Perkins v Redmond Company Pty Ltd [2007] NSWDC 147 | Case summary

District Court of NSW|2007-06-01|Before: Mr J

CITATION: Perkins v Redmond Company Pty Ltd [2007] NSWDC 147

CATCHWORDS: NEGLIGENCE - Altercation between two patrons on licensed premises resulting in injury to plaintiff - Whether licensee failed to provide adequate security at the premises - Content of duty of licensee - Relevance of non-compliance with conditions imposed on Place of Public Entertainment licence - Whether duty of care delegated to security company - Causation - Contributory negligence - Assessment of damages

Civil Liability Act 2002, ss 5B, 5C, 5D LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946, s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Liquor Act 1982, s 125

Abela v Giew [1965] NSWR 913; (1965) 65 SR (NSW) 485 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Browne v Dunn (1893) 6 R 67 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; [2004] HCA 29 Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; [2003] HCA 34 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44 Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200; [2007] HCA 6 CASES CITED: Manly Council v Byrne [2004] NSWCA 123 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Newcastle Entertainment Security Pty Ltd v Simpson (1999) Aust Torts Reports 81-528; [1999] NSWCA 351 Oxlade v Gosbridge Pty Ltd (NSWCA, 18/12/1998, unreported, BC9807725) Payne v Parker [1976] 1 NSWLR 191 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659; [2002] NSWCA 381 Scalise v Bezzina [2003] NSWCA 362 Spedding v Nobles [2007] NSWCA 29 Sweeney v Boylan Nominees Pty Ltd (2006) 227 ALR 46; [2006] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; [2005] HCA 62 Wagstaff v Haslam [2007] NSWCA 28 Water Board v Moustakas (1988) 180 CLR 491 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Andrew Stuart Perkins (Plaintiff) Redmond Company Pty Limited (Defendant)

COUNSEL: Mr J Anderson (Plaintiff) Mr M Joseph SC (Defendant)

SOLICITORS: Koffels (Plaintiff) McCabe Terrill Lawyers Pty Limited (Defendant)

1 The defendant, for whom Mr M Joseph SC appears, is the licensee and occupant of a licensed hotel known as St Patrick's Tavern, at 66 King St Sydney ("the tavern"). On Friday 6 August 2004 the plaintiff, for whom Mr J Anderson of counsel appears, was present at the tavern and was struck in the eye by a glass thrown by another customer of the tavern ("the assailant").

2 The plaintiff, who was born on 28 June 1975 and is now 32 years of age, suffered significant injury to his eyeball which was lacerated by the glass, as was his eyelid, and had to undergo a reconstruction of the left eyeball that has, it is agreed, effectively lost him 90% of his vision in the left eye.

3 The assailant has never been identified or apprehended.

4 The plaintiff's claim against the defendant is essentially first that the level of security at the tavern was inadequate having regard to the nature of the premises, its location and history and the conditions imposed on it, and second that the response of the security guards who were there was inadequate: see T18.41-T19.8.

5 The defendant disputes that the level of security was inadequate or that the response of the security guard present near the dance floor was inadequate. The defendant points out that it was not the employer of the security guards - security was arranged by it with 24/7 Safe & Secure Pty Ltd ("Safe & Secure"), which provided the security guards and was their employer.

6 The plaintiff was taken from the tavern to Sydney Eye Hospital where surgery was performed on 7 August 2004, following which he was taken to Balmoral Naval Hospital at Mosman. Subsequently Dr Alexander P Hunyor operated on the plaintiff's left eye as a result of haemorrhage and detachment of the retina, performing a left pars plana vitrectomy, lens extraction, insertion of intraocular lens, scleral buckling, laser, and insertion of silicone oil at Dalcross Private Hospital on 24 August 2004. The loss of vision in the left eye is permanent (see report of 25/11/04, Exhibit "A", and report of Stuart Graham of 28/04/06, pp 127-128 Exhibit "A"). Dr Graham noted (at p 128): "… He reports other more physical activities have needed to be limited, for example he previously had service in Iraq and this required using ropes to exit helicopters. Without his stereo vision, reaching for a rope in mid air is quite dangerous and would not be advisable.

In terms of social activities his ability to play ball sports is significantly reduced due to the loss of stereo vision.

Monocular patients can learn to adapt to a large extent with monocular clues to depth and can return to the workforce and drive a car legally. However they are certainly not as adept as binocular normal subjects and there are definite limitations on their work related tasks and sports performance as a result.

I think Mr Perkins is fit for work, but there would be certain restrictions regarding working at heights, working with ladders and ropes which may normally be part of his job in the Navy. He must avoid working with any scenario that might endanger his relatively normal right eye."

7 Dr Hunyor described the plaintiff as having "severe reduction of vision in the left eye" but would expect him to be able to resume many of the activities he previously enjoyed. He said he will have permanently reduced vision in his left eye "so that he has no useful central vision but does have some peripheral vision on the left side": p 126.

8 The plaintiff claims also to have suffered a psychological condition which I shall describe in more detail after I have dealt with liability.

(1) The plaintiff, at the time a naval petty officer, and his five naval colleagues arrived at the tavern in the evening (the plaintiff says at about 9 pm, the defendant says it must have been earlier at about 7 pm). The plaintiff had been conducting a course in relation to the CIWS naval weapons system over an eight month period and the colleagues were his students in that course. Three of those colleagues, Mr Troy Stephenson, Mr Paul Keating and Mr Steven Allen, gave evidence in the proceedings.

(2) The tavern was far from full at that time. Some of the patrons were on the dance floor and some were near the bar: see T53.29-43 and T151-T152. By the time of the incident, the plaintiff's estimate of the number of people in the tavern was 100 (see T151-T152), but see also T53.29-43 in relation to the number of people dancing when the band started. The estimates of Mr Allen, Mr Stephenson and Mr Keating tended to indicate a lower number but the plaintiff was not challenged on his estimate and it is very difficult to estimate numbers accurately. Given the other evidence, 100 would be the number of patrons present at the time of the incident.

(3) In the period of approximately half an hour before the incident the band commenced playing on the stage in front of the dance floor.

(5) There was a security guard on the front door when the plaintiff and his entourage arrived. The front door is on the King Street level.

(6) The bar and dance floor were on a lower level. The basic layout of the dance floor and bar can be seen in Exhibit "B".

(7) It is agreed that there was a stage on the eastern side of the premises in approximately the position which it is depicted in Exhibit "B". The plaintiff does not accept that the stage was not rectangular at its northern end, but I think it is clear from the footage to which I shall later refer that it was not, and see too the unchallenged evidence of the licensee at T494.5.

(8) There was at the time of the incident a security guard on the lower level and he was located near the foot of the stairs leading down from King Street.

(9) The defendant, an operator of the tavern, had its own bar staff and manager but it did not employ the security guards.

