Plaintiff v First Defendant

1 The plaintiff was born in Iraq on 5 April 1990. He and his family are of the Assyrian Christian Orthodox faith.

2 The family fled to Jordan and resided there for six years. In 2003, they arrived in Australia as refugees. The plaintiff was then 13 years of age.

3 Shortly after arriving in Australia, the plaintiff's father had a fall which left him disabled. The plaintiff gave evidence that, for many years, he has acted as his father's carer. The plaintiff's father was said to be 80 years of age.[1]

4 The plaintiff gave evidence that he was fit and active in his youth. He played in a soccer team with the first defendant, Jamal Younan ('Jamal'), and, throughout his evidence, sought to emphasise that they 'never had problems'.[2]

5 The plaintiff completed schooling to year 11. He said that he 'didn't think the school was a thing for me'.[3] After school, he had periods of employment in security work, picking and packing, and truck driving.[4]

6 The plaintiff has a significant history of criminal offending, particularly between 2009 and about 2015.[5] He became involved with 'criminal gangs', did 'stupid stuff' and used the drug 'ice'.[6]

7 In that general connection, the plaintiff served a 12-month sentence of imprisonment at Fulham Correctional Centre in Sale and also spent about six months at the Melbourne Remand Centre. He gave evidence that, during the latter period, he received drug rehabilitation counselling and became 'ice free'.[7]

8 The plaintiff met his now wife in 2015 and they married in 2023.[8]

9 On the evening of 6 December 2019, the plaintiff attended a concert by a Lebanese singer held in the 'Oasis room' of the La Mirage Reception and Convention Centre, a function centre in Somerton. The function centre seems to have had several rooms for entertainment, including the 'Oasis room'.

10 The plaintiff had attended the function centre previously and said that he knew 'most of the staff', including the manager, Sami Younan ('Sami'), the 'head of security', Naje Koru ('Naje'), and 'the other security guy', Floran Hanna ('Floran').[9]

11 The second defendant was the tenant and occupier of the function centre.[10] It also held the liquor licence.

12 The third defendant was the owner of the function centre.[11] The third defendant denied that it employed or engaged any 'servants, agents or representatives' at the function centre.[12]

13 The plaintiff attended the concert in the company of David Elley ('Elley') and Adaay Kakoz ('Kakoz'), who were then his friends.[13]

14 At trial, there was a degree of dispute concerning the events on the night. Consequently, without indicating that any of the following facts and circumstances should be considered to have been finally found, it is presently sufficient to state that -

(a) the concert took place in the 'Oasis room';

(b) several hundred people attended the concert, which was a ticketed and seated event;

(c) guests entered via the foyer to the 'Oasis room';

(d) on entry, among other things, guests were scanned by security guards using a wand;

(e) Sami attended the concert, as did Jamal;[14]

(f) Sami's son, Leonardo Younan ('Leo'), said that he was the floor manager on the night;[15]

(g) hospitality and other staff seem to have been employed on the night by the second defendant;

(h) the concert ended at about 1am on 7 December 2019;

(i) prior to 1am, 16 security guards were in attendance, 12 of whom were provided by the promoter;

(j) the other four security guards were Naje, Floran, Sabah Younan ('Sabah') and Raad Hanna ('Raad');

(k) at 1:00am, Naje signed off and, at another point, the 12 crowd controllers provided by the promoter departed,[16] leaving three security guards on duty thereafter - Floran, Sabah and Raad;[17]

(l) a disagreement arose between at least Sami, on the one hand, and at least Elley and Kakoz, on the other, concerning the payment of 'corkage charges' ('Corkage dispute'). The Corkage dispute commenced as a discussion held on the forecourt outside the door to the foyer of the 'Oasis room' and later moved inside the foyer where it escalated and Elley and/or Kakoz struck Jamal.[18] Elley and Kakoz were then ejected from the foyer onto the forecourt;

(m) shortly thereafter, Elley and Kakoz got into a vehicle driven by the plaintiff, who commenced to drive away. At about the point at which the vehicle reached the gate at the exit of the car park of the function centre, Elley and/or Kakoz instructed the plaintiff to stop the car, and Elley and Kakoz got out and returned to the foyer on foot;

(n) approximately 7½ minutes elapsed between Elley and Kakoz being ejected from the foyer and then subsequently re-entering;[19]

(o) the plaintiff parked the vehicle in the car park and got out, at which point he could hear screams and ran into the foyer about 18 seconds after Elley and Kakoz;

(p) during a period of a bit more than a minute, a very violent brawl unfolded ('Brawl');

(q) for his part, the plaintiff was present during the Brawl for an initial period of about 48 seconds before he exited the foyer onto the forecourt, and then re-entered the Brawl for a subsequent period of 10 or 11 seconds;

(r) during the Brawl, Jamal used a very large kitchen knife to stab, in no particular order, Elley, the plaintiff and Kakoz; and

(s) the plaintiff suffered injuries to his abdomen and left wrist, and was later hospitalised.

15 Parts of the Brawl were captured on three videos, seemingly taken using different mobile phones. In that regard -

(a) two videos were recorded from inside the foyer - during the trial, those videos were referred to as the 'one second video' ('One second video')[20] and the '47 second video' ('47 second video') respectively;[21] and

(b) a third video was taken looking across the forecourt and through the glass front door and associated windows into the foyer - during the trial, that video was referred to as the '54 second video' ('54 second video').[22]

16 In addition, CCTV footage of 17 minutes and 14 seconds in length was taken from a camera positioned roughly above the foyer door and looking outwards across the forecourt to the car park. During the trial, the CCTV footage was referred to as 'camera 16' ('Camera 16 footage').[23]

17 The Camera 16 footage does not show the foyer door directly. For the most part, the car park is in darkness, although, at various points, vehicles can be seen moving about.

18 The Camera 16 footage commences prior to the Corkage dispute and extends to a point after the Brawl. Among other things, the Camera 16 footage shows -

(a) Elley and Kakoz in discussion with Sami during the initial phase of the Corkage dispute and prior to the escalation of that dispute (which occurred inside the foyer and therefore out of the view of the Camera 16 footage);

(b) Elley and Kakoz each being ejected by security guards onto the forecourt after the Corkage dispute;

(c) the plaintiff departing the foyer and leaving, generally speaking, in the company of Elley and Kakoz;

(d) Elley and Kakoz later returning to the forecourt where they are approached by Sabah and another man;

(e) Elley and Kakoz getting past the men, including Sabah, and, by inference, re-entering the foyer;

(f) a matter of seconds thereafter, the plaintiff sprinting from the car park across the forecourt towards the foyer door and, by inference, re-entering the foyer; and

(g) subsequently, at different points, all three men re-emerging onto the forecourt, injured, and ultimately departing into the car park after Kakoz has retrieved a large metal stake and used it to smash at the glass of the foyer door and/or associated windows.

19 The three mobile phone videos are not timestamped and it was common ground that neither of the two different forms of timing shown in the Camera 16 footage accurately reflects the time at which the various events occurred.[24] It follows that the precise time at which the various events occurred cannot be identified by direct reference to the videos and Camera 16 footage.

20 The incident in which the plaintiff was stabbed by Jamal is shown during the

47 second video. That and all other aspects of the violence shown in the various videos and Camera 16 footage is shocking. Among other things, there is a considerable amount of blood.

21 At trial, the plaintiff claimed against the second and third defendants in negligence and breach of duty pursuant to s 14B of the Wrongs Act 1958 (Vic) ('Wrongs Act').[25]

22 Among various notions that featured in the plaintiff's claims and evidence, the written outline of closing submissions filed and served on his behalf ('plaintiff's outline of closing submissions') submitted as follows -

... the Plaintiff's actions during the 47 second video are consistent with his evidence that at no point during the second fight [ie, the Brawl] was he involved in fighting but rather was attempting to calm the situation, including to convince JY [Jamal] to put down the knife.[26]

23 In short, the plaintiff sought to portray himself as the innocent victim of a stabbing by Jamal that, he contended, would have been avoided but for the claimed negligence and/or breach of duty of the second and/or third defendants.

24 On 10 August 2021, the plaintiff commenced proceedings against -

(a) Jamal, as first defendant;

(b) Jo-Yo Nominees Pty Ltd trading as La Mirage Reception and Convention Centre, as second defendant; and

(c) Genesis International (Aust) Pty Ltd, as third defendant.[27]

25 In early 2022, Elley and Kakoz each commenced proceedings substantially similar to those commenced by the plaintiff.[28]

26 On 21 June 2023, Jamal commenced a counterclaim against the plaintiff and second defendant.

27 On 7 February 2024, the second and third defendants each commenced a contribution claim against Jamal.

28 On 15 October 2024, a combined trial of all three proceedings - limited to the issue of liability - was ordered to be heard as a cause.[29]

29 Shortly prior to the commencement of the trial, orders were made by consent -

(a) dismissing the claims made as between the plaintiff and Jamal; and

(b) dismissing the claims by and against Elley and Kakoz respectively.

30 Consequently, the trial commenced on 22 October 2024 initially as between -

(a) the plaintiff and the second and third defendants; and

(b) Jamal and the second and third defendants, including the contribution proceedings.

31 At the commencement of the trial, among other things, the second and third defendants sought leave to amend their defences.

32 In particular respects, those applications were opposed by the plaintiff and Jamal. A significant basis for the opposition was said to be -

... the suggestion on effectively the first day of this trial, that there's another potential party, Mr Koru [ie, Naje], who's responsible for the provision of security at this La Mirage Reception Centre on the night in question.[30]

33 The second and third defendants were each granted leave to amend for reasons given orally, including that 'the allegations in respect of security ... [were] not truly fresh'.

34 The plaintiff and Jamal then applied for an adjournment of the trial, essentially with reference to the basis rejected in the course of determining the earlier applications for leave to amend. The adjournment application was rejected for reasons also delivered orally.

35 Thereafter, senior counsel for the plaintiff applied for leave to short serve subpoenas to give evidence addressed to Naje and Floran respectively. That application was not opposed and leave was granted.[31]

36 After the lunch adjournment on the first day of the trial, I was informed that the proceedings between Jamal and the second and third defendants, including the contribution proceedings brought against Jamal by the second and third defendants, had resolved. By consent, an order was made dismissing those proceedings.[32]

37 It follows that from that point, and prior to the commencement of any evidence, the only claims that came to be pursued at trial were those made by the plaintiff against the second and third defendants. For simplicity, where reference is subsequently made to 'the defendants', that should be taken to refer to the second and third defendants.

38 The plaintiff's pleading casts an exceptionally wide net. Among other things, as against the second defendant, the particulars of 'negligence and/or breach of duty' include -

(a) Failure to take any, or adequate steps, to protect the Plaintiff from assault and/or stabbing at the premises by Jamal Younan.

(f) Enabling and/or allowing David Elley and/or Adaay Kakoz to re-enter the premises after being evicted.

(g) Failing to provide front doors that could be locked and/or remain locked to keep evicted patrons from re-entering the premises.

(i) Failing to have an adequate number of security guards in the circumstances;

(l) Failing to call the police after the Second Defendant had evicted David Elley and/or Adaay Kakoz for the first time on the 7th of December 2019.

(p) Failure to employ appropriately trained and/or the appropriate number of crowd controllers at the premises.

(r) Failed to institute any, or any adequate, system of ejecting patrons from the premises.

(s) Failing to undertake a hazard and risk identification and/or security risk assessment for the event on the 6th of December 2019.

(t) Failing to have any or any adequate security plan and/or operating procedure.

(u) Failing to have any or any adequate instructions, protocols, or system of work for staff in the event of a violent or potentially violent incident.

(cc) Failing to ensure the premises had proper and appropriate security on 6 December 2019 given that the Second and/or Third Defendant knew or ought to have known of the potential for intoxicated and/or aggressive patrons.

39 Most of the above particulars were also relied upon against the third defendant.

(a) during the trial, the plaintiff gave evidence and called Naje and Floran (each in answer to subpoena) as well as Dr Tony Zalewski, an expert in security systems;

(b) for their part, the defendants called Sami, Leo and Peter Smith, also an expert in security systems; and

(c) without seeking to be in any way critical of counsel for the plaintiff, the emphasis in the plaintiff's liability case tended to shift around and little, if any, specific mention was made of the pleaded particulars.

