permanent. Mr Orcher is 33 years of age. His social, domestic, sporting and recreational activities have been fundamentally interfered with and significantly curtailed. His cognitive impairments intersect on a daily basis with his efforts to lead a normal life. He is prone to dizzy spells and he is vulnerable to epileptic incidents for which lifelong medication will be required. The prospect of safety from these episodes when adequately and properly medicated is itself vulnerable to the effects of his memory problems and the ever-present prospect that he will fail to maintain his medication regime. He is a young father, and the prospect of him being able successfully to care for his children or to contribute to their lives in a way that is mutually beneficial and enjoyable must be in grave doubt. 254I consider that in the circumstances of this case Mr Orcher is entitled to damages for non-economic loss calculated as 75 percent of a most extreme case. Medical expenses 255The medical expenses incurred to date are agreed. Equipment 256Even notwithstanding that Ms McKenzie referred to the prospect that Mr Orcher may have had a need for some equipment, referred to in appendix 3.2 of her report, Mr Orcher made no submissions about these matters. That was presumably upon the basis that the items in question, and the cost of providing them were arguably de minimus. I have not considered these matters further in those circumstances. Future medical expenses 257The sum of $21,300 claimed appears to me to be conservative. None of the defendants suggested that Mr Orcher was not entitled to damages in this sum under this heading. Economic loss - past and future 258In Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at [4] a majority of the members of the High Court said the following: "... in an action in negligence in this country an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings..." 259Mr Orcher has no qualifications, training or experience in any work other than as a forklift driver. He has worked either in that capacity alone or in combination with work as a storemen. Prior to sustaining his injuries Mr Orcher changed jobs regularly but generally had no difficulty obtaining work. He had no impairment to his capacity to obtain or to retain work for which he was qualified in competition on the open labour market. 260As a result of his disabilities, Mr Orcher has not worked with the exception of approximately one month in any capacity at all. Bowcliff and Mr Keough contend that this was not a true reflection of his capacity to work and that his failure to work since the assault is in effect unrelated to any injury or disabilities for which any defendant is, or could be, responsible. On the contrary, Mr Orcher submitted that he was, by reason of his post-assault condition, effectively unemployable. This was the result of the ongoing cognitive deficits and related epileptic vulnerability. It is to be observed that Mr Orcher obtained work following the assault without informing his prospective employer at the time of what his true condition and abilities were. In the events that occurred, the employer was unable or unwilling to accommodate the problems and Mr Orcher's employment ceased. 261Associate Professor Fearnside opined in his 20 January 2009 report that Mr Orcher would need to work in a fairly simple structured environment minimising stress and with flexibility. He said in his 26 August 2010 report that Mr Orcher would struggle to obtain employment in the open labour market. Dr Bowers said in his 9 April 2009 report that Mr Orcher may be able to "return" [sic] to sedentary or semi-sedentary work for two-thirds of his normal working hours, subject to adequate control of his epilepsy. Dr Westmore, in his 2 October 2008 report, thought that some future employment for Mr Orcher should not necessarily be excluded but that he would require a sympathetic employer. Ms Susan Pulman expressed the view in her June 2009 report, by reference to Mr Orcher's ongoing emotional difficulties and the impact it will have on interpersonal conflict and the associated likely challenges that would arise in the workplace, that Mr Orcher could not be employed in circumstances that put him under any pressure. 262Professor McLeod reported on Mr Orcher on 28 September 2010 in these terms: "Because of his epilepsy and impaired memory he will have difficulty in returning to paid employment. I am in agreement with Dr Fearnside's opinion concerning his difficulties in returning to work and the types of work which he could undertake if he were employed." 263The evidence from the experts is not all one way. Ms Christine Leaver, a physiotherapist and Professor Pryor, a vocational psychologist, in their August 2009 reports, suggest that Mr Orcher should "overall" be capable of returning to his usual pre-injury employment as a storeperson/forklift driver in an unrestricted capacity. That opinion, however, was conditional upon "appropriate control of [Mr Orcher's] epileptic fits or medical evidence confirming that they are no longer present or afford a threat to his or others['] safety". Upon the evidence before me it seems clear that those conditions are just not made out. 264I had what in this case I consider to be the very distinct advantage of observing Mr Orcher in the witness box. It was obviously not a pleasant or easy place for him to be. He gave evidence in a straightforward fashion and did not appear to exaggerate in any way that I could discern. His patience was obviously under considerable strain at all times, which was evident in not only what he said but in the way he said it. The following extract from Mr Orcher's evidence is instructive: "Q. See, what I suggest in fact happened was that you and she had a shouting match? A. Okay. Then you tell me what happened then, mate, if you know. HIS HONOUR: Mr Orcher, can we just slow down. Whether we like it or not, we all have a job to do. Mr Sheldon has his to do. You might not like it. We have to live with it. We will all get on famously if you listen to his question and give the best answer you can. Having said that, I know, having read medical reports, that you have suffered from serious injuries that have effects upon you and it is difficult, often, to remain calm. If you can, do the best you can. He means nothing personal. WITNESS: I'll try." 265Mr Orcher's minor outburst was an example of his impatience and disinhibition in the face of what was really very little pressure and in circumstances that would not ordinarily seem to be particularly frustrating or troublesome. The reaction was however consistent with the diagnoses of his condition and indicative of a person who would be very likely to run up against considerable difficulties in a stressful or pressurised workplace. 266I do not think that Mr Orcher will ever be able to return to work as a forklift driver or to any similar work. I also do not think that Mr Orcher would be able to retain a position in that capacity for very long, upon the assumption that he could get such a job in the first place. The latter assumption is also necessarily frail when regard is had to the fact that Mr Orcher cannot be expected to seek work without revealing his medical history, including the fact that he has epilepsy and including the further fact that his ability regularly and consistently to take medication that controls his epilepsy is itself a matter for serious concern. Although there is no direct evidence before me about it, Mr Orcher's ability to retain a current forklift driver's licence in the circumstances must itself be subject to considerable doubt. 267I would like to think that Mr Orcher might return to some form of work, even if only very limited, from time to time on a sporadic basis. I have no particular reason to be confident that he will, beyond what I have seen of Mr Orcher myself, and what the evidence has otherwise revealed about him. However, I am satisfied that whatever strengths or personal qualities Mr Orcher possesses, which may assist him in that regard, they will never be enough to overcome the continuing effects of his disabilities or to reduce the defendants' liability to compensate him for the resulting economic loss. 268In my view, Mr Orcher's past period of unemployment is directly and solely related to his injuries and continuing disabilities. Those same injuries and disabilities will in my opinion prevent him in the future from obtaining or retaining suitable remunerative employment. I consider that the economic losses claimed by Mr Orcher are an accurate reflection of his actual earning capacity. I reject entirely the submission of the defendants that Mr Orcher's only impediment to obtaining and retaining full-time employment as a forklift driver or its equivalent is a function of his less than stellar motivation or that his pre-injury work record conclusively or even reliably informs his current capacity to work so that, in the Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) sense, Mr Orcher's loss or diminution of his earning capacity has not, when considered in the light of his work history, been productive of financial loss. That submission is at odds with the true nature and extent of Mr Orcher's disabilities and is not a fair reflection of the impact they have had. Simply as a matter of common experience and understanding of the real world, I would be very surprised to learn that any employer would choose Mr Orcher over another forklift driver who did not suffer from epilepsy, did not have memory loss problems, was not prone to aggressive and disinhibited outbursts and whose organisational and temperamental facilities were in tact. 269I consider that Mr Orcher is entitled to damages as claimed for past economic loss in the sum of $148,920 and to the sum of $503,293 for future economic loss. Loss of employer superannuation contributions 270Mr Orcher's claim for lost superannuation contributions is not attended by any controversy beyond that enshrined in the defendants' contentions that Mr Orcher's economic losses are less that those claimed by him. The entitlement to superannuation losses calculated as a percentage of any economic loss to which Mr Orcher establishes an entitlement is not otherwise in issue. Domestic assistance and care - past and future 271Contrary to the submissions of Bowcliff and Mr Keough, Mr Orcher's dizziness is not the sole, or even the main, reason why he argues that he had a need for past care, or why he continues to argue that he has a need for ongoing care. That is because his physical symptoms such as dizziness and epilepsy are controllable with appropriate medication to a point where they do not interfere with the practical aspects of domestic life. Heavy tasks requiring assistance of one hour per week are an exception to that. On the contrary, it is the organisational aspects of Mr Orcher's domestic life that are at the heart of his needs. As already indicated, that includes the need to put in place a system that ensures timely and regular ingestion of necessary medication. In short, Mr Orcher is physically able to undertake most necessary tasks in living alone but requires assistance with heavier tasks and he requires supervision. 