(10) The defendant had in place a system of closed circuit television cameras. The defendant had 14 such cameras in place on the night. (The plaintiff asserts that there were, in addition to the 14, another four cameras above the dance floor.) There was no evidence that anyone was or would normally be monitoring the images produced through those cameras.

(11) The assailant ran from the tavern immediately he had thrown the glass and injured the plaintiff. He can be seen in the footage produced by the defendant, and is best seen in photo number 1 forming part of Exhibit "9", heading to the stairs at 22.03.35; making his way up the stairs in photo 4 at 22.03.38; and fleeing the building in photo 5 at 22.03.40.

(12) There is no evidence to suggest that the assailant was himself affected by alcohol, or known to be a trouble maker or aggressive, or that he had caused any trouble prior to the altercation with the plaintiff.

(13) The defendant accepts that the throwing of the glass by the assailant was a criminal act, and was not an act of self defence.

(14) The Sydney City Council ("SCC") following input from the NSW Police, in 2001, imposed conditions on the issue of a Place of Public Entertainment licence ("POPE licence") issued by the SCC. Those conditions, which were in place at the time of the incident, required the defendant to engage eight security officers from 8 pm onwards on Friday, Saturday and Sunday nights, two of whom were required to man the front entrance, two to patrol King St near the entrance and four to patrol inside the premises: see Exhibit "A" p 122.

10 The following factual matters are in dispute in relation to liability:

(1) The degree of intoxication of the plaintiff as at the time of the incident.

(2) The time at which the plaintiff arrived with his friends at the tavern.

(3) The level of responsibility of the plaintiff for the confrontation.

(4) The precise location of the plaintiff at the time of the incident. This has significance only in relation to the question of whether the incident occurred in a place at which it could not be observed by the security guard who was on duty, and the degree of visibility generally.

(5) The precise amount of time which transpired from the first physical step in the altercation to the injury to the eye.

(6) Whether the four ceiling cameras located over the area that was formerly part of the dance floor (and is now a poker machine area) were in place on 6 August 2004.

(7) The significance of incidents reported to the police in the three years before the incident involving the plaintiff.

(9) The conclusion to be drawn from the evidence or lack of it regarding the security arrangements.

(1) Did the defendant owe the plaintiff a duty of care?

(3) Was such duty of care as was owed by the defendant to the plaintiff breached?

(6) If the answer to (3) is yes, and the answer to (4) or (5) is no, was the breach causative of the injury?

(7) Did the plaintiff contribute to the injury which he suffered within the meaning of s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, and if so, what is the just and equitable apportionment as between the plaintiff and defendant?

12 The plaintiff's version of events is that whilst he was on the dance floor dancing in a fashion by himself rather than with someone, the assailant bumped, with a slight bump, into the plaintiff's back twice over a short period of time and that the plaintiff then became annoyed and pushed the assailant back by putting his left arm on the assailant's chest, saying "back off" at that time. The assailant then started punching the plaintiff eight to ten times (T57.36) and the plaintiff sought to defend himself by holding up his left arm to protect his head (unsuccessfully in the case of one or two blows), but whilst still retaining in his right hand his glass of beer. He says that he managed to separate himself from the assailant and that he thought the incident was over and then said to the assailant in a relatively loud but not overly loud voice (T185.50) "You effing arsehole" ("effing" being used in evidence, I took it, out of politeness to the Court and its staff) or words of a similar abusive kind that were "not nice" (see T185.40), following which the assailant picked up a glass and threw it from a distance of approximately two metres (see the evidence of Mr Keating at T283.15), which hit the plaintiff in the forehead and eye. The photos of the plaintiff (Exhibits "C" and "D") show the laceration around the eye, clearly a result of the glass having hit the plaintiff, and also a split lip. On the plaintiff's version, all of this incident from his first shove to the glass in his eye took place over the space of 25-30 seconds: see T57.55, T58.46-49.

13 The plaintiff said in his evidence that he was, during the incident, located between the pillars seen in Exhibit "B" where he has marked a "P".

14 The defendant attacked the credibility of the plaintiff on a number of fronts and relevant to the description of the incident, particularly in relation to:

(1) the plaintiff's assertion that he was not particularly intoxicated;

(3) the asserted absence of any punches being thrown by the plaintiff;

(4) the manner in which the plaintiff and the assailant were separated;

(5) the location of the plaintiff at the time of the incident;

15 There were a number of matters which cause me to doubt the reliability of the plaintiff as a witness, namely:

(1) The plaintiff's evidence that he had been punched eight to ten times (T57.55) did not sit comfortably with his statement to the police on 8 August 2004 in which he described the incident as follows (Exhibit "7"): "The VIC told police he only remembers bits and pieces but remembers a scuffle with other males. He remembers pushing a male away from him because this other male was bigger than him he then remembers a 'thud' into his face and he knew he was in trouble."

or with his statement to his solicitor on 2 September 2004 (three weeks after the incident) that he had been punched a couple of times: see T173.

(2) The plaintiff's assertion that he did not mean by "couple" what is normally meant, ie "twice", and his answers in cross examination at T173-T174 about this discrepancy were unconvincing. The exaggeration of the number of punches was, I think, an attempt to extend the period of the altercation. Mr Allen, one of the witnesses called by the plaintiff said that the assailant had hit the plaintiff about five or six times (T395.10), but he had told the police a "few punches", and he retreated from five or six (at T409.5-14) to more than two. Mr Keating in chief said five or six punches were thrown by the assailant (T282.8-10) but at T314.30-36 he indicated his uncertainty.

(3) The plaintiff's assertion in chief that he had only four light beers over nine hours (from 1 pm to 10 pm), which expanded to six in cross examination, was difficult to accept given a number of matters. They are:

(a) An ambulance officer who attended on the plaintiff wrote in her notes "ETOH ++", which stands for a "lot of" or a "fair bit of" alcohol (ethyl alcohol) (see Exhibit "3" and T253.30-34). That assessment by the ambulance officer, Ms Bird, was not a result of any detailed examination or of course any blood alcohol test, and there were factors which undercut its significance - the plaintiff was noted as 15/15 on the Glasgow Coma Scale, meaning even though he had had a quantity of alcohol he was still alert to what was going on (T254.49), but it is nevertheless of some relevance. There is also the note of a casualty doctor at the eye hospital: "v. intoxicated poor cooperation" (standing for very intoxicated) in relation to the plaintiff: Exhibit "3", and see the evidence of Mr Emmanuel Doromal at T35. These notes are consistent with a lunch, and after that, afternoon and evening attendances at five different venues including the tavern, in an end-of-course celebration of naval men with no pressing obligations, of which the plaintiff and three of his colleagues gave evidence. The plaintiff's assertion that they were attending these various establishments "to talk" (T193.4) was not convincing.