(a) during the evidence of Naje and Floran, it seemed that it would come to be submitted that each was an employee of the second defendant - however, no such submission was ultimately advanced;

(b) much of the trial was conducted on the basis that the concert finished at about 1am, the Corkage dispute occurred shortly after 1:30am and the Brawl occurred at about 1:40 or 1:45am.[33] However, in the plaintiff's outline of closing submissions, no precise time was given for the conclusion of the concert, and the plaintiff contended that the 'best evidence' was that the Corkage dispute occurred 'around 1:15 to 1:20 am' and that the Brawl commenced 'between around 1:20 and 1:25 am';[34]

(c) that said, the precise submission sought to be advanced was, perhaps, a little obscure, as it was also said that the Corkage dispute occurred at 'around 1:15 pm [sic: am]',[35] there was 'approximately 7 minutes and 34 seconds between the two fights',[36] and that the plaintiff was stabbed 'at approximately 1:20 am';[37]

(d) the plaintiff came to contend that the 'availability of security' at the time of the Corkage dispute and Brawl was a 'significant issue',[38] and, in oral closing address, flirted with a rather undeveloped submission to the effect that the

12 security guards provided by the promoter could have been present and available if required.[39] However, no such suggestion had been relevantly pursued in evidence[40] and, in any event, other parts of the plaintiff's outline of closing submissions seemed to accept that no such security personnel appear in the Camera 16 footage and that, at the relevant times, 'there were just three security guards on duty';[41]

(e) perhaps in respect of the same issue, in closing argument, the plaintiff contended that the Corkage dispute put the defendants 'on notice' of a risk of violence such that 'greater numbers' of security personnel ought to have been retained.[42] However, as I have indicated, during the evidence there had been essentially no relevant or detailed investigation of the question whether further, and if so how many, such personnel could have been available to be retained at the relevant times;

(f) separately, in the plaintiff's outline of closing submissions, he appeared to contend that the defendants had negligently failed to 'ensure that Kakoz and Elley' had been 'entirely evicted' from the 'premises' after the Corkage dispute.[43] It is not entirely clear what was there sought to be suggested - although the submission might have been based in evidence given by the plaintiff that Elley and Kakoz had alighted from the vehicle 'just before we got to the main gate of the entrance of the car park'.[44] However, any such a submission would give a very strained meaning to the expression 'premises' in circumstances in which -

(i) the plaintiff's pleading defined 'the premises' as being 'the La Mirage Reception and Convention Centre at 210 Hume Highway, Somerton'[45] - which, without further specification, would ordinarily be understood to direct attention to the function centre itself, as opposed to its car park;

(ii) in that connection, the plaintiff was, of course, stabbed inside the function centre and none of the particulars of 'negligence and/or breach of duty' referred to or directed specific attention to the car park;[46]

(iii) consistently with that understanding of the pleading, the proceeding had implicitly been conducted on the basis that the relevant 'premises' were the 'Oasis room' and its adjacent foyer;

(iv) all of the evidence showed that Kakoz and Elley had been 'removed forcibly' from those premises (particularly, the foyer) after the Corkage dispute;

(v) during the trial, no evidence had been directed to establishing that any particular person could be said to have been at fault for failing to 'ensure' that Kakoz and Elley (and the plaintiff) had subsequently also been 'evicted' from the car park; and

(vi) in any event, in the circumstances, it is not obvious that there could be any material difference between Elley and Kakoz having alighted from the vehicle 'just before' the main gate or just after it (in the latter instance, of course, Elley and Kakoz would have been, technically, outside of the so-called 'premises');

(g) during the evidence, relatively little investigation was undertaken of the precise circumstances in which Elley and Kakoz (and, a matter of seconds later, the plaintiff) re-entered the foyer of the 'Oasis room' immediately prior to the Brawl, other than to seek to establish that they had entered via a door that was 'broken' or 'not operating correctly'. In that regard, there was little or no investigation of precisely who and what security or other personnel and equipment was or was not proximate to the door at the relevant time. Nonetheless, in the plaintiff's outline of closing submissions, and with reference to a statement made by Sami to police in the early hours of the morning after the incidents,[47] the plaintiff appeared to contend that the door had been 'inadequately stationed by security such that the perpetrators were allowed in by a guest'.[48] However -

(i) that part of Sami's statement in fact reads -

David [Elley] and Adai [Kakoz] left and we were talking like why they came. We shut the door behind them. About 5-10 minutes later they came back in a group of 4-5 people. They knocked on the door and some one opened it, one of the guests I think.[49]

(ii) somewhat differently, in evidence-in-chief, Sami said that Elley and Kakoz had returned and punched the glass of the door 'forcing to get in';[50]

(iii) in cross-examination, Sami was taken to the relevant part of the statement and said -

I wasn't sure who opened the door but for me, because on that time there is a few walking out, so maybe they left it open or it had been locked, but I'm sure the security of my (indistinct) someone else. But that door was forced to get up, and that's why it closes manually, and the sensor won't be open.[51]

(iv) it will be apparent that that Sami's answer was, in part, directed to the suggestion - made a short time earlier, and denied - that the door was 'broken';[52]

(v) immediately after the answer to which I have referred, the cross-examiner further pursued the contention that 'the door wasn't operating correctly';[53]

(vi) it follows that there was no precise investigation during that or any other part of Sami's evidence (or, seemingly, that of any other witness called), of who and what was on the other side of the foyer door, and whether, in the circumstances, the re-entry of Elley and Kakoz could realistically have been facilitated by a guest and also the 'fault' of any security guard 'stationed' or not 'stationed' at the door;

(vii) in that general connection, in oral evidence given the previous sitting day, Dr Zalewski had been directed to the proposition that, among other 'factors', there had been a 'non-operating door', and in respect of the 'appropriateness of the measures' taken, said -

... it's indicative of a lack of planning and preparation. And, you know, as I've said earlier, good systems of security are all about being proactive, risk avoidance, rather than reactive. And certainly if there'd been an adequate risk assessment, if there'd been adequate protocols developed based upon the risk assessment, all of these things, such as checking doors to make sure they're working, allocating who would go to that door and control the door so they knew how to operate it, checking of CCTV cameras to ensure they're working, ensuring that adequate signage is around, ensuring adequate lighting was available outside the premises as well, allocating who might be monitoring the car park as opposed to the forecourt as opposed to the foyer, just within the door where the serious assault occurred. So all of these things should be part of the planning and setting up of the system.[54]

(viii) shortly thereafter, Dr Zalewski elaborated in respect of the circumstances on the night and said -

... even though it might be justified to reduce 16 [security guards] down to whatever number in the circumstances, the realities are three would never meet the need because, effectively, you've got to control the door and control people who were, you know, confrontationist, and you don't know who else is involved. So three could never be enough.

...

I don't necessarily concur that it should be 16, you know, the four in-house and the other 12. But certainly three would not have been enough to control just that small area that's under the CCTV vision that we've all seen. So, you know, I would think - and I mean, I'd be guessing, but I would guess it would be something north of six or seven until the last person leaves.[55]

(ix) in that evidence, of course, Dr Zalewski was not asked to and did not comment upon any proposition that Elley and Kakoz had been let into the foyer by a guest, and whether the 'stationing' of security guards at the door at the time at which Elley and Kakoz re-entered the foyer might consequently be said to have been in some way 'inadequate'; and

(x) further, Dr Zalewski was not asked to and did not give any specific evidence concerning precisely how many security guards, in his opinion, should reasonably have been 'stationed' at the door at the time at which Elley and Kakoz re-entered, and whether that number of guards would have been sufficient to restrain the 'guest', or Elley and Kakoz, in circumstances in which Elley, in particular, seems to have been armed with an extendable baton and it was broadly common ground that any and all security guards would have been unarmed;

(h) similarly, in the plaintiff's outline of closing submissions, he contended that the 'supervision' of the three guards on duty had been 'less than adequate'.[56] However -

(i) during the evidence, there was nothing in the way of specific criticism of the actions of any of the three security guards on duty at the time[57] (including Floran, who, of course, was called as a witness by the plaintiff and had given evidence-in-chief that 'we' - meaning the security guards - had tried 'as much as we can ... to not let people in because of that first fight' and that they had also tried to stop the fight 'but we couldn't'[58]); and

(ii) neither in the plaintiff's outline of closing submissions nor elsewhere did the plaintiff identify, with any precision, the substance of the claimed inadequacy (or inadequacies) of any of the guards; and

(i) finally, a contention that the defendants had negligently failed to call police after the Corkage dispute provoked investigations during oral evidence, including during the evidence of Dr Zalewski and Mr Smith, but that contention was ultimately not developed or perhaps even pursued in any of the plaintiff's closing submissions.[59]

42 Notwithstanding the above, it was clear enough in the plaintiff's outline of closing submissions, as well as the subsequent closing address of the plaintiff's senior counsel,[60] that -

(a) broadly speaking, submissions were being advanced -

(i) as to the credit and reliability of various witnesses;

(ii) that certain factual findings should be made; and

(iii) that the liability of one or both defendants should follow; and

(b) upon such findings, the defences relied upon by the defendants should also fail.

43 For their part, the defendants took issue with various factual contentions pressed by the plaintiff and also took aim at the credibility and reliability of the plaintiff and his witnesses, including Dr Zalewski.

44 In that regard, in a written outline of closing submissions ('defendants' outline of closing submissions'), the defendants contended that -

(a) in respect of the second defendant, the risk of injury to the plaintiff in a violent confrontation was not reasonably foreseeable;[61]

(b) the third defendant was 'effectively an absentee landlord';[62]

(c) in any event, there was no material breach of any duty owed;[63]

(d) in particular -

(i) it had been 'entirely reasonable ... to have three security guards ... at the [p]remises after 1:30am';[64]

(ii) even if the front door of the 'Oasis room' had been unlocked or broken, there was no unreasonableness, as it had not been expected that Elley, Kakoz and the plaintiff would return after driving away;[65]

(iii) during the Brawl, the plaintiff had been 'throwing punches at Sami';[66]

(iv) the evidence of Mr Smith should be preferred over that of Dr Zalewski;[67]

(v) the fact that there had been no written security plan was 'of no causal relevance';[68]

(vi) Sami and Leo had given evidence 'in a credible and straightforward manner';[69]

(vii) by contrast, Floran was 'not a credible witness',[70] Naje's answers had been 'evasive, and frequently non-responsive'[71] and the plaintiff had not been 'a credible witness';[72] and

(viii) sections 14G(2) and 14B(4)(fb) of the Wrongs Act direct the Court to consider whether the plaintiff was engaged in an ' illegal activity' and, in the present instance, the plaintiff was illegally trespassing and involved in 'physical assault and affray';[73]

(e) the 'but-for' test of causation was not satisfied;[74]

(f) in any event, the 'chain of causation' was broken by the plaintiff 'voluntarily walking towards Jamal when he was wielding the knife';[75]

(g) the defence of volenti non fit injuria is modified by ss 53 and 54 of the Wrongs Act and, in the present circumstances, various 'risk[s] of injury' would have been obvious to a person in the position of the plaintiff;[76]

(h) section 55 of the Wrongs Act provides that a person is not liable in negligence for harm suffered by another as a result of the materialisation of an 'inherent risk' and, in the present instance, the 'inherent risk of staying near someone wielding a knife' materialised;[77] and

(i) the plaintiff had 'freely and knowingly placed himself in a very dangerous situation' such that a finding of contributory negligence of '80 to 90%, or even up to 100%' would be appropriate in the event that the second and/or third defendants were found to be liable.[78]

45 In oral closing address, senior counsel for the defendants addressed several submissions made in the plaintiff's outline of closing submissions and otherwise replied to the closing oral submissions of senior counsel for the plaintiff.[79]

46 For completeness, I should note that each side advanced several more minor submissions, including -

(a) duelling contentions that the failure of the other to call identified persons to give evidence warranted the drawing of adverse inferences;[80] and

(b) a contention by the plaintiff that the defendants breached the rule in Browne v Dunn.[81]

47 In my view, little need be said about the further and more minor submissions as there is nothing of any real substance in any of them. Among other things -

(a) none of the identified persons seem to have been in the 'camp' of the relevant side;[82] and

(b) while the evidence given by Leo concerning, in general terms, a 'shared responsibility' for security,[83] was not put in precise detail to Naje, it was suggested to Naje that an aspect of discussions on the night had been raised with him by Sami or Leo, part of which he denied,[84] and it was nonetheless clear enough, in the relevant cross-examination of both Naje and Floran, that their evidence on the topic was not accepted by the defendants.[85] In all of the circumstances, there was no unfairness or injustice.