272Ms McKenzie provided a detailed assessment of Mr Orcher's domestic care requirements. She was not cross-examined. She reported, however, upon the now false assumption of a continuing relationship between Mr Orcher and Ms Williams. 273Isolating or identifying the extent of Mr Orcher's needs for assistance is not difficult. Allocating or assessing that need in terms of time is difficult. Indeed, as Mr Orcher's submissions on this topic implicitly recognise, it only takes seconds for Mr Orcher to take a tablet or to be reminded about the need to perform a beneficial task such as attending a doctor or following the doctor's instructions. Determining what this means in the context of a claim for attendant care unfortunately acquires an air of artificiality. 274I am comforted in this respect by the fact that Ms McKenzie felt able to formulate Mr Orcher's need for attendant care and to assess the time which was required to meet that need. I have no difficulty accepting Ms McKenzie's assessment for the past, qualified by the terms of the Act as already discussed. The sum calculated and claimed in this regard is $15,951. 275So far as concerns the future, it seems to me that Mr Orcher's need for attendant care services can be adequately accommodated by the provision of assistance for six hours per week. That corresponds to one hour per day on weekdays and one hour for the weekend. I intend by that assessment to give recognition to the fact that some of that need may be met in blocks of hours rather than strictly or rigidly as one hour per day during the week and one hour on the weekend. In other words, six hours per week in my view represents the aggregate of hours in or during which Mr Orcher's attendant care needs can be met, howsoever they may be spaced or combined during that week in order to meet that need. Calculated at the rate of $31.75 for six hours at the applicable multiplier of 988.9 produces a sum of $188,385. Summary of damages calculations 276Upon the basis of my reasoning, Mr Orcher is entitled to the following sums for damages under the following heads:

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Orders 278I make the following orders:

Verdict for the plaintiff for $1,362,591.
Order the defendants to pay the plaintiff's costs.
Declare that, having regard to the extent of the fourth cross-defendant's responsibility for the plaintiff's loss and damage, it is just and equitable as between the parties to the fourth cross-claim that the fourth cross-defendant contribute 30 percent of the damages and costs which the plaintiff has become entitled to recover from the cross-claimants.
Grant liberty to all parties to apply on short notice for such orders or directions as may appear to be necessary with respect to any arithmetical aspects of my calculation of damages.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2012

Q. So is it fair to say that things got fairly heated between you and Mr Paseka? A. I didn't pay attention to him. He just kept yelling at me." 20Mr Orcher denied that at any stage before he finally left someone apparently employed by the hotel had approached him telling him to calm down or he would be asked to leave. He agreed that he had been a regular at the hotel for a couple of years or so before the assault but did not recall having seen Mr Paseka there during his visits to the hotel during that time. It is otherwise conceded by Mr Orcher that he has no reliable recollection of events between leaving the hotel and waking up in hospital. Cecily Williams 21Cecily Williams made a statement dated 27 August 2010 that was tendered without objection. It attached two earlier statements dated 25 November 2007 and 5 December 2007 given by Ms Williams to police investigating the assault on Mr Orcher. In the first of those statements Ms Williams said that she arrived at the Bridge Hotel alone at about 1.45am on 25 November 2007. She drank there with friends until approximately 4.30am. Mr Orcher walked into the hotel at this time and approached her. He asked her to "come out the front". She gathered that he had expected her home somewhat earlier. The following three paragraphs of Ms Williams' statement should be noted as follows: "16. I started to walk to the front of the hotel and [Mr Orcher] opened the door for me. I led the way and walked out the front door. I saw people outside the front entry door and I saw the bouncer. He was an older Islander guy and a bit chubby. I don't know the guy personally but I see him all the time at the hotel. I also saw the Islander guy who hit Tyrone previously. When I walked out [Mr Orcher] followed. I walked across the road to where [the] Caltex Service Station was. [Mr Orcher] asked me for money and I did not have any with me at the time. I told him that I would withdraw money from the Caltex Service Station. I went into the Caltex and withdrew money out. [Mr Orcher] waited and stood on the corner of Victoria Road and Wellington Road. 17. After taking money out I walked back to where [Mr Orcher] was standing. I saw [Mr Orcher] laying on the ground and unconscious. He was laying flat on his back and his arms rested beside him. His eyes were shut and there was blood coming slightly from his eyes, which was around his tear duct area. His left ear was bleeding. There was blood on the back of his head. There were patches of blood around his head area from where he had fallen. He was lying partly on the footpath. His feet were on the roadway. 18. When I saw [Mr Orcher] lying on the ground I saw the guy who originally hit Tyrone standing on the corner of Bridge Hotel. He was standing next to an Islander guy." 22Ms Williams became unable to complete that statement but continued the narrative in her later statement. She said that when she went to withdraw her money, she left Mr Orcher standing alone on the corner of Victoria Road and Wellington Street, less than one metre from the brick fence that runs along the side of the service station. When she walked out of the service station she could not see him. She said he was not standing where she had left him. She said, "I was halfway between the service station doors and the footpath on Victoria Road when I heard something." According to Ms Williams, it was a male voice yelling "woman basher". 23Ms Williams said that she walked then at a fast pace to where she had left Mr Orcher. She saw him facing towards the Bridge Hotel on Wellington Street. She said he was "about two metres onto the roadway from the footpath with his back towards me". His arms were by his side. Her statement then continued in these terms: "I saw a male of Islander appearance who I know as Damien standing immediately in front of [Mr Orcher]. He was wearing a chequered blue and white shirt and blue jeans. At this moment I saw Damien strike [Mr Orcher] with his right hand, which was clenched in a fist, to the left hand side of [Mr Orcher's] face. I saw [Mr Orcher] fall backwards and hit the road with great force. He fell straight back, his body was straight when he fell." 24Ms Williams said that she then yelled out, "What the fuck have you done? This is my baby's father." She said that "Damien" yelled back in an aggressive tone, "He's a woman basher." (Mr Paseka's full name is Tamiano Paseka. I was not specifically addressed upon the point, but it would appear to be uncontroversial that Ms Williams' references to the man called "Damien" were references to Mr Paseka). 25In her original statement to the police Ms Williams gave evidence of an incident at the Bridge Hotel about one week earlier. She described how an Islander male assaulted a man she knew as Tyrone O'Reilly. It appears to be her evidence that this Islander male was Mr Paseka. She also told Senior Constable Couldrey at the scene that "it's happened again". 26Ms Williams agreed in cross-examination that she had previously seen Mr Paseka at the hotel before the night on which Mr Orcher was punched. She also agreed that she had seen him picking up glasses at the hotel. She denied that she had been asked to keep her voice down when she was attempting to withdraw cash from the ATM in the hotel. She also denied that at that time she had been arguing with Mr Orcher or that any staff of the hotel had asked her to leave. She said that when she originally told the police that she did not know who had punched Mr Orcher, it was because she "was in a bad state of mind". 