(b) The plaintiff's lack of recollection of the events as demonstrated by Exhibit "7" is some further corroboration of his lack of sobriety.

(c) If his evidence that he stood with a beer in his hand whilst being struck is accepted (he accepted that to have done so was "silly" (see T172.40), and which seemed to be unlikely although it would support his contention that he spilled liquor on himself), that, and his annoyance and what he admitted was his own unreasonable conduct (see T159.15), are further matters which tend to point to a more significant degree of intoxication than the plaintiff and his colleagues would have the Court believe was the case. The plaintiff's wife, Ms Lamont, who visited the plaintiff in hospital gave no evidence that would undermine the correctness of the doctor's entry (or the ambulance officer's entry).

(d) I take into account the fact that whatever was the level of intoxication that the plaintiff and his companions exhibited prior to entry into the tavern, it did not lead to them being excluded from the premises by the security guard at the entrance or removed from the tavern, although the absence of removal is consistent with a very limited security presence, a matter to which I shall return.

(e) Mr Allen admitted that he had drunk more than one bourbon and Coke in each of the places they had visited and that they had been at the tavern for approximately two and a half hours (see T401.44-47) (as he had said in his statement to police: T402.57-T403.2), and the plaintiff (and I infer the other members of the group) had been drinking at the tavern (T402.55). It does appear that on the plaintiff's evidence of attendances and time elapsed, and Mr Allen's evidence; that the plaintiff must have been at the tavern by approximately 7.30 pm and not 9 pm as the plaintiff asserts. That would also have an effect on his reliability on the question of how many drinks he had had.

(4) The plaintiff's assertion that his memory of the night was good (see T125.40-43) did not sit well with his report to the police two days after the incident, and his assertion that he had had a conversation with the security guard at the door seemed somewhat contrived - it was not corroborated by any of his other colleagues - as an attempt to create the impression that his memory of the night was good.

(5) The plaintiff denied having gone to football games but Mr Keating says he went with the plaintiff to a Swans game at Telstra Stadium exhibiting no concern: T287-T288.

(6) His dealing with the confrontational aspect of his first response to the bumping (T158-T159) in which he agreed ultimately that his behaviour looks like it was confrontational (at T159.11), and his brief attempt to assert he did not know what "confrontational" meant.

(7) He denied having any training in combat (T155.39) but this was contradicted by Mr Keating's evidence of what training is given to boarding parties (T292-T293), and the plaintiff's evidence that he had been a member of boarding parties.

(8) The plaintiff's assertion (at T124.23) that the position of Mr Tischler, the man whose job he is likely to take over, is exactly the same as his, was demonstrated to be incorrect: T169.50-T170.

(9) Whilst not a major matter, the plaintiff's evidence in chief about his family's involvement in the Navy (see T37.54-T38, T70.10) gave the impression that they had remained in the Navy for all of their careers, which was not the position: see T116.

(10) He said initially in answer to the question whether he had spoken to his colleagues about the night in question "No, not really" (T154.45), but at T156.15 he said he had spoken about the amount of alcohol. The plaintiff denied having had any conversation about the night of the incident with Mr Allen, Mr Stephenson or Mr Keating, and they also denied having had any such conversation with the plaintiff. This seems surprising, particularly give the plaintiff's contact with Mr Keating over a long period of time.

16 Mr Joseph relied on, as an additional important issue on credibility, an assertion that the plaintiff's positioning of himself near pillars (or "pylons" as the plaintiff called them) seemed to have an air of reconstruction, particularly since at a time when he answered the defendant's request for particulars and provided a sketch (see Exhibit "5") no reference was made to the pillars at all. Mr Joseph put to the plaintiff that the pillars had only come into play once the plaintiff had become aware that, contrary to his prior belief, there was in fact a security guard downstairs at the time of the incident. The plaintiff's friends in their evidence were not consistent as to the plaintiff's precise location: see Mr Allen at T40, T397, Mr Stephenson at T242-T243 and Mr Keating at T280, Exhibit "F" and Exhibit "H", although this is hardly surprising given the passage of time. Whilst I think that there may be some element of reconstruction there are three factors which lead me to exclude this as a factor negative to the plaintiff's credibility:

(1) the plaintiff was not given (as he should have been) a proper plan of the area when he answered the particulars;

(2) it has not been demonstrated as a fact that the plaintiff was not located behind a pillar out of sight of the security guard - if anything the evidence rather supports that contention;

(3) the fact that pillars when shown on a plan assisted in location of the position of the altercation is not so surprising - and their absence on a sketch when their location is not known and not important is not surprising either.

17 The matters to which I have referred have only a limited bearing on the common law duty of care owed by the defendant. Whatever the plaintiff's level of intoxication, it is not suggested by the defendant that he was not entitled to remain on the premises of the tavern. Wherever he was standing, on the balance of probabilities, the attack and the lead up to it were not observed by the defendant's staff or the security guard in the basement. The number of punches that the assailant launched, whether or not the plaintiff struck back or merely defended himself in response to the assailant's punches, and the extent of the plaintiff's intoxication, have no direct bearing on the liability of the defendant - the only substantive relevance of it is to the question of how long the incident took and what would have been observable to a security guard. I think that the plaintiff's evidence that he was struck eight to ten times by the assailant is an exaggeration, which I do not accept, but I did not find his estimate of effectively 25-30 seconds as itself obviously exaggerated and even less so if there was a period of "facing off" as Mr Allen described it. Estimates of time, particularly as short as seconds, are inherently difficult to make by anyone, even without any deliberate exaggeration and the effect of alcohol on the witnesses is a further factor. It is very difficult to assess how long the incident took, but it was brief and on the balance of probabilities in the order of 30 seconds but not more than 40 seconds, allowing for the fact that the plaintiff was probably restrained by one or more of his friends and separated from the assailant before the glass was thrown, and that there had been a period of "facing off" before punches were thrown.

18 Although I raised the question of applicability of the intoxication provisions of the Civil Liability Act 2002, the defendant appeared to accept that s 50 was not available to it (T16-T17) and no mention was made of this part of the Act in submissions, written or oral.

19 The defendant does not dispute the core element of the plaintiff's account of what occurred on the night. I find that the plaintiff was bumped slightly in the back twice when he was on the dance floor (T56-T57) and that he became annoyed and placed his open hand on the assailant's chest, pushed him back and at the same time said "back off". The assailant then punched the plaintiff two or three times, one of the punches landing on the plaintiff's lip. The assailant and the plaintiff became separated and the plaintiff at a distance of a few metres then said to the assailant "you effing arsehole" (again using a polite means of recording the words said) or something similarly abusive, whereupon (and I infer, on the balance of probabilities, most likely as a result of that abuse) the assailant grabbed a glass from a nearby table or shelf and threw it at the plaintiff, hitting him in the left eye.