48 It will be evident that the plaintiff's claims, as well as several of the defences relied upon by the defendants, are based in or affected by certain provisions of the Wrongs Act, including -

14B Liability of occupiers

...

(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

(4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to -

(a) the gravity and likelihood of the probable injury;

(b) the circumstances of the entry onto the premises;

(c) the nature of the premises;

(d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;

(e) the age of the person entering the premises;

(f) the ability of the person entering the premises to appreciate the danger;

(fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;

(fb) whether the person entering the premises is engaged in an illegal activity;

(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

14G Consideration of intoxication and illegal activity

(1) This section applies to a claim for damages in respect of death or personal injury brought by a person (the plaintiff) against another person (the defendant) alleging negligence.

(2) In determining whether the plaintiff has established a breach of the duty of care owed by the defendant, the court must consider, among other things -

(a) whether the plaintiff was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;

(b) whether the plaintiff was engaged in an illegal activity.[86]

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

...

53 Meaning of obvious risk

(1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

(1) If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk.

(2) Subsection (1) does not apply to -

(a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or

(b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another.

(3) Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2).

55 No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

...

62 Standard of care for contributory negligence

(1) The 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.

(2) For that purpose -

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

63 Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

49 I have earlier referred to aspects of the plaintiff's evidence concerning his background and upbringing. Part of that evidence concerned his level of education, work history and history of criminal offending and incarceration.

50 In respect of the latter, in particular, the plaintiff gave evidence-in-chief that he had become involved in criminal gangs from 'about 2013' and was incarcerated at Sale and then on remand at Melbourne Remand Centre before becoming 'ice free' from '2014 until this day'. In that connection, he said -

... since 2014 I completely changed after I seen [a drug counsellor] and all the drug counselling and stuff, but since I met [his now wife] from 2015 ... I was still ... no trouble, no nothing until 2017 we got together, and then she started telling me things working together as in into the right path. And since then it's been nothing but good, me and her.[87]

51 The plaintiff then gave evidence concerning the care given by him to his family, as well as the family's attendance at church '[e]very week'.[88]

52 Later, the plaintiff gave evidence-in-chief that -

(a) he had not been involved in the Corkage dispute, as he had been in the bathroom, then saw Elley, Kakoz and Sami 'talking' in the foyer, following which he 'walked straight out [of the foyer]';[89]

(b) he did not know that Elley and Kakoz had been escorted from the foyer;[90]

(c) he had driven Elley and Kakoz away, but just before the car got to the main gate, Elley had asked him to stop, although the plaintiff 'didn't ask why', and Elley and Kakoz then got out;

(d) Elley and Kakoz had 'walked' from the vehicle 'normally' and the plaintiff had not seen 'any aggression, nothing';[91]

(e) he had parked the vehicle in the car park and got out and was 'walking' when he heard screaming and then 'ran in just to see what was happening and then - so I can take the boys and leave';[92]

(f) there were people coming and going through the foyer door when he 'went through', and no effort had been made to 'restrict people still entering the premises';[93]

(g) once he was inside the foyer -

... I've seen there was a couple of people on top of David Elley. He was on the floor. And I just managed to get there and just pull one of them off David and then that's when, I think, Adaay [Kakoz] and Jamal started on the right-hand side and then I just tried to get in between and say like 'stop fighting' and I think after that, that's when I was stabbed ...[94]

(h) he 'did not get involved' in any physical altercation and 'did not lay one hand on nobody';[95]

(i) indeed, he sought to confirm that he had tried to break up the fight that he had come across;[96] and

(j) he had been stabbed by Jamal '[f]or no reason whatsoever'.[97]

53 In the course of his evidence-in-chief, the plaintiff was taken to parts of the 47 second video, the Camera 16 footage and the 54 second video.

54 It will be evident that the general import of the plaintiff's evidence-in-chief was that -

(a) he had completely changed since 2014;

(b) he played no part in the shocking violence ignited and pursued by his then friends, Elley and Kakoz;[98]

(c) he should be understood to have played an entirely peaceful role, especially during the Brawl; and

(d) he had been stabbed for 'no reason whatsoever'.[99]

55 That narrative was broadly challenged in cross-examination, albeit that the plaintiff sought to adhere to it. That said -

(a) the plaintiff was taken to a history given by him to Dr Epstein in which he had suggested that he was outside the foyer with a friend having a cigarette and unaware that a fight had broken out (ie, the escalated Corkage dispute). The plaintiff acknowledged the history given, but proffered the following purported explanation -

... I was on medication at the same time, so I don't remember sometimes what ... I say and what not.[100]

I couldn't remember everything. And then half of the things that I remembered was after seeing him on the footage that we just watched today.[101]

(c) the plaintiff then agreed that he did not tell Dr Epstein about having been in the bathroom at the time of the Corkage dispute, and later said that he had not thought that it was relevant;[102]

(d) the plaintiff confirmed that after he had been released from hospital he had watched the mobile phone videos and, perhaps, the Camera 16 footage;[103]

(e) he had not watched the Camera 16 footage with his lawyers, although a member of his legal team had told him that it showed him going into the foyer and leaving again during the period of the Corkage dispute;[104]

(f) in that connection, he said that he had not remembered going to the bathroom 'until I seen the video'. When it was suggested that he had made that part of the story up, he said -

... I've forgotten, maybe I've forgotten a lot of things, but I haven't been lying about anything.[105]

(g) the plaintiff then suggested that he had forgotten that detail because '[t]here was too much going on', although he was unable to say when he first remembered it, and later said that he had not given the detail to his solicitors because he 'didn't think it was relevant to say anything';[106] and

(h) the plaintiff then confirmed that had not done 'anything' between leaving the bathroom and getting into the vehicle with Elley and Kakoz.[107]

56 The plaintiff was then taken to parts of the Camera 16 footage corresponding with the period of the Corkage dispute.[108] In that regard -

(a) the plaintiff is shown as likely entering the foyer at the point at which the escalated Corkage dispute must have been unfolding (5.04), and to have been inside the premises shortly prior to the ejection of Kakoz (5.32) and then Elley (5.56), before himself exiting onto the forecourt (6.21);

(b) the plaintiff is then shown to approach a group of men, including at least Elley (6.35), and to be beside Kakoz while the latter lurches back towards the foyer door and is then shepherded away (7.12);

(c) the plaintiff is then shown to be behind a group of men, including Kakoz, while the latter is moving off in the direction of the carpark (7.18);

(d) in light of the above, the plaintiff was essentially forced to acknowledge that he had not gone to the bathroom and then come out and gone straight to the car;[109]

(e) that said, the plaintiff denied that, after the Corkage dispute, Floran had told him to leave;[110] and

(f) the plaintiff continued to assert that he had -

(i) not joined 'anyone';

(ii) kept his 'distance';

(iii) not seen any 'physical fight';

(iv) thought that whatever had happened 'wasn't something serious'; and

(v) not asked Elley and Kakoz why they wanted to get out of the car and go back into the function centre.[111]

57 Later, the plaintiff was taken to parts of the Camera 16 footage corresponding with the period of the Brawl. In that regard -

(a) even though he acknowledged that he had parked the car close to the forecourt, the plaintiff said that he had not seen Sabah attempting to restrain Elley and Kakoz from re-entering the foyer (12.56);[112] and

(b) even though he is seen to sprint across the forecourt (13.21) a matter of seconds after Elley and Kakoz seem to have re-entered the foyer (13.03 and 13.05 respectively), and said that he had been able to hear screaming,[113] the plaintiff said that he 'did not know there was a fight', 'did not know there was going to be a fight'[114] and that he had 'walked in' to the foyer.[115]

(a) at no point in the relevant part of the Camera 16 footage is the plaintiff shown to be 'walking' across the forecourt;

(b) further, while he is sprinting across the forecourt the plaintiff's shirt appears appropriately buttoned (13.23);

(c) the 54 second video[116] shows that the foyer door towards which the plaintiff was sprinting is actually two glass sliding doors with further windows above and on either side - accordingly, it is hardly likely that while the plaintiff was sprinting across the forecourt towards the foyer door, he could not see and did not know that there was already or was going to be a fight; and

(d) at that point, Elley and Kakoz were very likely immediately inside the foyer door in the midst of a violent altercation.

59 In any event, in cross-examination, the plaintiff again confirmed that when he entered the foyer -

(a) he saw Elley on the floor at the entry with a 'group of people' on top of him; and

(b) he pulled a person off Elley which, he said, was 'the only time I laid my hand on anybody'.[117]

60 At that point, the plaintiff was shown the One second video,[118] which he had not been shown in evidence-in-chief, and which he later confirmed that he had not previously seen. The plaintiff said that he could not recall the incident shown.[119]

61 While obviously brief, the One second video reveals a confrontation taking place immediately inside the foyer door. Among other things -

(a) the participants, in various roles, include Sami, Leo, Kakoz, the plaintiff, Floran, Sabah, Naje and Elley;

(b) Sami is splayed on the floor underneath a round table bearing a floral arrangement a short distance inside the foyer door;

(c) Leo is standing slightly in front of Sami;

(d) the plaintiff and Kakoz are standing roughly alongside each other, about a metre or so apart and each facing Leo;

(e) the plaintiff appears to be closer to Leo than Kakoz;

(f) Sabah appears to be trying to intervene between Leo and the plaintiff;

(g) Leo appears to strike the plaintiff in the face over the outstretched arm of Sabah;

(h) at roughly the same time, Kakoz appears to strike out towards Leo - but the latter is out of reach and Kakoz does not make contact;

(i) Floran is shown behind the plaintiff and to the right, but facing the action;

(j) Naje is shown passing behind Floran, facing the action, but heading towards the foyer door; and

(k) Elley is shown behind Naje, close to the wall inside the foyer door and probably involved in a scuffle with another man.

62 It was not ultimately in dispute that the events shown in the One second video must have occurred in the first few seconds after the plaintiff entered the foyer.[120]

(a) the Camera 16 footage appears to show the plaintiff running into the foyer at about 13.23, which is approximately nine seconds before Naje appears to walk out of the foyer door and onto the forecourt (13.32);

(b) the One second video shows Naje in the foyer passing behind Floran, heading towards the foyer door;

(c) accordingly, the incidents shown in the One second video are likely to correspond with about 13.30-13.31 on the Camera 16 footage;

(d) it follows that the One second video shows the plaintiff in the centre of a physical confrontation immediately inside the foyer door about 7 or 8 seconds after he ran in;

(e) the 47 second video shows a different part of the foyer, and commences with a confrontation or standoff developing between Jamal (who is brandishing the bloodstained knife) and Kakoz and the plaintiff (0.00);

(f) at about 0.12, the 47 second video shows the plaintiff being stabbed by Jamal;

(g) at about 0.17, the 47 second video shows Kakoz being bundled out the foyer door onto the forecourt;

(h) the Camera 16 footage shows the same event at about 14.00;

(i) accordingly, the very first part of the confrontation or standoff between Jamal and Kakoz and the plaintiff shown in the 47 second video (0.00) must correspond with about 13.43 on the Camera 16 footage;[121] and

(j) it follows that the first part of the confrontation or standoff between Jamal, Kakoz and the plaintiff occurred -

(i) about 13 seconds after the events shown in the One second video; and

(ii) about 20 seconds after the plaintiff ran into the foyer.

64 In light of the above, while the periods involved are short, and the incidents involved are highly dramatic and intense, the plaintiff is shown to be involved in two different confrontations in two different parts of the foyer within a period of about 20 seconds after he ran in.

65 Further, the arrangement of the plaintiff's shirt between the point at which he ran into the foyer (Camera 16 footage at 13.23) and 13 seconds later when he is shown in the confrontation with Jamal (47 second video at 0.00) is strikingly different. The difference strongly suggests that the plaintiff was involved in some form of violence in the intervening period which, of course, includes the incident shown in the

One second video in which, at the very least, he appears to be shown being struck in the face by Leo.