27Ms Williams was cross-examined about what appeared to be differences between what she had said in her various statements. She explained the differences in the following questions and answers: "Q. By the time you got back, Mr Orcher was on the ground, wasn't he? A. No. I said that in my first statement, sir, because I was questioning what I had said. Because it was surreal, you know. Like he nearly dies off one punch. I was questioning myself and to you know, did I see him really with what I saw? Q. Well, you were still distressed when you made your second statement, weren't you? A. Yeah, but I was clearer, like I'd said, because I was so emotional at that time. I had no choice but to deal with it. I was trying to raise my 18-month-old daughter. So I had, by that time, no choice but to slowly get through it, do you know what I mean?" 28Ms Williams confirmed her description of the assault on Mr Orcher in the following evidence: "Q. So when you got to the top of that shortcut, Mr Orcher was clearly visible to you; is that right? A. Correct. Q. Was there anybody else near him? A. When I come up, Paseka was yelling something across the road at him, towards him, because John was looking at him. Q. Was did Mr Orcher say, if anything? A. No, I remember him looking in that direction. I didn't hear any I know John's tone of voice if it was him calling out. But I'd rushed because someone was calling towards, and I could see him looking. Q. Could you hear what was being said? A. Yes. Q. Was Mr Paseka yelling things like "dog"? A. No. Q. And he was yelling things that were personally insulting to Mr Orcher; is that right? A. Correct. Q. So you got to the top of the shortcut? A. Yeah. Q. And then I take it that Mr Paseka at some point crossed the road? A. It happened so quick. John stepped out on the road and he come straight across the road and he sort of and before even like a proper aggression, tone or argument could happen, whack. Q. Very quick? A. Very quick. He hit him when he hit him, it was his right hand. He hit him, it was John's left here, because when he hit him, it split him here when I got to him (indicates). It happened that quick. Tamiano had hit him my mind just I sort of I seen the connect, bang, done. I heard the thump and I just ran up to Tamiano and I started hitting him. Q. But from the time of you getting to the top of this shortcut that you had taken... A. Yes. Q. ...until the punch that hit Mr Orcher, it was a matter of seconds; would you agree with that? A. Within a minute, yeah. It's sort of within yeah. So I got up there something, I heard "Woman basher" was called out, and he stepped on the road and then he come across and it just happen.

Q. What you do remember was you got to the top and heard "woman basher" called out? A. Yeah, looked across the road. Q. You saw Mr Paseka? A. Yes. He come diagonal straight across the road. There was no going to the lights to cross the road or anything, just come Q. Straight across? A. Yeah. Q. I'm not suggesting that you would or you should, but you couldn't have done anything to stop it in the time available, could you? A. No, I couldn't." 29Ms Williams also said that shortly before he crossed the road, Mr Paseka had been standing effectively shoulder-to-shoulder with Mr Paea, a security guard employed by DSSS Cousins. Mr Orcher relies upon that evidence in order to inculpate QBE upon the basis of DSSS Cousins' responsibility for the alleged failures of Mr Paea. It was as follows: "Q. You told Mr Sexton when he asked you some questions at the end last time, do you remember that, that there was a security guard outside the hotel near the front door? A. Correct. Q. Was Mr Paseka when you first saw him, was he standing near that security guard? A. Yeah. Q. How close? A. Real close. The security guard was standing say we're looking at the front door on Wellington Street. Q. Yes? A. Paseka was standing at the stairs of the front entrance. The bouncer was standing right there, like a bouncer does at front doors. Q. So we can get the idea about this, are you saying that at the time you came out of the Caltex service station Mr Paseka and the security guard were standing more or less side by side? A. Not far from each other. Q. Can you tell me what not far from each other means? A. I don't know if it was side by side as in shoulder and shoulder. They walked out and they are within distance, like within a metre of each other, anyways. Q. Quite close to each other? A. Yeah. Q. One could have reached out and touched the other? A. On the shoulder." 30Ms Williams said that this was something that she was able to see as she was coming up from the concrete driveway of the service station, just before the garden. She denied that her evidence about this was untrue, but she conceded that it was not something that she had told the police when they spoke to her. Senior Constable Amy Couldrey 31Senior Constable Amy Couldrey gave evidence. She attended the scene of the assault after it had taken place. In such circumstances, through no fault of hers, none of her evidence was particularly helpful or relevant to the issues to be decided in this case by me. Exhibits "M" and "N" 32Exhibits "M" and "N" became central to Mr Orcher's case. It is necessary to refer to each of them in some detail. The first is a document headed "Bridge Hotel Security" that commences with the opening direction, "while controlling the entrance at the front door the following instructions will be adhered to". The instructions that are then listed include a number that are potentially presently relevant: Maintain vigilance Prevent all alcohol, and glass from leaving the premises Alert management in the case of all incidents If a patron is aggressive towards you or is focused on you, it is best to go inside and let another guard or management deal with him as the focus of his aggression - you - is now taken out of the equation Also, do not get into arguments with patrons no matter that they may be unreasonable. Do not get into a fight nor strike anyone. We are here to dissolve arguments and not to participate. Aggression by security will not be tolerated and you will not be working here Under no circumstances are you permitted to consume any alcohol while working Under our licence we have an undertaking to ensure patrons depart the hotel and neighbourhood in a quiet and orderly manner and to ensure that they do not disturb the neighbourhood. To this end on busy nights we need to patrol outside and in the vicinity of the premises to ensure this. If you cannot leave your station at the time of an incident, then notify other staff or management. 33The second is a Liquor Administration Board of New South Wales Licence History Sheet relating to the Bridge Hotel. Among other things, this document contains a list of what are described as "special conditions" attaching to the licence for the Bridge Hotel (but which Mr Keough insisted were no more than "undertakings" that had been given to the Board). Some of those conditions or undertakings are as follows: "4) That the licensee shall take all reasonable steps to ensure: - a) that the patrons depart the hotel and the neighbourhood in a quiet and orderly manner; and b) that patrons do not congregate on the footpaths of the street surrounding the hotel, to the disturbance of the neighbourhood. 5) That the licensee shall keep the hotel surrounds free of glass and clear all debris left by patrons. 6) That no glasses or other drinking vessels shall be removed from the premises by patrons. 7) That security personnel shall be employed at the hotel on the following nights outlined below: - Wednesday, Thursday, Friday, Saturday and Sunday nights - at least one door person. On any evening when it is anticipated that large numbers will attend the premises, three door persons shall be in attendance. On each of those nights, the door persons shall be employed from a time commencing no later than 9.00pm until closing time and/or until all patrons have departed the premises and the neighbourhood in a quiet and orderly manner. On the occasions that more than one door person is employed, those door persons shall patrol outside the premises and in the vicinity of the premises to ensure that the abovementioned undertakings are complied with." Tamiano Paseka 34Following the incident, police interviewed Mr Paseka. This took place on 18 February 2008. Selected portions of that recorded interview became exhibit "Q" in these proceedings following a contested interlocutory application: see Orcher v Bowcliff Pty Ltd (No 3) [2011] NSWSC 172. The limitations that I referred to in that judgment upon the use to which Mr Paseka's recorded answers can be put in this case should be noted. Other selected portions of the interview became exhibit "AC". Neither exhibit became evidence in these proceedings against QBE. 35Mr Paseka told police that he arrived at the Bridge Hotel somewhere between 11.00pm and midnight. He said he "just started working". He then said, "[a]nd then it was getting too, oh, a bit quiet so having a few drinks, um, and I think I bit, I think I had a bit too much". He went on to say the following: "Yeah. I went to the manager, I told him I'm not working... So I stayed and I started drinking and I went outside for a smoke, yeah, I went outside for a smoke, just chilling with the bouncers there...And then that's when I saw, well, I saw that guy and the Abo guy talking to oh, arguing over some girl...And they were pretty loud. I walked over...and then...they started talking about, 'Oh, he's trying to hit on him', or, 'he's trying to hit on her'..." 36Mr Paseka said that Mr Orcher spoke these words. A little later in the conversation Mr Orcher is reported to have said, "Mate, do you want a go, I'll take all of yous on now." Mr Paseka said that Mr Orcher then "started jumping around". He had his hands up and it looked "like he was going to throw a hook or something". Mr Paseka then said this: "I was just standing there. I walked back, I took a step back, walked forward and then he said something to me and as soon as he said something I just hit him." 37Mr Paseka also told the police that at the time he had been drinking. When asked how many drinks he had had Mr Paseka responded, "six, seven...I wouldn't have a clue... [p]robably eight or nine...I just kept going for a smoke break outside." He then gave the following answers as part of the police interview: "Q213 Ah hmm. A ...told him I'm a bit wasted, I'm not going to work. And he goes, 'Yeah, no worries, it's all good, you just go, hang around - Q214 Ah hmm. A ...make sure you don't do anything.' And then, yeah, he just told me to go chill. So I started drinking when he told me to go chill...