20 I find that the incident from the first shove to the throwing of the glass took approximately 30 seconds, and no more than 40 seconds.

21 The plaintiff and his friends say they saw no security guard downstairs. That the plaintiff was not aware of the presence of a guard downstairs is borne out by the instructions that were given to Mr Smith, the expert retained on his behalf. There is undisputed evidence that there was one guard downstairs at the time of the incident but that does not mean that the plaintiff or his friends did see a security guard that night. It is entirely possible that there was no guard downstairs when they arrived downstairs, and that positioned where he was for some or all of the time he was there, he did not take up a position observable to the plaintiff and his friends.

22 Neither of the plaintiff's friends who were close by (Mr Stephenson was further away dancing with a female: T230) heard anything said by the plaintiff, and no coherent version of how the fight developed or was stopped emerged from their evidence, with Mr Allen indicating even that the plaintiff may have traded punches (T408.10-41). According to Mr Allen (T407.50-55) there was a period of "standing off" and stares, which I took to mean before the throwing of punches by the assailant (not after the punches were thrown as the defendant's submissions contended), and the plaintiff and Mr Allen said the assailant was led away by a friend of the assailant before the glass was thrown (T395, T409.40) and there were people restraining the plaintiff too (T410.40). Mr Keating said he saw no-one restrain either the assailant or the plaintiff (T318). The plaintiff's evidence was he pushed the assailant away. I think there is force in Mr Joseph's contention that the intervention of one or more persons is a more likely explanation of how the fighting stopped before the glass was thrown, but the only evidence consistent with that is Mr Allen's evidence. I accept that there was, on the balance of probabilities, a separation of the plaintiff and the assailant by others - no-one suggests that a security guard or guard were involved or present at that time.

23 A view of the premises was held at the request of the plaintiff. The layout of the premises has been altered because the area that was formerly a dance floor has been made a poker machine area. A glass brick wall has been placed between the two pillars which I have mentioned, in effect enclosing them, and glass screens have been placed a few metres behind that brick wall to the south and parallel to it. The defendant, through Mr Eric Redmond ("Eric Redmond"), says that four additional cameras have been added above the poker machine area when it was created after refurbishments. The plaintiff does not accept that they have been added only after the incident. There is no documentary evidence before the Court that points to cameras having been installed after the incident.

24 It was agreed that the distance between the front of the bar and the pillars is 3.22 metres, and that the distance between the eastern wall onto which the stage backed and the first pillar was 2 metres.

25 The entrance to the tavern is on King Street. There is a small foyer with a broad, but fairly short, set of steps leading down to the basement. As noted, a plan of the basement is in evidence as Exhibit "B". The tavern is then, mainly located in the basement.

26 In the bottom right hand corner of Exhibit "B" the stairs can be seen. At the bottom of the stairs leading down to the basement is a stage, which extends to the back wall (the back wall is parallel to King Street but at a lower level). To the north of the stairs is the commencement of the bar. In the area between the bar and the stage was the dance floor. Where the dance floor began is not clear, as it seems that there was no differing flooring. To the west was located a restaurant area (marked as "upper level" on Exhibit "B"). In the area of the dance floor there were two pillars. They have agreed dimensions of 600 mm x 700 mm. These may have offered a boundary of sorts to the northern side of the dance floor.

27 The evidence of Eric Redmond, a director of the defendant and in charge of equipment at the tavern, was that all footage from each of the 14 cameras was retained for a period of 40 days, and wiped by being recorded over at the end of that period: T438.7-14. On the night of the incident the police requested footage of the incident to assist in apprehension of the assailant. To this end Eric Redmond downloaded 59 seconds of footage from Camera No 5, located above the stairs, and footage from cameras at the street entrance to the tavern. The five pieces of footage are found in original form on Exhibit "L" and in a form playable as a DVD on Exhibit "E". Eric Redmond also downloaded stills from the footage available (Exhibit "9"), and later from Exhibit "L" as Exhibit "13". He retained the footage and stills which he downloaded on the night, but did not retain any other portions of the original footage, and the tapes were re-used in accordance with the tavern's ordinary reuse approach. On the evidence of Eric Redmond there was no footage from or near the dance floor or bar other than that which is seen as the fifth episode on Exhibit "L" and on the DVD.

28 There are several versions of Exhibit "B", the plan of the premises, in the exhibits. Exhibit "10" is a version on which Eric Redmond has noted with a "C" the position of 14 cameras in place on the night of the incident. The plaintiff accepts that all of the cameras marked were in the positions so marked, but does not accept that there were no other cameras, asserting that four cameras observed on the view as located above the dance floor area were in place on the night of the incident.

29 Both parties were in agreement that the assailant can be seen in the footage. He appears to be a young man and is wearing a cast on his right hand or wrist. He is observed making his way up the stairs from the basement level to the street level and racing out of the tavern into King Street. It is apparent in the footage that the security guard located on the basement level near the foot of the stairs has become aware of an incident - moves quickly towards the area of the incident and passes the assailant who makes his way to the stairs along the side of the bar. It appears that the security guard has become aware of the presence of the assailant after he has passed him on his way to the scene of the incident because the guard is observed almost immediately after he has passed the assailant coming back towards the stairs and chasing after the assailant. The security guard from downstairs is seen in another of the five clips at the entrance to the tavern with a second security guard and is pointing in the direction that the assailant has fled.

30 The security camera gives a somewhat distorted picture of the area downstairs but in addition to depicting what I have just described, it also shows the presence of the stage. On the stage is what appears to be a reflex speaker (for use by the band) and near the first pillar is a box that would appear to be a large speaker. There appears to be little access to the dance floor from where the guard is standing and in fact at the time of reacting to the incident he heads off in a northerly direction through the throng of patrons next to the bar rather than making his way through any path if there indeed be one - none is visible - next to the stage. The other matter is that the guard can be seen in the video looking up the stairs for a time up until approximately 28 seconds into the video. I have mentioned that the fifth and most important clip is 59 seconds long. That is the period for which it runs. Eric Redmond says that the 59 seconds is real time - ie that what takes 59 seconds to play on the screen depicts 59 seconds of events. The plaintiff does not accept that this is so. Mr Anderson at one point argued that since the camera records at four frames per second - the footage depicts six minutes in real time because it is shot at four frames per second but shown at 24 frames per second.

31 The suggestion that the clip depicts six minutes in real time was not supported by any evidence and was not pressed, presumably because it is clear that the assailant fled the scene within far less time than that. I am not persuaded that Eric Redmond's evidence that the 59 seconds of footage does represent 59 seconds of real time is unreliable and I accordingly accept his evidence on this point.