66 In respect of the subsequent confrontation or standoff with Jamal, of course, the plaintiff said that he had been asking Jamal to drop the knife 'to stop this from hurting anybody'[122] and had earlier said that he was stabbed '[f]or no reason whatsoever'.

67 As to his entreaties to Jamal, however, the cross-examiner suggested that the plaintiff had said to Jamal '[l]et's go outside and fight, man to man', which he initially denied. However, shortly thereafter he said -

... I could have possibly said that - at least for him to drop off the knife, and fight with them outside, not me, ... fist to fist, so nobody gets hurt.[123]

68 Shortly thereafter, the possibility resolved into an implicit concession, albeit one in which the plaintiff sought to exclude himself from any suggestion of a fight 'fist to fist' -

I said to Jamal multiple times, "Drop the knife, there's no need for that." It wasn't working. And then I said, "Drop the knife and fight like a man outside with them." Not with me - with them. If it was like that, no-one would have got hurt.[124]

69 In respect of the confrontation with Jamal, the 47 second video initially shows the plaintiff adjacent to the end of a long table to the inside right of the foyer door (0.00).[125] At that point, Kakoz is facing off against Jamal, who is waving the bloodstained knife.

70 Nonetheless, the plaintiff moves between Kakoz and Jamal (0.01). Behind the plaintiff, Kakoz removes his belt. At that point, the plaintiff waves his finger at Jamal, who is looking at him and continuing to wave the knife (0.02).

71 Kakoz then moves out from behind the plaintiff, wielding the belt with a view to disarming Jamal. He strikes out at Jamal with the belt which then falls from his grasp (0.05).

72 The plaintiff then moves back towards Jamal with his finger pointed (0.06). Jamal waves a white napkin at the plaintiff, seemingly indicating to him to keep out of it, or to move away. In the meantime, Kakoz appears to have moved out of the frame and away, although his reflection can be seen in the wall mirror and Jamal appears to be still looking at Kakoz (0.08).

73 Jamal and the plaintiff are then both seen to look at and commence moving towards an altercation involving Kakoz, which cannot be seen directly (although part of it can be seen in the reflection in the wall mirror) (0.09).

74 Jamal continues to look at the altercation and the plaintiff turns to look at Jamal. In so doing, the plaintiff walks towards Jamal's path with his finger pointed (0.10).

75 The position of the camera then alters, and Kakoz is shown fighting with another man next to a table with a heavily bloodstained tablecloth. Jamal continues to move towards the altercation and the plaintiff moves into what might be thought to be the edge of Jamal's intended path (0.11). In that sense, the plaintiff presents as moving into and potentially across the path between Jamal and the altercation involving Kakoz and the other man. The plaintiff then moves slightly towards Jamal (0.11) and is stabbed (0.12).

76 Whatever else might be said about the sequence of events to which I have referred -

(a) the plaintiff is fit and strong (and taller than Jamal, and Kakoz);

(b) the overall physical dynamics are suggestive of an alliance between the plaintiff and Kakoz (who is, at various points, seen alongside and even behind the plaintiff while both are facing off with Jamal), albeit that in a general sense the plaintiff appears to be seeking to suggest to Jamal that the knife not be used (again) while Kakoz is unquestionably aggressive and intent upon violence;

(c) at no point is the plaintiff shown to be restraining Kakoz - including while Kakoz strikes out at Jamal with the belt and then loses his grip;

(d) having lost his belt, Kakoz moves away to engage in another fight;

(e) the plaintiff and Jamal seem to see that fight and each begins to move towards it;

(f) the plaintiff then moves towards or into Jamal's path while waving his finger at him and is stabbed;

(g) in so moving, the plaintiff may well have been perceived by Jamal as shaping up to physically prevent him from further approaching the fight underway between Kakoz and the other man; and

(h) at all material times, the very large and bloodied knife can be seen in Jamal's right hand.

77 In light of the video footage to which I have referred, I cannot accept that the plaintiff was stabbed '[f]or no reason whatsoever' or that it is appropriate to regard him as having played merely the role of 'peacemaker'. Even if he might have thought that his overall intentions were good, he plainly put himself in a position in which, by his actions, his privately held intentions (if, in fact, he then held them) were very much at risk of being and, in my view, probably were, understood quite differently by Jamal.

78 Finally, the cross-examiner asked the plaintiff about his criminal history, to which he said -

... all that happened 2013 and 14. I don't really remember ...[126]

79 The plaintiff was then taken to a LEAP record which revealed him to have faced drug possession charges in 2015 (including for possession of methylamphetamine), as well as having appeared in the County Court in February 2016 on charges of aggravated burglary, common law assault and theft.[127] The plaintiff could not recall not referring to aggravated burglary during his evidence-in-chief.[128]

I've already said ... that I was young and stupid and I admitted I've been to prison and ... I used to do silly things but I've learnt [sic] my lesson and I became a better person, so.[129]

81 The plaintiff was asked further questions about his criminal activities and history and said -

... I don't remember in 2016 and 14 and 13. That's 10 years ago, 12 years ago.[130]

82 When then asked about having given evidence-in-chief that 'after 2014 until this day nothing', he said -

Yeah well I've mixed it up. It was 2016.[131]

83 More broadly, of course, the plaintiff had sought to suggest that he had become a 'better person' and, in his evidence-in-chief, had referred to being 'completely changed' since 2014, meeting his now wife in 2015 and 'working together ... into the right path' since 2017.

84 However, the LEAP record, together with the concession that the plaintiff 'mixed up' the chronology concerning his criminal activities means that, at the very least, the general proposition that he has been 'completely changed' since 2014 cannot be accepted.

85 More broadly, however, the present events took place in December 2019. It was not suggested that at any point on that evening the plaintiff was in the company of his now wife, although he is plainly shown to be in the company of Elley and Kakoz.

86 In that connection, Sami gave evidence concerning the development of the Corkage dispute, including an initial discussion between Sami, Elley and Kakoz outside the foyer door, parts of which can be seen in the Camera 16 footage (1.35-4.48). In that regard, he said -

Well, the discussion starts with who is the owner of La Mirage, (indistinct), and when he was walking out he says, "It's on you", so I heard his voice, from Kakoz, he's telling me, "He's mentioning you", that's why I - and then David [Elley], he came to me and he says, "I'm David", in our language, yes. Then he says, "You didn't respect us this night", I said, "Why? What do you mean we didn't respect you guys?" Adaay [Kakoz], he says, "You charged us $300 for the corkage". And then when he said that I said, "Well, what you get charged?", he said, "Yeah, we get six bottles of drink". And I said, "Each bottle is $50, that means $300, so what's wrong with it?", and he says, "No, because we are from the same community you need to look after us so we can look after you". I said, "Well, most of the community, they are here, like, it's Muslims and I expect everyone, not just you or them. And if you've been invited by someone - you purchased a ticket for 2 or $300, why you not offering the corkage?", he says, "No, we were invited here by one of our friends so we didn't pay for the ticket". And I said, "Well, if you've been invited then they should look after you for the drinks, why you ask me?". That's how the conversation started. And then he said, "No, you know Rami and Samir", I said, "Yeah, I know them, what's wrong with them?", he says, "No, we can be your supporter but if you support us" I said, "Well, that's how it is. If you get your drink that's when they didn't overcharge you. But as you say, you get the right charge". And he says, "No", I said, "Well, you should tell who invited you, on the VIP table, right?", he says, "Yes", I said, "Well, you need to make sure that the organiser, he told you about the corkage", and he said, "No, no-one told me". I said, "Well, let me walk you in so I can show you the contract, we keep a copy of this contract on the bar. If someone asks why we charge, well, this is our rules, if you need anything, if you want to return your ticket you ask the organiser and he will return your money, we don't want to (indistinct)".[132]

87 Later, Sami gave evidence concerning some aggressive and quite unacceptable language used by Kakoz, as well as events which unfolded inside the foyer, and said -

As soon as we walked in there is still Jamal outside and Adaay [Kakoz] is still swearing, this is just a few seconds, like, he's still talking to me, me and David [Elley] we're still facing going to the bar, and he started - the second swearing he said - Jamal he walked in, so he repeated to him. I heard Jamal's voice, like, he says, "Well, don't swear on him", because this time Adaay is swearing, which is his son, Jamal, walking in, "I'm going to fuck your mother and who is going to be your back up?". So Jamal, he says, "Hey, watch your words, don't swear on him". That's the time Jamal is just walking in. So he went across to the table which is next to the toilet, the table was there, and then Adaay straightaway he come past me and David, so he went to Jamal - David, he left me as well. So that's the screaming that started at that time, and my - Leo coming from the other door, he starts screaming but these two went to Jamal.[133]

88 Sami said that Elley and Kakoz started 'punching' and 'fighting' and were then 'pushed out' of the foyer onto the forecourt.

89 A little later, of course, Elley and Kakoz are shown to return and engage in very serious violence during the Brawl. In that regard, among other things, the 47 second video shows Elley retrieving an extendable baton from the hip of his pants and seeming to strike a kneeling man over the head with it, in the course of which the baton flies from his right hand (0.29).

90 In his evidence, the plaintiff disclaimed any knowledge of the baton.[134]

(a) the sharp sound when the baton strikes the kneeling man and subsequently falls to the floor suggests that it was made of metal; and

(b) the evidence was that security guards were 'wanding' patrons upon entry to the foyer prior to the concert (although, in cross-examination, the plaintiff said that he and Elley and Kakoz had 'walked straight in' and denied having been searched with a wand).[135]

(a) I do not accept that the plaintiff and others 'walked straight in' without being wanded;

(b) it follows that it is unlikely that Elley had the baton at the time of the concert;

(c) after the Corkage dispute, it is likely that the plaintiff sought to drive Elley and Kakoz away in Elley's car;[136]

(d) in the circumstances, it is likely that Elley retrieved the baton from his car at the same time as the car was being driven by the plaintiff;

(e) in the Camera 16 footage, Elley appears to be reaching for the baton at his hip at the point at which he approaches the door to re-enter the foyer immediately prior to the Brawl (13.02);

(f) in the 47 second video, Elley is, of course, shown to use the baton in quite shocking violence less than a minute later (0.29); and

(g) much of the above makes it practically impossible to believe the evidence of the plaintiff that he did not know why Elley and Kakoz wanted to return to the foyer, did not know that they were intent upon fighting and did not know that Elley had a baton.

93 In any event, the evidence of Sami, which I accept, suggests that Elley and Kakoz attempted to stand over him before 'punching' and 'fighting' during the Corkage dispute, and the various videos and Camera 16 footage amply show the violent disposition of each of them and that the plaintiff was involved in at least some aspects of the confrontations and altercations.

94 In the circumstances, whatever might be said about the plaintiff's aspirations before and since his marriage in 2023 (which I should not be understood to be discouraging), having been in the company of men such as Elley and Kakoz and involved in very serious violence fomented by them as late as December 2019, it is not easy to accept that the plaintiff has been wholly devoted to 'the right path' since 2017.

95 Albeit that the plaintiff seems now to have settled upon a general narrative that would reflect upon him favourably, the various videos and other evidence to which I have referred would suggest that -

(a) significant parts of his present narrative must be wrong; and

(b) other parts of the narrative are, at the very least, highly improbable and cannot be accepted.

(a) the plaintiff has been 'completely changed' since 2014;

(b) the plaintiff walked out of the bathroom at the time of the Corkage dispute, saw Elley and Kakoz 'talking' and then walked straight out of the foyer and into the car;

(c) the plaintiff did not know that Elley and/or Kakoz had been involved in a fight following which they were removed from the foyer after the Corkage dispute;

(d) the plaintiff kept his distance from others after the Corkage dispute, particularly Elley and Kakoz;

(e) the plaintiff did not know why Elley and Kakoz wanted to get out of the car and return to the foyer;

(f) the plaintiff did not know that Elley and Kakoz were returning to the foyer to initiate a fight;

(g) the plaintiff saw Elley and Kakoz walking from the car 'normally' and 'didn't see any aggression, nothing';

(h) the plaintiff entered the foyer and saw a pile of people on top of Elley and merely lifted one person off the pile;

(i) during the Brawl, the plaintiff 'did not lay one hand on nobody' and was not involved in the physical altercations;

(j) the plaintiff merely said 'stop fighting' immediately prior to being stabbed by Jamal; and

(k) during the Brawl, the plaintiff was merely some kind of 'peacemaker' and nothing more.