Q236And, and could you, what were they saying? A Oh, they were just arguing, "Why are you, why are you trying to hit on my missus." And then he turned around and goes, "I'm not trying to hit on your missus, I know that girl." Something, blah blah blah, I just heard it, and then that's when he started going, "Oh, mate, calm down, calm down. And then that's when he started getting, jumping up with his hands open. Q237 Ah hmm. A And then that's when he started to say something and I just turned around and just hooked him. Q238So when you, when you saw them talking on the corner - A Ah hmm. Q238... at what point did you go over? A When they started kind of talking a bit loud." Exhibit "R" 38Mr Paseka's state of sobriety has arisen as an issue in these proceedings and intersects with the question of whether or not he was, or could have been, working for the hotel at the time he assaulted Mr Orcher. Exhibit "R" was a copy of the Bridge Hotel House Policies. No part of that document contained material that is particularly relevant to the current dispute, with the exception of the section headed "Alcohol". It is as follows: "Under no circumstances are staff to be under the influence of alcohol whilst working. This means that you cannot drink whilst you are at work. It also means that you cannot arrive for work having been drinking. It also means that you cannot accept a drink whilst working from a customer. If you turn up for your shift under the influence of alcohol or you appear to be so during your shift then your shift will be stopped immediately. If you think that you are ok to work that is irrelevant to us. Our policy is that you not be under the influence of alcohol - end of story. As a staff member you are making decisions on other people and various situations and you are expected to be on your game. At the end of your shift you are provided with one drink if you wish. All staff, just like everyone else, will be subject to RSA and there are no exceptions. Do not be pressured by another staff member to give them one more drink if you believe you would be breaching Responsible Service of Alcohol guidelines. We will send this person home. Do not pressure any staff member to give you a drink if they have decided you have had enough. RSA is for all. We appreciate that as we are the late licence of the area and that with 23 pubs up the road and scores of restaurants, many hospitality staff come here after work. But be very clear, you will be treated as any other member of the public in regard to RSA - again no exceptions." Exhibit "S" 39Exhibit "S" was a document headed "Regulations and Guidelines". It contains rules governing the conduct of staff employed at the Bridge Hotel. None appears to me to inform in any way the resolution of the current dispute. Tyrone William O'Reilly 40Mr O'Reilly said that he started drinking at the Bridge Hotel in about 2006. He was there on 17 November 2007. He was "pretty intoxicated". He became involved in a scuffle inside the hotel. Tables were knocked over and drinks went flying. He was then escorted from the hotel by two security guards. They told him it was time to leave. He then gave this evidence: "Q. As you were leaving, did something happen? A. Yeah. Me and another patron had a sort of a scuffle inside the pub, you know, tables were knocked over, drinks went flying. Q. Did anyone speak to you? A. Yeah. I was escorted by two security guards out of the pub. They said, 'It's time for you to leave'. Q. Did you leave? A. Yeah. Q. Once you got outside did something happen? A. Yeah. Well, I got outside on the footpath and someone started yelling from behind. I've turned around and told them to fuck off, and then I've turned away to walk away and, yeah, I was knocked out cold. Q. How far away from the door were you when this happened? A. Couple of metres. Q. On the footpath in front of the door? A. Yeah. Q. Where were the security guards that had spoken to you and asked you to leave? A. They were there, they were on the step inside the pub like." 41Mr O'Reilly was unable to identify his assailant. The assault occurred just outside the Wellington Street entrance to the hotel. He agreed that his memory for events in 2006 and 2007 was not good. Mr Keough 42Mr Keough made a statement that became evidence in the proceedings. He was cross-examined at some length. He is a director of Bowcliff and the licensee of the Bridge Hotel. He has worked in the hotel industry for nearly 30 years. He has been the licensee of the Bridge Hotel since 1986. He came to know both Mr Orcher and Mr Paseka in that capacity. Mr Orcher had been a patron of the hotel for approximately two years when the assault occurred. Mr Keough was upstairs at the hotel asleep at the time. 43Mr Keough said that Mr Paseka commenced employment at the hotel in approximately August 2007 as a casual glass collector. His role was essentially to ensure that the areas of the hotel frequented by patrons were kept clean and tidy. He did not serve drinks or provide security. He was not qualified to work as a security guard and Mr Keough said that he never performed that work. Mr Keough said that Mr Paseka was not known to him ever to have been violent or to have been involved in any previous altercations with any person. Mr Keough said that he had never received any previous complaints about Mr Paseka either as a glass collector or as a patron. In particular, Mr Keough denied that he witnessed Mr Paseka assault Tyrone O'Reilly at the hotel on 17 November 2007. Mr O'Reilly had been barred from the hotel at the time of Mr Orcher's assault and for some time prior to it. 44Mr Keough said that Mr Paseka started work at approximately "12.00am", which I take to mean midnight on 24 November 2007. Ben Davies was the hotel duty manager at the time. Mr Keough saw Mr Paseka as a paying customer sitting at a table drinking with friends between 3.00am and 4.00am the following morning. He said that he appeared to be in good spirits and was well-behaved. He did not appear to be intoxicated. He said that he did not see or hear anything that would have warranted his removal from the hotel. 45Mr Keough said that after Mr Paseka stopped work and started drinking with friends, he would not be permitted by Mr Keough to have any role in the running of the hotel. He would not be permitted to pick up glasses or ashtrays in those circumstances. 46Part of the CCTV footage of activities outside the hotel at the door that opens out onto Wellington Street on the morning of the assault shows Mr Paseka taking a bottle from a patron. This occurred at approximately 4.47:44am. Mr Keough said that such an activity was not part of Mr Paseka's job at the hotel. He was in any event not permitted to work if he had had anything to drink. 47Mr Keough next saw Mr Paseka at about midday that day. He appeared to be intoxicated. Mr Keough said that he had never had a complaint made to him about Mr Paseka's conduct until the assault upon Mr Orcher. 48Mr Keough was cross-examined on behalf of QBE about the security arrangements and rosters. He said this: "That I would talk with the security company and say that we want, you know, this many guards and it's going to be busy, there's a big band in here tonight, we expect a better presence there, someone near the stage at times, or we have got a big function coming afterwards and they will probably go into the back bar so we will need a presence there. They would also have to use their head to see where the majority of the people were, and it wasn't a hard and fast system, it was something that they would really have to take on themselves, but obviously if I walked into a bar and I saw it was packed there and I would see there was no security, I would say, "Look, we need someone in here." Sometimes I needed more than three, sometimes we had 10 security, it really depended on the night. They are rare occasions." 