32 There is another element of the footage which only becomes apparent on close analysis. At about 33 seconds into the clip, towards the top left hand corner of the screen a crouching figure can be made out. That would seem to be the plaintiff after he was hit in the eye with the glass. The plaintiff cannot be seen before that moment in the footage.

33 Section 125 of the Liquor Act 1982 provides: " 125 Conduct on licensed premises

(a) permit his or her licensed premises to be used for the purposes of prostitution, or

(b) permit intoxication, or any indecent, violent or quarrelsome conduct , on his or her licensed premises.

Maximum penalty: 20 penalty units in the case of an offence under paragraph (a) or 50 penalty units in the case of an offence under paragraph (b).

(2) A person shall not use any part of licensed premises for the purposes of prostitution.

(3) A person (whether or not he or she is the licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication.

(4) Where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subsection (4A) or all other reasonable steps to prevent intoxication on the licensed premises.

(4A) For the purposes of subsection (4), the following are the relevant steps:

(a) asked the intoxicated person to leave the premises,

(b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises,

(5) In the application of this section to a caterer's licence, a reference to licensed premises does not include private domestic premises except in subsection (3)." [emphasis added]

34 The licence issued to the defendant in force in August 2004 is found at pp 35-38 of Exhibit "A". The licence is a licence to sell alcoholic beverages. If a hotel or tavern in the CBD wishes to provide entertainment at the premises in the form of live music or "DJ" music, it is required to obtain a POPE licence.

35 The defendant did obtain a POPE licence and as at the date of the incident (and for some considerable time before that), it contained relevantly the following conditions (see Exhibit "A" p 122): "8. On Friday, Saturday and Sunday after 8.00pm two security officers are to remain at the entrance/exit door of the licensed premises until cease of trading for that day.

On Friday, Saturday and Sunday evenings after 8.00pm four security officers are to continually patrol all areas of the licensed premises until cease of trading for that day.

On Friday, Saturday and Sunday evenings after 8.00pm two security officers are to continually patrol the northern side footpath area of King Street between George and York Streets and assist in the quiet and good order of the neighbourhood. These patrols are to continue until thirty minutes after the premises has closed.

Whilst security are employed all patrons entering the premises will be subject to a search by hand held or walk through metal detectors." [emphasis added]

36 The defendant did not comply with the requirements of the POPE licence notwithstanding that he was fully aware of its terms. The licensee, Mr Jeffrey Redmond ("Jeffrey Redmond"), gave evidence about this, with which I shall deal later.

37 The plaintiff tendered as part of Exhibit "A" documents produced by the Commissioner of Police in answer to a subpoena, correspondence and/or records relating to violence at the tavern in the period 6 August 2001 to 6 August 2004. Some of the documents were withdrawn and some I ruled were not relevant as they dealt with incidents that had their genesis on the street outside the tavern rather than inside. Some of the remaining documents related to matters such as the proper recording of incidents in the book and an excessive number of patrons.

38 At p 54 of Exhibit "A" is a COPS report of 31 July 2004. One of the security officers supplied an expired security licence - saying he had applied for a new one. The other security guard was found to be the subject of an outstanding warrant. The fact that he had come under police notice since that time was mentioned. There is nothing to indicate that the matter was raised with anyone other than the security guards themselves.

39 At p 61 of Exhibit "A" is a COPS report of 15 March 2004 from which it appears that a man was escorted from the premises by a security guard who he alleges punched and kicked him in the head when he was on the ground. The report notes that the security roster log was sighted. Footage of the incident and the lead up to it was provided by the licensee and master security licence holder - revealing that the victim was aggressive to security and constantly "encroaching on their personal space with his face right in their face". One of the security guards punched the victim (p 63 Exhibit "A") but the victim could not positively identify the guard involved. Another security guard was involved in the scuffle. The report notes that police "will again speak with the master security licence holder to identify the security officer involved", but there is nothing to indicate that they in fact did so or that the licensee was contacted.

40 At p 64 of Exhibit "A" is a COPS report of 29 April 2004 involving an assault by a security officer on a patron. The police did meet with Jeffrey Redmond and Mr Dunning and ask for details of the security guard appearing in the video - the master licensee "insinuated that the POI is an off-duty guard from another premises and his staff are not willing to supply police with his details". Police advised the licensee that they "had decided to impose a number of conditions on his licence relating to security, unless positive identification is given to the police of the POI involved in this serious assault" (p 64). There is no evidence that the police did act upon the threat.

41 At pp 65-68 of Exhibit "A" is a COPS report of 15 March 2004 relating to an assault occasioning grievous bodily harm in the tavern. The report is critical of the tavern staff because they did not call police, and when the victim reported the incident the police found that the staff had cleared the area. There were copies of the security log and stills available. The report said (p 68): "Licensing police have spoken to the owner and master security licence holder relating to the preservation of the crime scene and notification of police after an incident … Licensing police will be contacting all St Pat's staff involved pursuant to sec 104 of the Liquor Act."

42 Pages 69-70 of Exhibit "A" refer to an incident on 28 February 2004 in which a victim was attacked on the dance floor. According to the report (p 70): "The melee continued for several minutes before security separated both parties. … Club security stated that they did not witness the start of the incident and could not help Police adjudicate on who was the aggressor. Police reviewed security footage however due to positioning of the cameras no footage in the dance floor area is available."

43 Pages 71-72 of Exhibit "A" deal with an assault at the tavern, which when the police arrived had not been recorded in the incident book, nor had the security roster been recorded. The manager, Ms Elizabeth Hayes, and a guard were reminded of the obligations "in regards to the incident book".

44 At p 78 of Exhibit "A" is a COPS report noting a visit by police at 1.30 am and five security officers on duty on 1 November 2003. The incident book was sighted and signed.

45 At p 83 of Exhibit "A" is a COPS report dated 5 July 2003 relating to an assault around 3.30 am claimed by a patron to have been committed by security guards. The guards claimed that the "victim" had jumped up onto the stage and the guards had asked him to leave, with the victim reacting aggressively, throwing punches, following which there was a struggle and the "victim" was ejected. The report notes (p 84): "Police enquired as to possible video footage of the incident to which they were informed that there was none in the areas that the incident began and finished."

46 At p 85 of Exhibit "A" is a COPS report dated 9 June 2003 relating to an assault on 18 May 2003 at 1 am.

47 At pp 91-95 of Exhibit "A" is a COPS report dated 10 May 2003 relating to an assault occasioning grievous bodily harm. The report describes a fight between patrons on the dance floor, where the assailant has fled through the front entrance. "The incident occurred in a section of the hotel that is known for poor quality video footage". The report is critical of the hotel staff for cleaning up the crime scene prior to police arrival (p 94). There is also a report by the victim that he heard one of the staff say, "I want him to walk out of here. There's no way he's going on a stretcher", and heard staff disputing whether or not to call police. He is reported as saying "he was subjected to someone attempting to pour water down his throat on several occasions" (p 95).