(a) the influence upon memory of factors such as time, litigation and wishful thinking are recognised and well-understood;[137]

(b) the plaintiff did not present as a reliable historian;

(c) in particular, the plaintiff's account of events seems likely to have been influenced by elements of wishful thinking as well as reconstructed by reference to an incomplete and rather blinkered review of the videos seen after he was discharged from hospital (which review does not seem to have included the One second video);

(d) in that context, I feel no confidence that the plaintiff now has any true or reliable memory of the subject events;

(e) in particular, as I have indicated, significant parts of the plaintiff's present account cannot be accepted; and

(f) consequently, the plaintiff's evidence concerning the subject events must be approached with very great caution and should not be relied upon in respect of any matter in dispute unless reliably corroborated.

98 I have earlier referred to the circumstances in which, on the first day of trial, the plaintiff sought and was granted leave to late serve a subpoena upon Naje to attend to give evidence at trial. In that connection, in opening, senior counsel for the plaintiff stated -

We're still exploring the role of Naje Koru and we'll have to see how things develop there when we get some more material about him.[138]

99 In the circumstances, it is perhaps hardly surprising that when Naje attended and gave evidence he presented as acutely self-conscious, apprehensive and even fearful. Indeed, at one point, he blurted out 'I'm not a criminal'.[139]

100 More particularly, from the earliest point in his evidence, Naje seemed extraordinarily eager to suggest that he had worked at the function centre 'employed from Sami'.[140] Albeit that he described himself as 'head security', Naje was keen to impress upon the Court that, among other things, he had merely taken direction from Sami, done 'whatever he [Sami] tell me' and played no part in the retention of the other security guards who, he said, were also directed by Sami, 'not me'.[141] Even given in chief, this evidence was strikingly unconvincing.

101 Naje subsequently gave evidence-in-chief that -

(a) he did not know whether anyone was ejected from the function centre on the night;[142]

(b) he could not remember and 'couldn't see' a fight;[143]

(c) he had signed off and 'just ... left' at 1am together with his wife, who was on crutches;[144] and

(d) on the night, the door to the foyer 'wasn't work[ing]', in the sense that it had to be opened and closed 'by hand' - although he said that it could be locked using a key.[145]

102 There were some parts of Naje's evidence that seemed likely to be true, particularly that -

(a) if a fight occurred, 'we call the police';[146]

(b) in respect of dealing with fights, 'really we [meaning the security guards] know our job';[147] and

(c) in the past, a couple of fights had happened, 'but not that serious'.[148]

103 However, much of the evidence-in-chief to which I have earlier referred is not easy to reconcile with the various videos and the Camera 16 footage, and seems to me to have been warped by forces of acute self-consciousness, apprehension and fear.

104 Unsurprisingly, during cross-examination, Naje was challenged about those and other aspects of his evidence. Among other things, he was taken to specific parts of the video footage in which he is seen and which must have been taken after 1am. Many of his answers were non-responsive, and even in the face of the videos he sought to maintain, in substance, that he 'can't remember nothing'.[149]

105 None of that seems likely to have been true, and all of it seems to have been borne of an acute desire to distance himself from the events of the night and to attribute the entirety of any responsibility to Sami. For the most part, however, the cross-examination simply confirmed the impressions evident from the very beginning of Naje's evidence.

106 That said, Naje was cross-examined specifically about his earlier evidence concerning the foyer door and, contrary to his evidence-in-chief, stated -

I can't remember how was the door. It's been six years. I don't know how was the door.[150]

(a) the evidence of Naje must generally be approached with great caution;

(b) no reliance can be placed upon the aspects of his evidence which I have identified as unconvincing or likely to have been untrue; and

(c) in particular, his initial evidence concerning the foyer door is unreliable.

108 Similarly, Floran gave evidence in response to a late-served subpoena and, at the outset, also presented as rather keen to suggest that he had been called, directed and paid by Sami, not Naje.[151] That said, his initial desire to implicate Sami receded somewhat as his evidence unfolded. For example, Floran stated -

As a security, we know what to do in terms of fight, but Sami doesn't like - La Mirage doesn't tell us if there is a fight, what to do. No-one tells us.[152]

109 In that connection, Floran said further that 'as a security, we have to call the cops if there is a big fight' and that, after the Corkage dispute, Floran had said 'call the cops', and Sami had also said 'yes, we have to call the cops'.[153]

110 In any event, among other things, Floran gave evidence-in-chief that -

(a) on the evening, the door to the foyer was 'broken' in the sense that it was opening and closing 'by itself', and each time it closed it would instantly re-open, until it was turned off after the Corkage dispute;[154]

(b) Elley and Kakoz had returned '10 to 15 minutes' after being ejected;[155]

(c) when the Brawl commenced, a fight broke out inside the foyer door and Jamal was standing next to Floran[156] - which Floran later explained was over 'on the right';[157]

(d) Naje was not present, as he had 'signed off before the first fight';[158]

(e) Jamal stabbed Elley in the back, although Floran also said that Jamal 'first stabbed' the plaintiff[159] and later said that 'the first stab' was Elley and then Kakoz and then the plaintiff;[160] and

(f) as far as he had observed, the plaintiff had not been involved in a fight with anyone.[161]

111 Putting aside the evidence concerning the 'broken' foyer door (which I tend to think is highly improbable, as it is hard to imagine workers and hundreds of patrons navigating or tolerating a main door that was opening and closing 'by itself' for hours before it was disabled), much of the other evidence to which I have referred sits uncomfortably with the videos and Camera 16 footage, particularly the One second video.

112 The fragility in Floran's evidence tended to be underlined by the cross-examination that followed.

113 In that regard, he was taken to transcripts of oral evidence given by him at a committal relating to the criminal prosecution of Jamal as well as the subsequent criminal trial (at which Jamal was acquitted).[162]

114 When confronted with the differences between aspects of his earlier evidence and his evidence in the present trial, Floran's responses tended to be argumentative as well as not particularly easy to follow and, overall, did not suggest that he should now be regarded as likely to have retained a reliable memory of events.

115 In that connection, I should mention the following part of the cross-examination of Floran concerning the Corkage dispute -

So you accept that Mr Yakou [the plaintiff] was inside the premises during the first fight? ---I didn't see him. I didn't see him inside the first fight because - the first fight was David [Elley] and Adaay [Kakoz], yeah. When I kicked them outside, and then he came. So how would I know if someone - in that room, for example, he's in that room, yeah, and then I'm kicking two of them from this room outside, and then he comes from the door behind me, how would I know he's in there?

Are you suggesting that Mr Yakou was inside but in a different room so you didn't see him; is that what you're saying?---Probably he's in the toilet. Probably he's in a - I don't know where - - -

- - - yeah, how do you know he was in the toilet?---I didn't. - I'm - that's what I'm saying. Probably he's in the toilet, probably he's in the - somewhere else. I don't know where he was.

Did someone tell you that Mr Yakou was somewhere else, like the toilet?---No, no-one told me.

Spoken to Mr Yakou about his evidence?---I don't even have his number.

Well, how did you know that he was inside, perhaps in the toilet?---That's what I'm saying. I'm not saying he was in the toilet. I said maybe - maybe he was in the toilet, maybe he was in a different room, maybe somewhere else. I don't know where he was.[163]

116 Of course, the plaintiff's evidence had been that he was in the bathroom at the time of the escalated Corkage dispute, and when Floran speculated about an explanation of exactly that kind, the radar of the cross-examiner was appropriately activated. Whatever else might be said about this passage of evidence, it tends to demonstrate the speculative, rather tangled and, at times, practically incoherent evidence which Floran was apt to give, particularly in cross-examination.

117 In the circumstances, Floran presented as a slightly more reliable historian than Naje, although that is not saying much. In the end, too much of his evidence was unlikely, speculative, insufficiently coherent or inconsistent with other, more reliable sources (particularly, the videos and Camera 16 footage), for it to be concluded that contested parts of it should be relied upon without reliable corroboration.

118 Dr Zalewski gave evidence as an expert in systems of security. His qualifications were described as including a Bachelor of Arts specialising in criminal justice administration, a Bachelor of Laws, a Master of Arts with Honours in criminology and a Doctorate of Philosophy in systems of security.[164] There was no challenge to his expertise.

119 Other parts of Dr Zalewski's evidence will be considered later in respect of the question of liability. That said, there are two particular features of his evidence that should presently be mentioned.

120 The first is that, in evidence-in-chief, a central part of Dr Zalewski's opinion was expressed in terms to which I have earlier referred in part, and will repeat here for convenience -

Well, I think it's pretty fair to say, statistically, we all know the time of highest risk is the last two hours. And even though it might be justified to reduce 16 [security staff] down to whatever number in the circumstances, the realities are three [security staff] would never meet the need because, effectively, you've got to control the door and control people who were, you know, confrontationist, and you don't know who else is involved. So three could never be enough.[165]

121 I note the absolute terms in which that statement of opinion is ultimately expressed ('never'), as well as the reference to 'people' who 'were' confrontationist (which is strongly suggestive of reasoning by reference to hindsight).

122 In any event, shortly thereafter, and in evidence to which I have also earlier made reference but will again repeat here for convenience, Dr Zalewski was asked what he thought would have been 'reasonable staff levels at this venue' and replied, relevantly -

I would have thought - I don't necessarily concur that it should be 16 [security guards], you know, the four in-house and the other 12. But certainly three would not have been enough to control just that small area that's under the CCTV vision that we've all seen. So, you know, I would think - and I mean, I'd be guessing, but I would guess it would be something north of six or seven until the last person leaves.[166]

(a) no such 'guess' appears in any of Dr Zalewski's three reports;

(b) the assertion that three security staff is 'certainly' not enough is advanced by reference only to the 'small area' seen on the footage, and there is nothing about that assertion that makes it easy to evaluate in order that it might be accepted (or not); and

(c) the exact number of security staff being nominated is unclear ('something north of six or seven'), as is the precise basis by reference to which any such number might be calculated without the benefit of hindsight.

124 Moreover, the contrast between the certainty with which Dr Zalewski stated that three security staff could 'never be enough', and his subsequent 'guess' as to how many security staff would, in fact, have been reasonable, is striking. To me, it calls into question the entire foundation for the opinions expressed.

125 In that regard, the real problem with such evidence is that -

(a) it is essentially vague;

(b) it is in a style of almost pure argument;

(c) importantly, it is not easy to identify any relevant criteria against which the validity of such conclusions might be able to be evaluated;[167] and

(d) consequently, it is not easy to be comfortable that whatever opinions are thought to be being expressed in such evidence are reliable and should be accepted.

126 The problems to which I have referred became even more apparent in cross-examination.

127 At the outset, Dr Zalewski confirmed the industry standard of 'one guard for every hundred people, plus an extra one'.[168]

128 However, Dr Zalewski was then asked about the difference between nightclubs, which he had studied in the course of obtaining his PhD, and function centres. In various ways, he said that the considerations were '[n]ot necessarily' different.[169]

129 He was then asked about the classification of function centres as 'low risk', and said that they 'can be' and 'some are'.[170] He was then taken to part of his PhD thesis,[171] as well as to one of the papers referred to in one of his reports.