49Mr Keough said that he expected the trained security guards to operate together as a team. He said that he expected them working together to contact each other to deal with issues that might arise. He gave the following evidence: "Q. Mr Keough, so far as the system in place on this occasion is concerned, would you agree that you might want to go across the street and find out if there was anything about which the police should be called? A. Sure, yes. Q. And if there were a number of people across the road involved in something which had caused concern to a security guard, you would agree that the hotel's system would allow and provide for two guards going over to have a look? A. Depending on the situation, yeah. Q. That might be a situation where you might depend upon the judgment of the guards who have had the training and the licences; would that be correct? A. Yes. Q. But it would certainly be within your expectation as the licensee of the hotel that they might think it appropriate for them both to go over, would you agree? A. Sure. We're assuming, of course, that they were patrons of the hotel. Q. Yes, we are assuming that. A. Yeah." 50A little later Mr Keough agreed with the cross-examiner as follows: "Q. Let's assume that what the security guards have detected across the road is a group of a few patrons who have left the hotel gathering across the road and without knowing precisely what has occurred the security guard detects that some kind of incident has happened or is developing. Now, adding that to the various assumptions I have asked you to make, you agree with me that what we see on the video I played to you of the actions of the three security guards is consistent with the implementation of the security system that the hotel had in place on that night? A. Yes, but it's also part of their training and their operations manager would have instructed them. It's not just the hotel thing; it's part of their operating procedure for any security guard." 51Mr Keough was cross-examined at some length by Mr Sexton of senior counsel for Mr Orcher. Mr Keough agreed "absolutely" that it was very important that staff members at the Bridge Hotel did not get into confrontations with patrons. He also agreed that it was important for a competent hotelier not to have inebriated staff members interacting with patrons and that the safety of hotel patrons was paramount. 52Mr Keough was asked about whether Mr Paseka had been drinking: "Q. If you go to paragraph 32 of your statement you say there that from approximately 3.00am, and that's the time when you say Mr Paseka stopped work; is that right? A. Yes. Q. Until you left the hotel at 4.00 you saw him sitting in the hotel at a table; is that right? A. Yes. Q. He remained as a paying customer; right? A. Yes. Q. He did not appear to be intoxicated? A. No. Q. You say in this statement, at least now by implication, that he finished work at 3.00am; is that right? A. I think that's what the meaning is. Q. You don't say in this statement why he finished work, do you? A. No, I don't think so. Q. The reason he finished work at 3.00am was because Mr Davies insisted that he stop work. That's right, isn't it? A. Yes. Q. He insisted that Mr Paseka stop work, according to Mr Davies because Mr Paseka told him he had been drinking? A. Yes. Q. You don't say anything about that in this statement? A. Well, not in that paragraph. I assume I don't. Q. Mr Paseka told Mr Davies and Mr Davies told you that Mr Paseka said he was so inebriated he wasn't capable of continuing to work, didn't he? A. He said he had been drinking, had a couple of drinks, is my understanding. Q. When did you discuss this with Mr Davies? A. He told me not long after. Q. I'm sorry? A. I think he told me around about that time. Q. When you say around about that time, you mean around about 3.00am on the 27th? A. Yes, approximately. I can't recall exactly when he told me. Q. At 3.00am on the 27th you knew that Mr Paseka had been drinking while working; is that right? A. Approximately, not at 3.00am. Q. Before 4.00am, anyway? A. Yes, yes. Q. And knowing that he had been drinking while working, you permitted him to remain at the hotel? A. Yes. Q. Did you make any inquiry about how much he had had to drink? A. Yes, I spoke to Ben Davies about that. Q. And what did Mr Davies tell you? A. That Paseka had told him that he had one drink one drink or a couple of drinks. I said, "What is he like?" He said, 'He seems fine, but I put him off straight away because he was drinking'." 53Mr Lokotui was a security guard on duty outside the hotel door in Wellington Street when the assault occurred. He was one of two such people employed directly by Bowcliff and not by DSSS Cousins with whom Bowliff had a contract for the supply of security personnel for the hotel. Mr Keough agreed that Mr Lokotui's duties included intervening in physical altercations between patrons of the hotel inside the hotel. He was then questioned on the issue of responsibility for altercations outside the hotel in the following terms: "Q. Do you agree that Mr Lokotui's duties included intervening in physical altercations between patrons of the hotel in the vicinity of the hotel? A. I imagine it would then determine what the vicinity is and what the altercation is. If there's one punch and you're inside it's pretty hard to intervene. Q. I am not asking you about the specific circumstances of this case, I am asking you about Mr Lokotui's duties generally. Do you understand? A. Well, the duties generally are we don't want anyone we want patrons safe and he is there to make sure that patrons are safe, and if there's something happening down the road that is of a violent nature I would assume that the first thing you would do would be to ring the police. Q. On the assumption that the obligations of Bowcliff Pty Limited as the company conducting a licensed premises business, do you understand what I am putting to you? A. Yes. Q. And on the assumption that you as the licensee have obligations within the vicinity of the hotel premises, do you understand what I am putting to you? A. We have obligations. We don't have authority. Q. I am just asking you to assume that as a matter of law you have obligations which go beyond the Real Property Act boundary of the hotel. Do you understand what I am putting to you? A. I will assume that. Are we putting a definition on how far? Q. I am asking you to assume some point beyond the Real Property Act boundary. Do you understand? A. Yes. Q. Would it be part of Mr Lokotui's duties to intervene in a physical altercation within that area? A. We would always try and stop anyone getting injured if possible, but again these things depend on circumstances. If there's 30 people having a brawl out there...". 54A further series of questions were directed to Mr Keough on the extent of Mr Lokotui's knowledge or understanding of the duties that Mr Paseka was employed to perform when working for the hotel. He ultimately gave these answers: "Q. Do you now say that Mr Lokotui didn't know that it was not part of Mr Paseka's job to take bottles from people outside the hotel? A. I would assume he knew. I didn't inform him. It was obvious that wasn't his job and it would be obvious to bar staff there, to Mr Lokotui, to me. Q. And matters of position A. I wouldn't have briefed Mr Lokotui on what Mr Paseka couldn't do. Q. And that was the position before 24 November 2007, wasn't it? A. Yes, yes." 55Mr Keough agreed that he knew before Mr Orcher was assaulted that Mr Davies, the bar manager, had insisted that Mr Paseka stop work. 56Mr Keough was asked whether or not in 2007 it was sometimes the practice of security staff retained by the hotel to cross Wellington Street to deal with incidents occurring there. He responded as follows: "If there was unruly behaviour and people were loud and things like that you might go over and calm them down, yes. You might not have to go over there. You may go halfway, you may go over there and say, "Calm down, fellows, it's too loud." If you are talking about an altercation, it would depend on whether how long after, where was it located, did they go somewhere else. If anyone's safety was in jeopardy I would always go over, but I don't know that security always would." 57Much of the CCTV evidence was replayed to Mr Keough during his cross-examination and his comments were sought on much of it. Part of what he was shown included footage of the Wellington Street entrance to the hotel. It showed Mr Paseka taking a bottle from a man identified only as Izzy, and placing it in a bin in the presence of Mr Lokotui. It also revealed a sequence some minutes later, shortly before 4.47:41am, when Mr Orcher and Ms Williams are seen to leave the hotel through the Wellington Street door and to walk out of the camera's view, apparently crossing Wellington Street and travelling in the direction of the service station. Mr Lokotui is also apparently shown watching Mr Orcher as he does so. It is very soon after this that Mr Orcher was attacked. (Later sequences show Mr Paseka returning to the hotel from the other side of Wellington Street at 4.51:28 am, after he has assaulted Mr Orcher). 