48 At p 96 of Exhibit "A" is a COPS report dated 16 June 2002 detailing an assault occasioning actual bodily harm on a patron at the tavern on 16 June 2002.

49 At p 99 is a COPS report of 20 December 2001 of an assault occasioning actual bodily harm on 20 December 2001 on a patron at 1.30 am.

50 At p 102 is a similar report of 16 December 2001.

51 At pp 103-104 is a COPS report of 17 December 2001 relating to an incident at 1.55 am that morning. There was an incident on the dance floor - with a punch being thrown - security guards did become involved and stopped the fight. There is nothing in the report critical of the security personnel.

52 At p 105 is a COPS report dated 16 September 2001 of an incident on 20 August 2001 at 1.05 am - involving an assault occasioning grievous bodily harm. The club was very crowded with men from various football clubs. The victim was "king hit" when he endeavoured to approach a female friend who had been spat upon by an unknown male. He suffered significant injury. The victim was "carried outside and placed on the footpath", which would seem inappropriate given that he sustained a fractured skull and was not fully conscious. When the police arrived there were approximately 50 persons fighting outside the club (p 106).

53 At pp 108-109 is a report dated 31 August 2001 of a failure by the manager (Ms Elizabeth Hayes) to remove several dozen patrons seriously affected by intoxicating liquor. The police required the immediate cessation of trading, which was effected. The report continues (p 109): "Police then interviewed the POI. During that interview it became obvious to police that the licensee was employing young duty managers who had little experience in this field and unaware of their responsibilities.

Further inquiries are to be made with the licensee as it appears he is employing these managers in what might be an attempt to have them penalised for the actions and trading practices of the premises.

The POI has not yet had the benefit of a warning on the C.O.P.S. and whilst her actions, or lack of action on this occasion may amount to a serious breach of the hotel's conditions police must issue a warning before taking further action.

Police will speak to the licensee further about this recent practice of employing inexperienced managers with a view of notifying the courts of such practice and taking action via the courts against the licensee."

54 At pp 110-112 of Exhibit "A" is a COPS report dated 20 August 2001 of an assault occasioning actual bodily harm at 1.30 am. It deals with the same night as that at p 105 and involves a brawl involving about 30 people inside the hotel.

55 At p 113 of Exhibit "A" is a COPS report of 5 August 2001 relating to visit on that date by police to the tavern, where according to the report the police found "numerous well intoxicated persons". They spoke to Eric Redmond believing him to be the licensee, and noted that he agreed "that there were far too many intoxicated persons on the premises", and the POI informed he would be breached over this matter. The police warned that if it occurred again they would "take further immediate action against the hotel" (p 113). It went on: "Infringements issued for numerous intoxicated persons".

56 The plaintiff points to this material to establish that assaults, including violent assaults, were not uncommon at the tavern in the three years before the incident involving the plaintiff. He also relies on it to show that the defendant's "house" was not run as it should have been - on two occasions the police found a large number of patrons heavily intoxicated and spoke to the manager on one occasion and Eric Redmond (believing him to be the licensee), and that the police had issued infringement notices.

57 What the material to which I have referred does establish is that assaults, even violent assaults, leading to the need for police intervention, occurred within three years prior to the incident of 6 August 2004 and hence could be expected to occur from time to time. That possibility would have had to be expected in any event having regard to the location of the premises and nature of the business (ie selling alcohol to persons in the age group of 20-40 with DJ music and live music provided: see the report of Mr Smith, Exhibit "A"). The defendant does not dispute that it was foreseeable that a patron might become aggressive to another patron, without any appropriate basis, and launch into an unjustifiable attack, but says that that foreseeability does not impose a duty on the defendant to prevent any such possibility. The defendant, it was submitted by Mr Joseph, does not and could not be expected to guarantee that no such incidents will occur.

58 The plaintiff also seeks to rely on the incident reports to point to the repeated inability of the defendant to provide footage over the dance floor, and it is relied on to attack Jeffrey Redmond's credit since he says that he was not aware of any of these occasions of breach and/or warnings.

59 The defendant submits that the police reports must be approached with care since they often contain material which is hearsay and which is difficult to refute. The defendant says that over a three year period there are not that many incidents considering the hotel is open all hours and has up to 292 patrons on a busy Friday or Saturday night.

60 This case is not concerned with whether the defendant did or did not properly maintain its incident book or security log or whether on occasions it permitted more patrons in the hotel than its licence permitted. It is concerned with whether, if the defendant owed a duty to the plaintiff in relation to the provision of security, it breached that duty, and whether the breach, if established, was causative of the injury suffered by the plaintiff.

61 The defendant seeks to establish what in fact were the security arrangements in place on the night by reference, inter alia, to Exhibit "4". The defendant did not tender or produce in answer to a Notice to Produce an incidents book or a security register (the two may be different things) nor any of the protocols for security that the defendant's expert Mr Jennings said were commonly in writing. The defendant did not tender or produce in an answer to a Notice to Produce any footage from a location above the dance floor. The defendant did not produce in answer to a subpoena any documents relating to the security arrangements in place. Explanations have been proffered by the defendant, and the plaintiff attacks those explanations. I shall deal with these contested matters.

62 The plaintiff called into question the defendant's assertion that no footage of the incident is available other than that which is now in evidence. The plaintiff points to the existence now of the four cameras above the area that was the dance floor and says that Eric Redmond's evidence should not be accepted and that the defendant has deliberately withheld or wiped the evidence of the incident that was available to it because it will not assist its case.

63 The suggestion that the defendant has deliberately withheld or removed evidence is a serious one. The plaintiff in support of the attack upon the bona fides and credit of the defendant's witnesses points to a number of other matters beyond the current location of the cameras. These are:

(i) the circumstances in which Exhibit "4" became an exhibit;

(ii) the circumstances in which pp 11-34 of Exhibit "A" came to be held by the defendant; and

(iii) the explanation given by Eric Redmond as to why there were no cameras above the dance floor, ie that lighting was poor.

64 Exhibit "4" headed "St Patrick's Tavern - City - Security Hours week ending 08/08/04 - week 32", appears to be a listing of security officers and the number of hours worked by those officers at the tavern (and other establishments owned by the defendant).

65 On the first day of the hearing when Mr Anderson sought to tender the plaintiff's bundle of documents (which became Exhibit "A"), Mr Joseph for the defendant sought to add to the tender Exhibit "4". He said in describing it at T85.39: "it appears to be in the form of an invoice to pay a certain company - 24/7 Safe & Secure Pty Limited - and identifies the sum involved."

66 The subpoena addressed to the defendant (pp 1-5 of Exhibit "A") had the following paragraphs: "The documents or things you must produce are as follows:

Any and all agreements, correspondence, copy correspondence, memoranda and/or other documents comprising and/or relating to the engagement and/or provision of security personnel at the St Patrick's Tavern as at 6 August 2004.