130 That paper, entitled Assaults on licensed premises in inner-urban areas, includes a table of statistics relating to assaults in inner Sydney arranged by category of licenced premises.[172] The category 'other' is identified to include 'off-licences, on-licences for motels, public halls, universities, colleges, vessels and functions, and governor's licences', and collectively to account for 1.3% of assault incidents. Dr Zalewski initially resisted confirming that 'function centres' probably fitted into the 'other' category, until acknowledging that it was 'true'.[173]

131 Dr Zalewski was then asked whether the absence of any security guards at the function centre at the relevant time had been part of the basis for his first report. He reacted a little defensively and said that it had not been 'clear' to him 'who the security staff were'. He was taken to part of his report which referred to an 'absence of security staff at the time of the subject incident'. In response, he said, among other things -

I'm not saying there were no security staff there. What I'm saying is I couldn't identify security staff. That doesn't mean there's no security staff there.[174]

132 Shortly thereafter, he said that that was what he had meant, and then said 'maybe it's poorly worded'.[175]

133 Dr Zalewski was then asked about whether numbers of security staff might have been reduced after the end of the concert, and he started out by agreeing that 16 security staff need not 'all be there'.[176]

They could reduce them, but I don't know how they'd do it. But they could do that, yes.[177]

135 When then asked whether it was common industry practice to reduce the number of security team members as the crowd size decreases, Dr Zalewski said -

I disagreed with that, and there's probably about three different points that you've just raised there. But the realities are even though - one, I - firstly, I disagree with the proposition that if there's been no previous incidents, then you may as well send people home - send security staff home. That's a bad practice, and that just leads to trouble because incidents can occur very quickly. We know those last two hours are the high-risk times. So that's the first - that's the first point. The next point is, "... even if there was a reduction, that the coverage was deficient, as discussed." So even if there was a reduction, whatever that reduction would be, it wasn't clear to me, you know, whether you would still maintain that type - a reduction in those circumstances.[178]

136 I pause to note that the effect of all of the above seemed to be either that Dr Zalewski disagrees that there is any such common industry practice or, if there is such an industry practice, Dr Zalewski disagrees with the wisdom of it, albeit that, at the same time, he agrees that numbers may be reduced, although he does not know how.

137 Thereafter, Dr Zalewski was asked about the facts of the matter, which he described as 'hypothetical' and, when told that it was 'the case', said 'I don't know' and 'I haven't got the full facts', before commencing upon another argumentative speech somewhat like that extracted above.[179]

138 The cross-examiner persisted and suggested that three or four security guards for the number of people remaining in the function centre was 'more than adequate', to which Dr Zalewski stated -

With the greatest of respect, when males decide to go at other males, you normally would have to have two males to control one male - one aggressive male. So - so with the greatest respect, to suggest that oh three crowd controllers is enough to ensure that everything is covered, it just doesn't work. It doesn't work. In many different environments, including licensed premises, you need to have two crowd controllers to control one very aggressive - or one aggressive male. So if you've got two onto one, you'd need to have - if there's three aggressive, you would want six there.[180]

139 To me, the above was plainly influenced by hindsight, and, uncannily, formed a rough link, at least numerically, with Dr Zalewski's earlier expressed 'guess' that 'something north of six' guards were required.

140 In that context, Dr Zalewski repeated his disagreement with the proposition that three to four security guards at the function centre at 1:40am was 'more than adequate'.[181]

141 In my view, most of the above was simply so intrinsically argumentative and unable to be clearly evaluated against applicable industry or other established criteria as to be unpersuasive.

142 In particular, while Dr Zalewski acknowledged the industry standard in respect of numbers of guards, and might possibly have acknowledged an industry practice of reducing numbers as crowd numbers decreased, he maintained that the number of guards in place at the function centre at the relevant time was insufficient, albeit that it likely complied with the industry standard.

143 Much of the reason for that seems to have resided in his assertions concerning what senior counsel for the plaintiff was apt to describe as the 'witching hour'.[182] However, if it were the case that the 'witching hour' is as prevalent and dangerous as Dr Zalewski appeared to suggest it was, even in function centres, it is unclear how it could be that the industry standard could have remained as it is. In that connection, it was not suggested that the industry standard applicable in respect of the so-called 'witching hour' is other than the standard applicable at all other times.

144 Further, the basis for any suggestion that, at function centres, there was a distinct period of two hours that should invariably be anticipated in advance and covered by greater numbers of security guards, seemed somewhat undermined by the following aspects of Dr Zalewski's evidence in cross-examination -

(a) when asked whether the last two hours of trade was linked to the end of the service of alcohol, he said 'I'm not sure we can put a stopwatch on it' and then said 'it's a guide';[183]

(b) he thereafter referred to what he described as 'the realities' and said -

... in practice, it might be three hours, depending on individuals who are consuming alcohol.[184]

... the last two hours is a guide. It might be, for some people, the last three hours. It might be, for some people, one hour.[185]

145 I might say that some of Dr Zalewski's later evidence was less hedged with argumentative qualifications and therefore somewhat more persuasive. But the manner in which Dr Zalewski gave evidence of the kind to which I have referred means that I am ultimately unpersuaded by it.

146 The second notable feature of Dr Zalewski's evidence concerned notes taken by his instructors in respect of discussions that appear to have taken place shortly prior to the production of his first report.[186]

147 In that connection, one instructor appears to have had a two minute telephone discussion with Dr Zalewski from 11:06 am on 29 July 2024. The instructor's note of that discussion states, relevantly -

Tony Zalewski

Report nearly done - concerns on: Liability on landlord?

If landlord kept premise in reasonable order - query how Yakou say landlord liable

4:00pm today? w Patsy Toop.

Will come back to you.[187]

148 It is not perfectly clear whether the solicitor called Dr Zalewski, or the other way around, although the last line of the note would suggest that it is more likely that Dr Zalewski placed the call.

149 Later the same day, at 4:29pm, two instructors appear to have placed a call to Dr Zalewski. The relevant exhibit includes the notes of that discussion recorded by each of the two solicitors.

150 The handwritten note of the solicitor who had been involved in the earlier call with Dr Zalewski covers five pages and records that the call occupied 22 minutes. Among other things, the note attributes the following statements or propositions to Dr Zalewski -

liability of landlord.

...

Risk that landlord will walk - not strong case against landlord.[188]

151 The file note of the other solicitor is typed, and states -

Matter of Ewan Yakou telephone conversation with Tony Zalewski Monday 29 July 2024 at 4.30pm.

You say- I will have the report completed in the next day or so.

I say- Great.

The defendant Jo Yo is the licensee- have no problems with liability and will detail grounds in the report.

With respect to the third defendant Genesis- case is less clear.

I say- Occupier liability- The common Law duty of care applies in relation to condition of the premises, activities on the premises, and the conduct of third parties on the premises.

Section 14A- Wrongs Act- a reference to occupier of premises includes a reference to the landlord of premises let under the tenancy, who is under an obligation to maintain and repair the premises - Security cameras, door?

Shall leave to you to reconcile- I did not draft the pleadings.

Those two defendants are represented by the same lawyer. Would assume no conflict.

Agree liability of the third defendant is less than first Defendant.

Look forward to receipt of report.

Patsy[189]

152 Dr Zalewski's first report was provided a few days later. Among other things, the summary of opinions states -

Based upon the various considerations discussed including the literature and common industry practice, I would expect the Second and Third Defendants to have collaborated to ensure risk issues for licensed premises were identified and treated/controlled. Further, the Second Defendant (Jo-Yo) as licensee and occupier should have developed a carefully thought through plan and strategies to minimise risk including strategies associated with monitoring and controlling patron behaviour in and around the venue until cessation of trade i.e. the venue was closed. The risk of harm was not insignificant.

The evidence against the First Defendant discloses a serious assault against the Plaintiff and others. Had the Second Defendant utilised an adequate system for crowd control, the incident involving injury to the Plaintiff would have been avoided. The Third Defendant was responsible for the state of the premises including fixtures that were security-related.[190]

153 Unsurprisingly, Dr Zalewski was cross-examined about the various file notes. Among other things -

(a) he said that he could not remember either of the calls;

(b) in respect of the first of the notes, he speculated that it was 'probably my question about, so how does all of this fit? Is it an occupier's liability case, or is it not?' - which is not the gist of any part of the relevant file note;[191]

(c) in that connection, he said that he would not have used the word 'concerns', as it was not his role, and then sought to attribute that word to 'someone' who had 'decided' to use it (in other words, he sought to suggest that the author of the file note had wrongly used the word, and so it should not be attributed to him);[192]

(d) in respect of the later noted statement that there was a '[r]isk that landlord will walk', he said that he 'would never have said that' as that was not his role and, again, suggested that the note was 'incorrectly recorded';[193]

(e) more broadly, he said -

I have never, ever spoken to a law firm along those lines about [the] risk of anyone walking. To me, that's not my role.[194]

(f) he again sought to distance himself from the note and said 'someone making a file note isn't necessarily what I've said';[195] and

(g) he explained that such a note 'implies that all of a sudden I'm ... starting to almost become an advocate here', which, again, he sought to suggest was not his role.[196]

154 While Dr Zalewski gave evidence that he could not remember the discussions noted and I would, of course, accept that the notes of the two solicitors involved in the second discussion are not identical, the fact is that -

(a) there are three such notes relating to two separate discussions;

(b) one solicitor appears to have been involved in both discussions, and another together with the first in the second discussion;

(c) the first note appears to record Dr Zalewski's 'concerns on: Liability on [sic: of] landlord' and 'query how Yakou say landlord liable';

(d) the second note attributes 'Risk that landlord will walk' directly to 'TZ'; and

(e) the third note seemingly records the solicitor saying to Dr Zalewski that the case against the third defendant is 'less clear' and seemingly agreeing with Dr Zalewski that 'liability of the third defendant is less'.

(a) one way or another, each of the three notes - together involving two separate occasions and two separate authors - attributes to Dr Zalewski an involvement in discussions concerning the liability case against the third defendant prior to production of his first report;

(b) in each instance, the involvement does not seem to have been merely curious; and

(c) it is not easy to believe that Dr Zalewski has been relevantly misquoted or misunderstood in all three of the notes.

156 To me, the notes are troublingly suggestive of an involvement by Dr Zalewski in discussions about the forensic direction of the plaintiff's case, which he readily acknowledged in his evidence, should not have been his concern.

157 In light of all of the above, it will be evident that there are significant parts of Dr Zalewski's evidence that I cannot accept and, more broadly, that the cross-examination of Dr Zalewski successfully highlighted respects in which, in the present case, he seems to have trespassed into some unfortunate territory.

158 As I have noted, Sami was called by the defendants.

159 In December 2019, he was the manager of the function centre, which was run by the second defendant as a family business until it was sold in 2022. He is now the manager of an IGA supermarket.[197]

160 As I have earlier noted, the plaintiff was critical of Sami's evidence. In the plaintiff's outline of closing submissions, it was submitted, among other things, that Sami had -

(a) 'unconvincingly attempted to walk back' the terms of the contract made between the second defendant and promoter, particularly in respect of the provision of security;[198]

(b) given 'patently false' evidence that all patrons 'had been removed from the rooms of the venue and that the promoter's security had left' after the Corkage dispute;[199]

(c) been 'at pains' to suggest that Naje had organised security for the function centre, possibly because of a 'forged' sign out time relating to Floran appearing in the crowd controller register;[200]

(d) given evidence that was 'not plausible' that another door at the function centre had been 'broken', not the foyer door of the 'Oasis room';[201] and

(e) given doubtful and even 'fabricated' evidence concerning the locking of the foyer door.[202]

161 By contrast, as I have earlier noted, the defendants submitted that Sami gave evidence in a 'credible and straightforward manner'.[203]

162 To me, it is of some significance that Sami gave evidence in English, albeit that he had a thick accent and English seemed to be very much his second language. That is not to say that he needed the assistance of an interpreter in order to give his evidence; merely to explain the manner in which some parts of his evidence were given.[204] In that connection, he tended to struggle with some of the language of a more elaborate or legal kind employed in the course of cross-examination.

163 In any event, he appeared to follow most of the questions asked during examination-in-chief, and answered them quite directly and in a manner that was not indicative of any self-consciousness or concern that his answers might bear upon the interests of either defendant.

164 In particular, in circumstances where, at that point, there seemed to be an issue concerning whether Sami was in the role of manager on the evening, or had given instructions to staff and the security guards -

(a) he readily acknowledged that he had spoken with Naje prior to the night in order to organise security for the event;[205]

(b) his evidence indicated that he had considerable familiarity with the security arrangements in place on the night;[206]

(c) he volunteered that he had spoken with Naje at 1am and said that he could leave;[207] and

(d) he volunteered that after Elley and Kakoz had been ejected from the foyer as a consequence of the escalated Corkage dispute, he had directed that the foyer door be closed, told Sabah not to let anyone in and, in fact, had personally closed the door and put up the latch.[208]

165 Similarly, in circumstances in which there was an issue concerning whether the plaintiff had been physically present or involved in the escalated phase of the Corkage dispute, Sami, when asked whether he knew the plaintiff, volunteered that he had not seen the plaintiff at 'that location' (meaning in the foyer during the escalated phase of the Corkage dispute).[209]

166 The evidence to which I have referred was given in chief and might be said to have been broadly supportive of contentions pursued by the plaintiff, and contrary to the evident and contrary position of the defendants.