58 In the light of these matters, Mr Keough was asked the following questions: "Q. What we have seen is Mr Lokotui standing there watching Mr Orcher cross the street? A. Yes. Q. He has then stood there and watched Mr Paseka either take or receive a bottle from Izzy? A. I don't know if he was in front there or behind. If you replayed it I could confirm that for you. Q. We will just replay it. A. He's looking away at the moment, but I think just before that he saw it. He doesn't watch as he goes across the street, no. Q. Looking at that sequence of events, Mr Keough, it appears, does it not, that Mr Paseka is carrying out what you say are his usual duties as a glass and bottle collector? A. No, not at all." 59Mr Keough was also asked about the extent of the area of responsibility of the hotel security staff: "Q. What the manager and the hotel security staff were doing were complying with the undertakings in the licence about not permitting bottles and glasses and other containers to be taken off the hotel premises; is that right? A. I am assuming they were. Q. And they were doing so across the street; is that right? A. It appears that way." 60This issue of Mr Paseka's employment status at the time was then explored in the questions that followed. They should be noted: "Q. Why not? A. Well, a glassy is there inside the bar making sure that the bar staff have clean glasses, ice, that sort of thing, everything there at their hand. That's the whole reason, clear the tables, bring stuff in, have it washed, give it back to the staff in the racks so that when they have to serve everything is at their fingertips. It's not to do things outside the hotel, it's not to take bottles off people out there, that's not his job at all, and he is not working. In my observation there Mr Lokotui is telling him to put the bottle down, from what I can see, my observations, and quite often this happens where someone walks out and you sort of say, "Look, you can't do that." They bought the bottle, they think, well, this is mine, they skol it quickly, throw it down or a friend goes up and goes, "Mate, give us the bottle. You're not going to get back in if you do that, put it down." A friend does that quite often. That doesn't mean they're working at all. You may have a group of five people, you know, one of them goes outside with a drink, they don't want them to be excluded from the premises, so they just say, "Mate, put the bottle down." He was a friend, he wasn't a stranger, he was a person they had been socialising with throughout that night. If he went up to a stranger and grabbed a bottle from behind like that there could have been an altercation. Q. It looks, does it not, Mr Keough, as if Mr Paseka was doing something which complied with the undertaking in the hotelier's licence that no glasses or other open drinking vessels shall be removed from the premises by patrons. That's what it looks like, doesn't it? A. No, it doesn't look like that. It looks like he's taking a bottle off a friend when he has seen one of the staff say you can't take it out. That's what it looks like to me, helping a friend out. He's certainly not doing...the order of the neighbourhood is not being disturbed. Q. If he is working inside when he picks up a glass that has been used by Mr Izzy, is that different to if he picks up a glass that has been used by somebody he doesn't know? A. Well, he's not picking up a glass. No, there is a big difference. There would be no difference in a glass but grabbing a bottle off someone he doesn't know, he might end up with a confrontation. People don't do that. You go up to a friend and you grab the bottle. A friend is a friend; you're not going to muck up like some people would." 61Mr Keough agreed that the attack upon Mr Orcher that had occurred on the other side of Wellington Street could, all things being equal, be seen by a person standing some 15 metres away on the steps of the hotel entrance or thereabouts on the opposite side of the road. He was not, however, prepared to agree with the suggestion that if the security guard, depicted in the CCTV footage as on duty at the time, saw this and did not speak to Mr Paseka when he returned, it was "consistent with the security guard thinking that Mr Paseka had been doing his job". He maintained this view even though Mr Paseka, who on Mr Keough's account was by this time a paying customer or patron and not an employee, was not prevented from re-entering the hotel having just violently assaulted Mr Orcher only moments before. 62The cross-examiner returned to the question of whether Mr Paseka was working at this time. The following questions and answers should be noted: "Q. This is a critical issue in this litigation, isn't it, Mr Keough, whether Mr Paseka was working or not? A. Well, I don't really know what whether it's critical to your case or not, but he wasn't working. Q. This conversation you've just referred to where Mr Paseka himself told you he wasn't working, where is that in your statement? A. I don't know. Q. You don't know? It is not there, is it? A. I don't think so, I don't Q. Have a look. A. I can't see it right now. Q. I put it to you squarely, Mr Keough, the evidence you have just given about Mr Paseka himself telling you he was not working, is something you have made up sitting in the witness box this morning? A. No, I haven't. Q. I put it to you squarely that it is false evidence? A. It is not false evidence. Q. It is deliberately false evidence, which you have given in support of your defence of these proceedings? A. No, it's not. Q. Why is it not in your statement, Mr Keough? A. Well I don't know. There are probably quite a few things that aren't in my statement. Q. Mr Keough, you have appreciated from the commencement of these proceedings that it is a critical issue in these proceedings whether Mr Paseka was working or not working; you perceived that, haven't you? A. Yes. Q. And you would know that it is a very important piece of evidence in that regard if Mr Paseka personally had told you he had stopped working, you know that, don't you? A. Well, at the time I made this statement, I don't know what the case is turned on. Q. I will give you another opportunity A. Let me be very clear Q. No, you let me ask a question, please. I will give you another opportunity to explain why that evidence you have given for the first time this morning, is not in your statement? A. I don't know why. But let me be very clear, I knew he was not working. I observed him not working. I observed him socialising, as I said numerous times throughout this and I spoke to him. If I saw him socialising, sitting down, I would have said "What are you doing?" I was well aware he wasn't working. To suggest that he was, is just absolutely false." 63Mr Keough was further cross-examined on matters not presently calling for comment. Benjamin Luke Davies 64Mr Davies made a statement dated 10 September 2010 that was tendered following a series of objections. He said that on the night of the incident Mr Paseka was working collecting empty glasses and other related duties. He could not recall the exact time that Mr Paseka started. Mr Davies did not see Mr Paseka drinking while he was working. Mr Davies said that some time towards 2.00am, Mr Paseka had a conversation with him to the following effect. Mr Paseka said, "Hey Ben, can I leave early? My girlfriend and some mates are here and they've bought me a drink and I've just had it." Mr Davies replied, "Well, because we're quiet and you've had a drink you can knock off now." 65Mr Davies said that he saw Mr Paseka several times after that, talking happily to his friends and to Ms Williams. He was later also seen to be playing pool. 66Mr Davies said that he also saw Mr Orcher arrive at the hotel at about 3.30am. He did not appear to be intoxicated. The next time he saw him he was standing beside the ATM in the hotel with Ms Williams. They were yelling at each other. He therefore asked security staff to remove them. He then saw Mr Lokotui ask them both to leave, and they did so "of their own accord". He said that he next saw Mr Orcher and Ms Williams cross the street outside the hotel and walk towards the service station. Mr Davies said that a moment later his attention was drawn to a commotion in the vicinity of where he had last seen Mr Orcher and Ms Williams. He said that he started walking to the other side of the road when he passed Mr Paseka walking back towards the hotel. Mr Paseka did not say anything to Mr Davies. He saw Mr Orcher lying on the ground with blood around his head. Mr Davies called the police and the ambulance from his mobile phone. 