Any and all copy group certificates, PPS declarations and/or other records relating to the employment of staff engaged at the St Patrick's Tavern as at 6 August 2004.

The defendant's staff roster for the St Patrick's Tavern in relation to the night of 6 August 2004.

Any and all documents containing and/or relating to assessments conducted by the defendant before 6 August 2004 in relation to security risks and/or violent behaviours at the St Patrick's Tavern.

Any and all documents comprising and/or relating to the issue of any licence under the Liquor Act 1982 in respect of the St Patrick's Tavern and/or in relation to any renewal and/or variation of any such licence."

67 Mr Joseph at T79.22 said: "Included in the report [an investigator's report] are documents that fall within that description [ie para 1 of the subpoena] for which the subpoena was issued, not produced but came into our possession after the subpoena was produced. I wish to provide those to the court as to being a proper answer to the subpoena."

68 Mr Joseph argued at that point that it would be misleading to the Court to receive the documents contained in Tab 4 of Exhibit "A" in answer to the subpoena, if the document in question and then proffered was not added: T81.7-14, T86.45.

69 When I inquired of Mr Joseph why it had not been produced in answer to the subpoena he said at T80.23-28: "I haven't got instructions on that, your Honour. Your Honour, can I just indicate there was a fire, there was an administrative block. I haven't got instructions on that. I don't want to make up [excuses], your Honour, but the reality is there's no issue that there were security people involved on this night."

70 Exhibit "4" was tendered by the plaintiff as Exhibit "A" on an application to adjourn the proceedings (which application was refused). When Mr Joseph sought to tender the document in the substantive hearing it was admitted without objection: T 94.1.

71 When Eric Redmond gave evidence he said at T446 that there was a fire at St Patrick's Tavern Seven Hills on 17 October 2004 in which the defendant lost documents - "all our incident reports for the year 2004 that were being [stored] there" and "All our records … Of three hotels" "including the city": T447.

72 At T474 he was asked about Exhibit "4" and how that had not been destroyed, saying that the Exhibit "4" was not the actual document but rather was a reconstruction by obtaining the pay details from Safe & Secure. He said he had helped in the reconstruction as had Ms Anne Rice, the office manager, located at Mount Druitt. Ms Rice had rung Safe & Secure and obtained details of the amount paid and then worked backwards: T 476.

73 Eric Redmond said that it was not possible that the security company had been paid for hours not worked because (T477.19): "… we won't pay a cent until the manager of the night has approved it and then the manager who faxes and sends the originals through has approved it as well. So we had their signatures on the securities card at the time to prove that they were there."

74 Towards the close of evidence in the defendant's case (T631) Mr Anderson called on Mr Joseph to withdraw the tender of Exhibit "4", which Mr Anderson said had been misdescribed as an invoice and ought not have been permitted to be received since it was not in existence at the time of the subpoena (see Eric Redmond T475.40) and was only a reconstruction.

75 Mr Joseph declined to withdraw the tender noting that when Eric Redmond had given evidence about the document (describing it in terms different to that which Mr Joseph had been instructed), no application was then made for the tender to be withdrawn and that there had been no insistence on production of the source documents from Safe & Secure, or more accurately the liquidator of Safe & Secure.

76 Mr Joseph pointed out that Mr Anderson had not challenged the veracity of Eric Redmond's evidence as to how the document had been created, nor the accuracy of what was recorded, nor had he sought leave to have issued a subpoena to the liquidator of Safe & Secure. Further he had not challenged Eric Redmond's assertion that money would not be paid to Safe & Secure unless the manager had approved it.

77 The defendant asserted that there was a fire at Seven Hills, and claims it destroyed the incident book and/or security register and the original records of payment to Safe & Secure. It may seem somewhat convenient that these documents are not available, and yet the documents at pp 11-34 are available, and it raises a suspicion that the defendant has not produced documents for other reasons, but there is no evidence before me that points to Eric Redmond's evidence that there was a fire (corroborated by Jeffrey Redmond) being false. Although there was an attack on their credit on other matters which may have some justification, those matters are limited (eg the explanation of lighting as a reason why no security cameras were in place over the dance floor, the circumstances in which Eric Redmond was understood by police to be the licensee of the tavern, Jeffrey Redmond's assertion that he was never told about an incident at the tavern, and his assertion that Mr Dunning told him not to worry about the POPE conditions), and even if found to be established, do not in my view amount to a discrediting of their testimony such as to warrant rejection of their evidence of the fire and destruction of the documents. The plaintiff did not seek to subpoena documents relating to the fire, such as a police report or insurance claim. Since the defendant did, through the evidence of the Redmonds give evidence of a fire - it was for the plaintiff I think, to seek to establish that the asserted fire was a fiction. Mr Anderson did not put to either Eric Redmond or Jeffrey Redmond that the fire was a fiction.

78 Jeffrey Redmond said at T506.40 that he was not aware that Exhibit "4" had been reconstructed. He said that he was 90-98 per cent certain the incident book had been destroyed in the fire: T515.46-51.

79 From Exhibit "4" it appears that between 8 pm and 10 pm there were two security guards on duty, one of whom it is undisputed was on the King Street door, and that between 10 pm and 10.15 pm there were three security guards on duty, "Langi", "Freddy B" and "Raymond" (see T506.5-14), with Raymond to start at 10 pm. There is nothing to indicate that Raymond did go downstairs or was supposed to go downstairs, or what his duties were supposed to be from 10 pm if he was in fact present at the tavern. Although he does not appear in the footage and hence it would appear that he was not on duty at the entrance or the stairs, it is quite possible that he was supposed to be located as an extra person on the door rather than downstairs.

80 As at the time of the incident (it occurred at approximately 10.03 pm) there was undoubtedly one security guard at the entrance on King St and one guard in the basement. I find on the balance of probabilities that from 7.30 pm until the time of the incident there was only one guard on duty downstairs.

81 There were areas of the dance floor the guard could not see prior to or after the throwing of the glass: see Exhibit "B" as marked by Mr Smith, the plaintiff's expert witness. That marking does not take into account the restrictive effect of the speakers to which I have referred. There is no evidence that the security guard did see the altercation or the lead up to it, and the unchallenged evidence is that he did not attend upon the plaintiff at or near the point of attack. Logically either the guard did see the altercation and failed to attend or did not see it. I think it unlikely that he did see it but did nothing, it being on the balance of probabilities more likely that he did not see it developing. Given that at least part of his time depicted in the footage was spent looking up the stairs, and given that he was the only person on duty downstairs covering the stairs, the bar and the dance floor, that is hardly surprising. The fact that the assailant passed by him close to the bar without the guard stopping him reinforces the likelihood that the security officer did not see the incident. I do not accept Mr Joseph's submission that it can be inferred that the guard "saw some disturbance" and that the plaintiff relevantly was "observable" - all that can be inferred from the video is that the guard became aware somehow of the fact that there had been an incident. The assailant was well away from the position of the altercation when he passed the guard.