167 The features to which I have referred remained apparent during cross-examination. In particular, Sami -

(a) immediately confirmed that he was the venue manager at the time of the subject events and that he had made his police statement in that capacity;[210]

(b) confirmed that he had given the order to get Elley and Kakoz 'out' when the Corkage dispute escalated,[211] and had also asked whether the police had been called;[212]

(c) confirmed that at 1:30am there had still been a few guests inside the foyer purchasing photographs;[213]

(d) again addressed, in some detail, the security and other arrangements on the night;[214]

(e) confirmed that the responsibility for 'inside the premises' relevantly rested with him, meaning the second defendant, and, in particular, that the second defendant was relevantly responsible for the foyer door;[215]

(f) confirmed that he had not seen the plaintiff during the 'first fight', meaning the escalated phase of the Corkage dispute;[216] and

(g) acknowledged that he had not seen who punched him at the commencement of the Brawl (although, having seen the One second video, he believed that it was 'Yakou', meaning the plaintiff).[217]

168 In that context, and in respect of the specific criticisms identified above -

(a) if the expression 'walked back' is intended to suggest that the plaintiff gave transparently disingenuous evidence concerning modification of the terms of the contract with the promoter relating to the retention of security guards, I do not accept it. In my view, that evidence was given in perfectly reasonable terms and tone, and I accept it;[218]

(b) I do not accept that Sami gave 'patently false' evidence about all patrons having left, and that the promoter's security had left. Among other things, as I have noted, Sami acknowledged that although 'most' of the patrons had left, a few remained in the foyer;[219]

(c) I do not accept that Sami was 'at pains' to suggest that Naje had organised security for the function centre, because of a 'forged' sign out time in the crowd controller register relating to Floran or otherwise. Among other things, Sami was not referred to that evidence in the course of cross-examination, and it was certainly not suggested to him that he had been party to any 'forgery';

(d) I do not accept that Sami gave implausible evidence that another door at the function centre had been 'broken'. The relevant evidence was given in a wholly straightforward manner, in the course of which Sami specifically identified the room with the broken door (ie, the 'Sapphire Room');[220] and

(e) I do not accept that Sami gave doubtful or 'fabricated' evidence concerning the locking of the door. That does not mean that his evidence on the point was a model of clarity.[221] However, I cannot accept that it was given in a manner that was in any way disingenuous or that should be taken to bear significantly upon any overall assessment of his credibility and reliability as a witness.

169 In the circumstances, I accept the broad submission of the defendants that Sami presented and gave evidence in a 'credible and straightforward' manner. To me, he quite plainly sought to give accurate evidence.

170 That said, the Brawl, in particular, involved a fast moving and traumatic series of events that occurred within a very short period of time. It is notoriously difficult for any witness to give accurate evidence of such an event from memory alone. Realistically, Sami's evidence relating to the commencement and conduct of that event must be considered carefully and with reference to other relevant evidence, particularly the evidence that is somewhat more objective and therefore reliable (ie, the various videos and Camera 16 footage).

171 As I have noted, Leo is Sami's adult son. In December 2019, he was employed by the second defendant as a floor manager at the function centre.

172 The defendants broadly submitted that Leo, like Sami, gave evidence in a 'credible and straightforward manner'.[222]

173 By contrast, in his outline of closing submissions, the plaintiff submitted that -

(a) Leo's evidence in relation to the time at which the escalated phase of the Corkage dispute occurred, as well as the number of patrons in the function centre at about that time, was 'in conflict' with what was described as the 'patently false' evidence of Sami;[223]

(b) like Sami, Leo had been 'at pains' to suggest that Naje had organised security, possibly because of Floran's 'forged' sign out time in the crowd controller register and those of other guards;[224]

(c) Leo's evidence about a 'shared responsibility' with Naje for security was 'self-serving' and should be rejected - indeed, it was said to have been conceived of after the cross-examination of Naje and Floran, and so to cast serious doubt over the credibility of Leo (and Sami);[225] and

(d) Leo's evidence about having swung at the plaintiff because the plaintiff hit his father was 'not born[e] out by contemporaneous statements', or the evidence of Sami, and so should be rejected.[226]

174 Unlike his father, Leo had an easy command of English. Like his father, however, Leo gave evidence in a manner that was unselfconscious. If anything, his manner was even franker.

175 In that connection, it may be that the evident later determination of the plaintiff to downgrade and not further develop the contention that there had been a failure to telephone police after the Corkage dispute is to be explained by the completely frank and uncomplicated manner in which Leo gave evidence of having done so.[227] That said, it is ultimately unnecessary to make such a finding.

176 Of more direct present relevance, like Sami, there were aspects of Leo's evidence that were quite plainly contrary to the overall interests of the defendants. In particular, in evidence-in-chief, Leo -

(a) confirmed that, on the night, he had conducted a security briefing with Naje;[228]

(b) estimated that the escalated phase of the Corkage dispute occurred 'I'd say around 1:15 to 1:20[am]';[229] and

(c) was 'not too sure' how Elley and Kakoz had got through the front door when they returned to the function centre after the Corkage dispute.[230]

(a) confirmed that the plaintiff had not 'had any altercation' with Jamal during the 'first fight' (ie, the escalated phase of the Corkage dispute);[231]

(b) said that there was a 'shared responsibility' for security;[232] and

(c) in that connection, confirmed that he bore 'principal responsibility' for security because he could 'overrule' Naje.[233]

178 As to the criticisms to which I have earlier referred -

(a) in circumstances in which Leo's evidence concerning the time of the Corkage dispute is said, by the plaintiff, to be a part of the 'best evidence',[234] it is not wholly clear how the fact that it stands differently to the evidence of Sami could be said to be to Leo's discredit. It is also not clear how it could be that such evidence is among the 'best evidence' on that topic in circumstances in which it was later said by the plaintiff that Leo's credibility as a witness is in 'serious doubt'.[235] In any event, albeit that I ultimately do not accept Leo's estimate of the time of the Corkage dispute, I do not accept that it stands in any way to his discredit;

(b) it was not apparent that Leo was 'at pains' to say that Naje organised security on the night - his evidence on that topic was given in a manner which was entirely frank. As to the sign out times in the crowd controller register, as with Sami, Leo was simply not asked about them;

(c) I do not accept that Leo's evidence about a 'shared responsibility' for security was 'self-serving'. I have already referred to his ready confirmation that he bore 'principal responsibility', which was hardly self-serving. Further, it was not suggested to Leo that any part of his evidence had recently been invented;[236] and

(d) there is nothing in Leo's evidence concerning the altercation shown in the One second video that, in my view, should be taken to bear upon his credit and/or reliability as a witness. Indeed, for reasons to which I will later come, I accept his evidence that the plaintiff struck Sami and that he (Leo) responded.

179 In my view, Leo gave frank and honest evidence.

180 For the most part, I also consider Leo's evidence to be reliable. That said, given the fast-moving and traumatic nature of the Brawl, I tend to think that Leo's evidence concerning those events should be approached with some care.

181 Peter Smith was called by the defendants to give expert evidence in respect of security arrangements. His two reports were received into evidence.[237]

182 There was no formal challenge to Mr Smith's expertise, although the plaintiff submitted that his evidence should be given 'substantially less weight' than that of Dr Zalewski because there was said to be a 'vast difference in relevant experience' between them.[238] Having regard to what I have already said about Dr Zalewski's evidence, it should be evident that I would not discount Mr Smith's evidence merely on the basis of the asserted vast difference in experience.

(a) Mr Smith had 'inaccurately assumed a number of critical facts';[239]

(b) Mr Smith 'would not appropriately concede that the incorrect operation of the door' would render the function centre more vulnerable to re-entry and that it was inadequate for the second defendant to have not had documented security procedures;[240] and

(c) Mr Smith's evidence was 'more in keeping of [sic: with] that of a "hired gun"'.[241]

184 It is presently sufficient to say that there is no real substance in any of the above criticisms. In my view -

(a) Mr Smith did not assume 'inaccurate' facts to a degree that should be considered to displace the opinions he otherwise proffered;

(b) Mr Smith gave evidence in reasonable terms and tone, and made appropriate concessions; and

(c) the submission that Mr Smith was no more than a 'hired gun' cannot be accepted as, in my view, there was nothing about Mr Smith's evidence that would justify it.

185 In my view, Mr Smith gave expert evidence in satisfactory terms and I would not accept that his credit ought be considered to carry a stain of the kind suggested.

(a) the important evidence comprising the various videos and Camera 16 footage;[242]

(b) the extracts from the crowd controller register;[243]

(c) the reports of Dr Zalewski;[244]

(d) the reports of Mr Smith;[245] and

(e) some other documentary evidence tendered by the defendants.[246]

187 The plaintiff also tendered several statements and other documents derived from the subsequent police investigation and prosecution of Jamal, particularly -

(a) an extract from the transcript of the evidence of Valentina Essa;[247]

(b) statements of Mark Oshana, Hani Younan, Onel David, Rami Wassouf, Floran, Sami, Valentina Essa and Constable Whelan;[248] and

(c) a Victoria Police summary of facts.[249]

188 Some of that evidence will be referred to further below.

E Findings concerning aspects of the events on the night

189 As I have indicated, the credit and reliability of the respective witnesses necessarily bears upon the findings made concerning the relevant events.

190 That said, in passing, I have already alluded to several apparently non-contentious aspects of the events. Some of that was no doubt due to the evident contents of the videos and Camera 16 footage.

191 In that connection, there ultimately seemed to be no great controversy that -

(a) the concert was a ticketed and seated event;

(b) several hundred patrons attended and an international singer performed;

(c) there were no documented security procedures;

(d) the plaintiff attended and left the concert with Elley and Kakoz;

(e) the concert finished prior to the Corkage dispute;

(f) prior to the end of the concert, there were 16 security guards present, including Naje, Floran, Sabah and Raad;

(g) at some point, the 12 security guards provided by the promoter signed off;

(h) at some point during the escalated phase of the Corkage dispute, Kakoz and possibly also Elley struck at least Jamal;

(i) the plaintiff was probably not involved in the violence that occurred during the Corkage dispute;

(j) as a consequence of the Corkage dispute, Elley and Kakoz were ejected from the foyer;

(k) the plaintiff also left the foyer a short time thereafter, but did not leave in the same manner (although the defendants contended that he had been directed to leave by Floran);

(l) the plaintiff, together with Elley and Kakoz, commenced to leave in a vehicle;

(m) at some point, the plaintiff stopped the vehicle and Elley and Kakoz alighted;

(n) the plaintiff parked the vehicle in the car park and followed Elley and Kakoz back into the foyer (about 18 seconds after Kakoz re-entered in the wake of Elley);

(o) the end of the Corkage dispute preceded the return of Elley and Kakoz (and then the plaintiff) by more than seven minutes;

(p) after the re-entry of Elley and Kakoz, the Brawl erupted;

(q) the One second video was taken a matter of seconds after the commencement of the Brawl;

(r) Naje signed off at about 1:00am, but must have stayed in and around the function centre until the initial phase of the Brawl as he appears, relevantly, in the One second video as well as parts of the Camera 16 footage (particularly at 13.32);

(s) a significant part of the Brawl was captured in the 47 second video;

(t) during the Brawl, Elley was armed with an extendable baton (at least until it is seen to fly from his hand during the 47 second video at 0.29); and

(u) during the Brawl, Elley, the plaintiff and Kakoz were each stabbed by Jamal using a large kitchen knife.

192 In that context, the following presently relevant areas of controversy emerged -

(a) the times of the relevant events, particularly the Corkage dispute and the Brawl;[250]

(b) the security arrangements in place, including whether there was a 'shared responsibility' for security;

(c) whether the door to the foyer of the 'Oasis room' was 'broken' or 'not functioning', including whether it was closed and/or locked after the Corkage dispute;[251] and

(d) the plaintiff's role during the Brawl - in particular, whether he struck Sami.

193 To some extent, aspects of those controversies (as well as the manner in which several of them arose) have already been addressed. Nonetheless, it is appropriate that specific findings be made.

194 I should add, however, that there are a handful of subsidiary or more minor points that are more conveniently addressed in connection with the subsequent issue of liability.