67To Mr Davies' observation, Mr Lokotui supervised the externally employed security guards "in a limited manner, because those guards did not work for us, they worked for a security company and they had their own boss". However, those guards reported to Mr Keough or in his absence to Mr Davies. He agreed that in the course of the performance of their ordinary work the external security guards would take supervision from Mr Lokotui when required. He also agreed that in the course of the performance of their usual work at the hotel they would look to Mr Lokotui for direction if required. 68Mr Davies was taken to the terms of a statement he made to the police on 27 November 2007. He accepted that it was more likely to be accurate than the statement he made two years later. In the earlier statement Mr Davies said that Mr Paseka "had finished work at 4.00am" and that "he was off duty". However, when pressed on the issue he said this: "Q. Would you now say, on oath, in court today, that if Mr Paseka finished work on the night of 25 November 2007, it was at 4am? A. No, in hindsight I would I don't believe he finished if the incident occurred at 4.50 something, I believe he finished work at least two hours before that. Q. At least two hours before that? A. Yes." 69After further cross-examination, Mr Davies gave this evidence: "Q. Now that I have drawn your attention to the last sentence of paragraph 11, you want to change your evidence about the accuracy of this statement, don't you, Mr Davies? A. To...I wish to admit that I do not have a correct bearing on the precise time that he knocked off." 70He was taken to a printout from the payroll computer software at the Bridge Hotel. He agreed that that it recorded that Mr Paseka finished work at 3.00am on 25 November 2007. Mr Davies denied that he wrote his statement "carefully in order to detract attention from the possibility that Mr Paseka was involved". He said the following: "I had no knowledge that Mr Paseka was involved other than the word of a woman on the floor who was screaming and there was another man on the floor...sorry, there was Izzy there. I do not believe in hearsay. I have worked in the industry for a long time and everyone lies to you." 71Mr Davies was also asked about any discussion that he might have had with Mr Keough on this subject. That evidence was in part as follows: "Q. And you discussed with Mr Keough the importance of establishing that Mr Paseka had finished work before this incident, didn't you? A. Not the way you put it, no. I informed him that he had finished work but we did not discuss the importance in a conjecture manner as to establishing a fact. I merely made a statement that he had. Q. Did he ask you, did he, what time Mr Paseka finished work? A. He was actually surprised when I told him he finished work. Q. He was surprised? A. That's how I recollect it. Q. Mr Keough didn't say anything to you to the effect of: Oh, Mr Paseka told me that himself earlier this morning? A. No." Heamasi Lokotui 72Mr Lokotui produced a statement dated 29 September 2010 that was tendered. He said that while he was employed by the hotel his principal duties were to check the identification of patrons seeking to enter the hotel, to check for signs of drunkenness, to monitor patrons' behaviour inside the hotel and to remove disorderly patrons. He worked under the supervision of Mr Keough or in his absence under the direction of the bar manager. Mr Davies was the bar manager on the night of the assault. 73Mr Lokotui recalled that Mr Paseka was employed as a glass collector on that night. There were two security guards from another company also working in addition to him. Mr Lokotui assisted at various locations in the hotel throughout the night, including the main entry. He said that he knew Ms Williams and Mr Orcher. 74He said that at about 4.40am he received a radio call saying that some patrons were arguing in the ATM area. When he arrived there he saw that it was Ms Williams and Mr Orcher. They were standing just outside the female toilets and they were arguing in a heated fashion. He approached them and said, "Look you two. I need to ask you to calm down or you're going to have to leave the hotel." They continued to argue so Mr Lokotui asked them to leave. They both complied. He followed them to the hotel foyer and watched them leave by the front door. 75About ten minutes later Mr Lokotui was paged by one of the other security contractors telling him that someone was hurt outside. He walked across the road to where a group of people were standing. He did not pass Mr Paseka. When he got there he saw Izzy yelling at Ms Williams. Mr Orcher was lying down and Mr Davies was attending to him. They were on the opposite side of Wellington Street from the hotel and about 15 to 20 metres away. He did not see Mr Paseka hit Mr Orcher. 76On the occasions during the evening when Mr Lokotui had seen Mr Paseka picking up glasses, he did not see him drinking. He did not appear to be drunk. He had previously seen Mr Paseka and Ms Williams engaged in friendly conversation before Mr Orcher had arrived. 77Mr Lokotui agreed in cross-examination that in the event that something happened on the footpath on the other side of Wellington Street that might be called an incident, which came to the attention of the security guard outside the main entrance, the system was that he should report it to the man in the foyer in the first instance. 78Mr Lokotui was inevitably taken to that portion of the CCTV footage that showed Mr Paseka taking a bottle from Izzy. He gave the following evidence on that topic: "Q. And although you have turned your back on Mr Paseka, you know that he's dealing with it, don't you? A. I didn't let him take responsible for that, sir. Q. You let him deal with it, didn't you? A. No, sir. Q. Mr Paea is watching and you're standing there still as Mr Paseka deals with it, isn't he? A. That's correct, sir. Q. Mr Paseka was doing his job of collecting glasses, wasn't he? A. No, sir. Q. What was he doing? A. Taking bottles off Izzy. Q. And that was part of his job, wasn't it? A. No, sir. Q. Why were you permitting him to do something, which was not part of his job? A. I did not allow him to take the bottle off Izzy. Q. Mr Lokotui, you saw him starting to take the bottle and then you turned away, didn't you? A. That's correct, yes. Q. You let him deal with it, didn't you? A. I didn't let him deal with it." 79Mr Lokotui agreed that following Mr Paseka's assault upon Mr Orcher, Mr Paseka came back across the road and entered the hotel. Mr Lokotui agreed that he told Mr Paseka what he should then do. That emerges from the following evidence: "Q. When you told Mr Paseka to go to that ATM and stay there, he was inside the hotel and not out in the street? A. That's correct, sir. Q. And you were telling him to go in there and stay there because you knew that you could be in trouble, weren't you? A. No, sir. Q. But you were telling him to do that? A. That's correct, sir. Q. That is correct, isn't it? A. I knew he was inside. Q. And you told him that because you knew you could be in trouble? A. That's correct, sir." Mr Paea 80Mr Paea was the other security guard employed by DSSS Cousins who was on duty on the night in question. He was not called to give evidence, as he could not be located despite attempts to secure his attendance by the issue of a subpoena. He is seen on the CCTV footage on Wellington Street in the early hours of the morning at times shortly before Mr Orcher was attacked. Mr Paea is the security guard who is referred to by Ms Williams as the person that she says she saw standing shoulder-to-shoulder with Mr Paseka on the footpath outside the Wellington Street entrance to the hotel.