82 No documents were produced evidencing or dealing with the relationship between the defendant and Safe & Secure, other than Exhibit "4". No security guard who was present was called nor was any member of the defendant's staff actually present that night called, other than Eric Redmond who attended the premises well after the incident: see T438.25. Mr Anderson points to the failure of the defendant to call evidence from any of these potential witnesses and submitted that a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn. He also made the point that evidence on this topic should be weighed in accordance with the power of the defendant to adduce it: see Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, approved in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371.

83 There are only four items of evidence relevant to the arrangements for security:

(1) the evidence of Jeffrey Redmond as to his arrangements with Safe & Secure;

(2) the evidence of Jeffrey Redmond as to what he had observed on previous occasions;

84 Jeffrey Redmond's evidence in chief on the issue of security in place was as follows. He had been the licensee of the tavern for approximately ten years. He owned four other hotels but was not the licensee of those other hotels: T485. He engaged Safe & Secure in 1997 to be the security contractor. Mr Dunning, the principal of Safe & Secure, held a Master Licence (a requirement for a security provider or the licensee if he is to provide security himself): T485. Jeffrey Redmond obtained a copy of the Master Licence of Mr Dunning (see Exhibit "12"). Jeffrey Redmond said that he displayed the document on his premises: T486.

85 Jeffrey Redmond said he had observed Safe & Secure's security over 13 years (ie even prior to him becoming the licensee). He said he had "ongoing discussion of refinement and requirements" regarding security: T486.40-45. In his evidence at T487.11-T488.36 and T488.46-T490.45, Jeffrey Redmond said that he discussed the type of security he required, told Mr Dunning about the type of clientele (ie 20-40 year olds), the proposed entertainment, that he wanted a female friendly venue and to make sure that males were not "unruly". He would discuss security once fortnightly, at least. He said at T488-T490: "Q. What did you observe in particular, in respect of the security personnel?

A. The security personnel basically provided the atmosphere of security that I was looking for, for our clientele. There's some of those requirements, for example, were more of a deterrent, so that we actually tried to have Mr Dunning provide large security as a deterrent .

A. Physically large. And the process in the formula seemed to be working quite well.

Q. Had you observed the security personnel on the Friday night?

Q. Had you observed them in the - personnel in the period on the Friday night between 8 and 10?

Q. Was it your understanding as at 6 August 2004 that there'd be two security personnel on duty at that time?

A. Oh sorry, 8 to 10pm. The - my understanding was pretty much a staggered security arrangement depending on the crowd build up. The specific number may have changed on special occasions.

Q. But on this night, on 6 August 2004, was it your expectation there'd be two security personnel between 8 and 10pm?

Q. Thereafter, was there going to be further security personnel coming on duty?

A. -- yes, the security industry standard basically provided for one security guard per 100, and that's my understanding.

A. So, one in 100 and at those times, we may have needed the extra security to come onboard.

Q. From your knowledge, what was the patron numbers that's being the 8 to 10 period, as opposed to after 10?

Q. That wasn't my question Mr Redmond. The question was, what was your knowledge of patron numbers between 8 and 10 as opposed to after 10pm?

Q. When you did observe the security personnel on a Friday night, in that period 8 to 10, where were they? Stationed or - what were they doing?

Q. On a Friday night, between 8 and 10pm - I thought I made that clear, had you made observations as to the conduct of the security personnel?

OBJECTION. SHOULD SPECIFY WHICH FRIDAY NIGHT. QUESTION ALLOWED

A. Generally, there would be a doorman at the door. And then we would have --

Q. What do you observe - not we would have? What did you observe?

A. Sorry, sorry. I observed a doorman, and then I observed a security officer moving around the premises.

Q. Can you recall whether he remained stationary for any periods of time?

A. Short period of time, they would take up a particular station, and then rotate."

86 Jeffrey Redmond said that the night manager would report to the day manager and the day manager would report to him "and then I'd communicate any requirements to the contractor, the security contractor … If the particular security personnel, as far as the night manager was concerned, didn't seem suitable for the venue then basically it would be reported. If there were any incident that was worth bringing to my attention then the day manager would report it to me": T490-T491.

87 At T492 Jeffrey Redmond was asked about the POPE licence requirements and said that he had never provided security to the level required by that licence. His evidence was that the premises were attended by personnel from the City of Sydney and the police, and they never raised failure to comply with conditions: T492-T493.

88 He said that he never sought to comply with the conditions (T493.12-16): "After discussions with my security contractor I went by his [advice] insofar as the level of security that we already employed was sufficient and the level of security that was being applied by the Council was not reasonable."

89 He said he was never prosecuted for breach and the failure to comply was never raised even though their attendance was at times when the conditions would apply: T493.44-46.

90 He said that he was never informed by police prior to August 2004 that they thought there "was insufficient level of security": T494.51. At T502.40 in cross examination Mr Anderson asked Jeffrey Redmond if he was saying that he left the decision as to how many security guards were to be employed "entirely to the discretion of 24/7" to which Jeffrey Redmond responded affirmatively.

91 In relation to the conditions imposed by the POPE licence there was the following exchange between Jeffrey Redmond and Mr Anderson at T503.30-T504.38: "Q. What you are saying Mr Dunning said to you, oh no, no, don't worry about providing eight security guards, and paying us for eight security guards, when the Council requires it because really you don't need that many. Is that what you're telling his Honour, happened?

A. My recollection of the conversation was that we only had entertainment three nights a week. They required security seven nights a week. The end result, they require eight security guards per one - per hundred people, where our licence only allowed us up to 290 odd people, so I ended up agreeing with the contractor that it was - the conditions were unreasonable.

Q. Are you telling his Honour that you took the advice of Mr Dunning to employ two or three security guards on a particular Friday night when there was music being played, in lieu of the eight required by the Council. Is that what you just told his Honour?

Q. I suggest to you sir, that ultimately, it was your decision as to how many security personnel would be provided by the company, correct? That is, ultimately you would instruct Mr Dunning how many you were prepared to employ at that particular time, correct?

Q. I'm suggesting to you that it was ultimately your decision as to how many security personnel would be provided by Mr Dunning at the premises at any particular time, correct?

A. I would rely on Mr Dunning's advice, and then ultimately approve his advice .

Q. Are you telling his Honour, on oath, that Mr Dunning said to you, look Council's issued this licence, but take it from me, you can ignore that because it's really excessive. Is that what you're saying?

Perkins v Redmond Company Pty Ltd

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