[233] By contrast, in Deatons, the barmaid who threw the glass did so in retaliation for a blow and an insult, not in self-defence and not in any way in the supposed furtherance of the employer's interests (whether in keeping order in the bar or otherwise)..." 110The following passage from the judgment of Basten JA in Zorom at [41] should also be noted: "... the language used demonstrates that the assailant was seeking to disperse the group and have them move on, albeit in an entirely unacceptable fashion. The fact that he struck not merely the plaintiff, but three persons in a short period, together with the words used, demonstrates that he perceived himself as acting in the interests of his employer and in the performance of his employment duties..." 111Mr Orcher referred finally to much of what was said by Ipp JA in Sprod bnf v Public Relations Oriented Security Pty Ltd [2007] NSWCA 319; (2007) Aust Torts Reports 81-921. The following passages were emphasised: "[52] One thing seems to be clear according to the weight of authority. There are circumstances under which an employer may become vicariously liable for unauthorised acts of an employee, even when those acts are criminal and even when the employer has expressly instructed the employee not to perform acts of that kind. [53] It is not possible to discern a generally accepted jurisprudential theory that underlies the imposition of liability on an employer in this situation. Liability without fault is an unusual phenomenon when its source is not legislation but the common law. Explanations based on estoppel or ostensible authority seek in some way to attribute the vicarious liability of employers for criminal acts of employees committed contrary to their instructions to conduct of the employers themselves. It is difficult, however, to comprehend how a criminal act could ordinarily fall within the ambit of ostensible authority, and estoppel seems quite out of place in this context (for example, how are the elements of reliance and detriment satisfied?). The explanation that liability is incurred when acts are done in the intended pursuit of the employer's interests or in the ostensible pursuit of the employer's business means that the employer may be entirely at the mercy of the employee. On this basis, no matter what instructions the employer may give the employee, the employer may be liable if the employee disobeys those instructions and commits a criminal act in the subjective belief that by doing so the employer's interests will be advanced. In the end, the only explanation that is satisfactory is that of policy, and judicial policy at that. [54] It is not easy to trace a certain and secure path through the dicta. The safest course is to attempt to apply all of them to the facts of the particular case. The answers that this course produces will assist in resolving the issue, particularly if the answers, or a substantial majority of them, are the same.

[79]... There may well have been an element of personal animosity and personal vindictiveness, but, in my view, the three matters indicate that this element was not the dominant cause of the assault. In my opinion, the dominant cause of the assault was a desire on the part of the guards to do their duty by ensuring that the appellant would not again make a pest of himself at the shop, would not return to the shop, and would not again molest the customers, particularly Ms Synnerdahl (who was told "not to worry" by one of the guards after the assault had occurred). [80] In the light of the conclusion to which I have come concerning the reasons for the assault, I am of the opinion that the assault was "incidental" to the employment of the guards in the sense that this word was used by Latham CJ in Deatons (at 378). The assault was not a gratuitous unprovoked act. It had a great deal to do with the performance of the guards' duties. And, to use the expression adopted by Latham CJ in Deatons (at 379), it was an act "performed as on behalf of the employer" and "in the supposed furtherance of the interests of the employer". The guards were not acting as "strangers" in relation to their employer with respect to the assault (in the sense that this phraseology was used in Bugge v Brown (at 118)). The guards, in the course of carrying out their employment, committed "an excess beyond the scope of [their] authority (see Dyer v Munday (at 746)). [81] In my opinion, to paraphrase Dixon J in Deatons (at 381), the assault was an improper act due to ill judgment but done in the supposed furtherance of the master's (the respondent's) interests. The assault was an act to which the ostensible performance of the employer's work gave occasion and the assault was committed in furtherance of the employer's interests. [82] The guards assaulted the appellant "in the course of fulfilling [their duty] which the [respondent] entrusted to [them]" (to use the words employed by McTiernan J in Deatons at 382). [83] In my opinion, the conduct of the guards was so connected with acts that the respondent authorised them to perform that they may be regarded as modes - although highly improper modes - of doing them (and, thus, falls within the test formulated by Salmond, approved by Williams J in Deatons (at 384), and by Gleeson CJ and Kirby J - subject to qualification - in Lepore (at 539, [51] and at 614, [307], respectively)). [84] The remarks I have made explain why I consider the requirements laid down by Gleeson CJ in Lepore for liability by an employer for unauthorised criminal wrongdoing by an employee are satisfied. The same applies to the reasons expressed by Gaudron J in that case. The assault was committed in the intended pursuit of the respondent's interests or in the ostensible pursuit of its business, and so satisfied the requirements of Gummow and Hayne JJ in Lepore (at 594, [239]). The connection between the unauthorised acts of the guards and the acts which their employer, the respondent, authorised, was sufficiently close, according to the criteria laid down by Kirby J in Lepore, to extend vicarious liability to the respondent for the intentional wrongdoing of its employees." [Emphasis added] 112Mr Orcher submitted that it did not matter whether or not Mr Paseka was in truth "a bouncer". That was because pursuant to the legislation and the Bridge Hotel House Policy, all staff had a role in, and a responsibility for, the protection of patrons from violence and intervention if there was loud or unruly behaviour within the vicinity of the hotel, at least to the extent that individual staff members felt capable and comfortable in doing so. In that respect Mr Orcher submitted that there has been a considerable development since Deatons was decided in terms of the social context or background against which the issue of vicarious liability for conduct on licensed premises is to be determined. Modern licensing legislation reflects the concern of society to prevent violence against patrons and the role of all staff in achieving it. Moreover, in Deatons there was no involvement of security guards or personnel capable of regulating an incident between patrons: the incident was solely between a patron and an employee. 113Mr Orcher submitted that in the absence of any evidence from Mr Paseka to the contrary, there arises a comfortable inference that Mr Paseka initially crossed the street to try to reach him and Izzy to get them "to calm down", and that that was consistent with the hotel's undertakings and the House Policy. On that basis, Mr Paseka was acting in furtherance of the commercial interests of Bowcliff, his employer, and Mr Paseka did not cross the street intending to exact some revenge or retribution upon Mr Orcher. Mr Paseka did overreact when provoked. Mr Orcher contended that that is to be properly characterised as an improper means of engaging in an activity which all hotel staff were authorised to engage in, namely, preventing loud, violent or quarrelsome conduct between patrons from escalating. 114Mr Orcher argued that, on the strength of the authorities referred to, the question of whether Mr Paseka had or had not stopped working was a "false issue". The question was simply whether the employee was acting in furtherance of the employer's interests, not whether the employee was "on duty". Mr Orcher contended that "it cannot be the law that an employer is not vicariously liable for the conduct of an employee still at the business premises of the employer". In this case, the business premises are said relevantly to extend into Wellington Street. Vicarious liability: Mr Keough 115Mr Orcher submitted that Mr Keough may be vicariously liable for Mr Paseka's conduct inasmuch as vicarious liability is imposed not on the basis of some identifiable principle that supports the doctrine but upon the basis of public policy. Additionally, vicarious liability is not limited to the wrongdoer's actual employer and in appropriate circumstances may be imposed upon an employer pro hac vice. 116In the circumstances of the present case, the business enterprise was said to be in substance Mr Keough's business. He owned the land, together with his mother. He held the licence for the hotel. The evidence established that as licensee of the hotel, Mr Keough was regularly on site to manage the hotel and its staff. The Liquor Act 2007 imposes obligations on the licensee personally. 117Mr Orcher contended that Bowcliff was in effect a shell, with no independent board exercising management skills and no separate shareholders. That was to be contrasted with the position in cases like Scott v Davis [2000] HCA 52; (2000) 204 CLR 333, where the pilot brought independent skill to bear. 118Mr Orcher submitted that the special circumstances and relationships between a licensee and staff working at the licensed premises justified the licensee, not the actual employer, being vicariously liable for the conduct of Mr Paseka that was performed in furtherance or satisfaction of Mr Keough's obligations under his licence.

Orcher v Bowcliff Pty Ltd

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