195 I have earlier noted the fact that the videos and Camera 16 footage do not bear time stamping from which the time of the Corkage dispute and Brawl, in particular, might directly be determined.

196 I have also noted the manner in which the present controversy belatedly arose. In that general connection, the plaintiff referred to -

(a) part of the evidence of Sami to the suggested effect that the singer had commenced 'around 11 to 11:30 pm' and had 'performed for around 2 hours';[252] and

(b) Leo's estimation that the Corkage dispute occurred 'I'd say around 1:15 to 1:20',[253] as well as the statement to police by Valentina Essa that the Corkage dispute occurred 'around 1am - 1:20am'.[254]

197 As I have noted, much of the trial was conducted on the basis that the concert ended at about 1am, the 12 security guards provided by the promoter signed off at 1:30am, the escalated phase of the Corkage dispute occurred about 1:35am and the Brawl occurred some minutes later.

198 In essence, that was the final submission of the defendants which, in my view, should broadly be accepted.

199 In that regard, the plaintiff's submissions refer incompletely to the relevant evidence of Sami. Among other things, when asked about the time at which the concert finished, Sami said '1 o'clock'.[255] Later, in cross-examination, Sami clarified his answer and said that the 'last song' was 'by 10 to 1'.[256] I accept that the concert was over by 1am.

200 I also accept that in the ordinary course of an event of the present kind the singer and most of the patrons would have left shortly after the end of the concert.

201 In that general connection, I essentially accept the following evidence given by Sami -

(a) service of alcohol ceased at 12:30am;[257]

(b) at 1am, Naje told Sami that he wanted to leave with his wife, and Sami said '[y]eah, you can';[258]

(c) at that point, it appeared that '[e]verybody' was going to leave;[259]

(d) the 12 security guards provided by the promoter made sure that the guests left the 'Oasis room';[260]

(e) to that point, there had been no problems with the crowd;[261]

(f) by 1:30am, the 12 security guards provided by the promoter had left with the singer;[262]

(g) Raad, Sabah and Floran remained on duty thereafter;[263]

(h) by 1:35am, there were 'a few people' left in the foyer purchasing photographs ('probably six, seven, 10, around that, I can't remember exactly');[264]

(i) the 'first fight' (or escalated phase of the Corkage dispute) occurred at '1:35[am], around that time';[265] and

(j) the 'second fight' (or Brawl) occurred about '5 or ten minutes' later, at about '1:50, 1:45[am], something'.[266]

202 As I have noted, the plaintiff sought to attach significance to the evidence of Floran to the effect that his signature in the crowd control register had been 'forged' and so to cast doubt upon the 'finish' times recorded for the 12 security guards provided by the promoter.[267] In my view, there is no real substance in the latter contention -

(a) Sami gave evidence that the book was kept by Naje;[268]

(b) the entries relating to the 12 security guards appear after the sign off time for Naje - which was broadly accepted to be correct;

(c) it was not suggested to Sami or Leo that either had 'forged' any part of the entry relating to Floran (or anyone else);

(d) any suggestion that Sami or Leo would have been motivated to do so seems to me to be fanciful; and

(e) in light of the highly dramatic circumstances of the evening, it seems to me to be unremarkable that some unidentified person might have at some point incorrectly estimated and entered a sign off time of 1:30am for Floran (and perhaps also Raad and Sabah).

203 The plaintiff also described the time estimates given by Leo ('I'd say around 1:15 to 1:20')[269] and Valentina Essa ('[a]t around 1am-1:20am')[270] as constituting the 'best evidence'.[271]

204 Valentina Essa was not called to give evidence. The evidence to which the plaintiff referred was in her police statement, which was taken on the night and signed and witnessed at 2:50am.

205 In those circumstances, it is unsurprising that Ms Essa's police statement does not refer directly or in terms to what was referred to during the trial as the 'Corkage dispute' and the 'Brawl'. Indeed, it is debatable whether her statement refers to the phase referred to as the 'Corkage dispute' at all.

206 The events recounted in Ms Essa's statement were plainly traumatic and nothing in the statement bears any hallmark of Ms Essa having been tested or queried concerning the times which she estimated.

207 The relevant evidence of Leo was given simply in response to an invitation to provide his 'best' recollection. He responded with what was plainly an estimate. His estimate was not tested with reference to any of the other evidence.

208 In that regard, the statement of Constable Whelan of Broadmeadows Police Station, taken more than a month after the relevant events, states -

At approximately 1.47AM we received a job from Police Communication Centre (PCC) for a large brawl where several victims had been stabbed at the La Mirage Function centre, located at 210 Hume Highway, Somerton. Multiple calls to 000 were made by varying witnesses at the scene.[272]

209 Notwithstanding the use of the word 'approximately', the reference to '1.47AM' is precise and would suggest that the Constable or some other police officer made particular note of the time at which the call was received from Police Communications.

210 Further, the paragraph suggests that the call to Broadmeadows police was placed after '[m]ultiple calls' had been made to '000' concerning a 'large brawl' in which 'several victims had been stabbed'. Plainly, that must refer to the Brawl, and the references to '[m]ultiple calls' and several persons having been 'stabbed' suggests that at least some of the events of the Brawl had already occurred, and, of course, that the circumstances were urgent.

211 In that connection, at the commencement of the 47 second video, Jamal is shown waving the blood stained knife at Kakoz and the plaintiff. Clearly enough, at that point, the knife has already been used to stab at least one other person (probably Elley).

212 As earlier noted, the scene shown at the commencement of the 47 second video must have taken place about 20 seconds after the plaintiff ran into the foyer. About 12 seconds after that opening scene, the plaintiff is seen to be stabbed by Jamal.

213 It follows that by a little over 30 seconds after the plaintiff ran into the foyer, 'several victims' had been stabbed. At that point, the Brawl remained in progress and did not finish until a little over 40 seconds later.[273]

214 I should add that some of the police statements received into evidence tend to suggest that, after the Brawl erupted, several employees retreated into other rooms at the function centre.[274]

215 As I have indicated, such statements are not likely to be reliable in respect to any precise sequence of events. However, the notion that several employees might have immediately retreated from such horrifying violence is commonsense, as well as being consistent with the actions of those seen in the background of the early part of the 47 second video. Having retreated safely, I expect that the very first thing that many such persons would do is call 000.

(a) 000 calls were probably being made less than a minute after the Brawl erupted and therefore while it was still in progress;

(b) there was probably a delay of a few seconds while Police Communications placed the call to Broadmeadows police (at 1:47am);

(c) therefore, the Brawl was likely in progress at about 1:46am; and

(d) having regard to its overall length, the Brawl was probably finished by 1:47am.

217 I have earlier noted that the Camera 16 footage does not bear a reliable timestamp, although it is 17 minutes and 14 seconds in length and both parties appeared to accept that it accurately records the passage of that period of time.

(a) the initial phase of the Corkage dispute (on the forecourt, immediately outside the foyer door) appears to commence at 1.36 of the Camera 16 footage;

(b) Sami, Elley and Kakoz appear to go into the foyer at about 4.49;

(c) at about 5.15, people on the forecourt appear to notice a disturbance taking place inside the foyer;

(d) Kakoz is ejected onto the forecourt at about 5.31;

(e) Elley is ejected onto the forecourt at about 5.56;

(f) at 7.17, the plaintiff is seen to follow a group including Kakoz from the forecourt and into the darkness of the carpark;

(g) for periods thereafter the forecourt is shown to be largely or entirely empty;

(h) at 12.51, a man standing on the forecourt appears to notice the approach of persons in the carpark;

(i) at about 12.59, that man and Sabah attempt to prevent Kakoz and Elley from re-approaching the door of the foyer;

(j) Elley seems to re-enter the foyer at about 13.03, and Kakoz at 13.05;

(k) the plaintiff appears to run from the carpark across the forecourt at about 13.21 and re-enter the foyer at about 13.23;

(l) Kakoz exits onto the forecourt at 14.00;

(m) the plaintiff exits onto the forecourt at 14.11 (at that point, the plaintiff was already injured) and then re-enters the foyer at 14.23;

(n) the plaintiff exits again at 14.33;

(o) Elley exits onto the forecourt at about 14.37; and

(p) at about 14.54, Kakoz is seen to strike at the foyer door, and/or window next to it, with a large metal stake.

219 The above analysis would suggest that the Brawl took place between about 13.03 and 14.37; which is a period of just over a minute and a half.

220 Accepting that the Brawl must have been in progress at about 1:46am and finished by 1:47am, the passage of time referred to above would suggest that -

(a) the Camera 16 footage commences at about 1:31 or 1:32am;[275]

(b) the escalated phase of the Corkage dispute commenced about four and a half minutes later, at about 1:35 or 1:36am;

(c) Kakoz and Elley were each ejected from the foyer and onto the forecourt at about 1:36 or 1:37am; and

(d) Elley and Kakoz, and then the plaintiff, re-entered the foyer about seven and a half minutes later, at about 1:45 or 1:46am.

221 It is plainly not possible to be completely precise about the above. However, it does align, essentially, with the plaintiff's submission that 'there was approximately 7 minutes and 34 seconds between the two fights'.[276]

222 It is also consistent with Sami's evidence that the 12 security guards provided by the promoter had left by 1:30am. It was essentially common ground that none of the 12 guards provided by the promoter can be seen at any point during the Camera 16 footage.[277]

223 More broadly, it will be evident that much of the above tends to corroborate significant parts of the earlier accepted evidence of Sami. If anything, it tends to assist in making some of the times recalled and estimated by Sami a little more precise.

(a) early in the proceeding, and particularly during parts of the evidence of Naje and Floran, it appeared to be the intended contention of the plaintiff that, via Sami, the second defendant was wholly responsible for security on the night and, indeed, Naje, Floran, Sabah and Raad were employees of the second defendant;

(b) aspects of that general contention ultimately faded such that in the plaintiff's outline of closing submissions it was submitted that -

... the evidence supports a finding that there was no delegation of responsibility by the [s]econd [d]efendant to [Naje] and that the [s]econd [d]efendant was in fact the "true power" with responsibility to direct and instruct in respect of security staffing levels, training, collaboration between different security entities, the proper process of work to follow in the event of an assault at the premises, and the nature of work duties each guard was to perform.[278]

225 It may be noted that the above submission includes no specific contention that Naje, Floran, Raad and Sabah were 'employees' of the second defendant, although, to some extent, the submission that the second defendant was the 'true power' might be thought to be of similar practical effect.

226 That said, the submission directly picks up and refers to part of the evidence given by Leo that, elsewhere, the plaintiff appeared to submit was not fairly put, and so should not be accepted.[279] I have earlier rejected the submission that there was any degree of unfairness such that that evidence should not be accepted.

(a) the second defendant had a system for security on the night, albeit that it was 'not written down';

(b) that system comprised 'sixteen security guards on duty until 1am, fifteen security guards until 1:30am, and three security guards thereafter';

(c) Leo gave a 'briefing/instructions' to Naje at the start of the night; and

(d) the security guards were trained to deal with fights, and it would not have been desirable for Leo to have sought to prescribe what trained security guards should do in that situation.[280]

228 I have already referred to the general unreliability of the evidence of Naje and Floran on this topic. Conversely, I consider the relevant evidence of Sami and Leo to have been generally reliable.

(a) Naje was a licenced security guard and the security contractor for the function centre between 2011 and 2019;[281]

(b) in that regard, Naje was 'in charge' of security and would 'organise all the security' needed for a particular function;[282]

(c) in particular, Naje determined how many guards were required and arranged for that number of guards to attend;[283]

(d) Sami would pay Naje a sum in cash and, in turn, Naje would pay each of the guards for their services on the night;[284]

(e) neither Naje nor any of the guards arranged by him were employees of the second defendant;[285]

(f) security was retained by reference to the following formula -

The first hundred we always organise two security guards ... and then after each hundred we get another security guard.[286]

(g) after arriving on the particular night, Sami would have a discussion with Naje about security;[287]

(h) normally, the procedure was -

... just to look after [the] car park and to be around the room checking if someone's got drunk or anything's happened, they can, you know, take them out, contact police or ambulance if anyone needs help.[288]

(i) there were no relevant written procedures.[289]

230 Further, in respect of the concert on 6 and 7 December 2019, I accept that -

(a) the normal procedures were modified slightly having regard to the contractual and other arrangements made between the promoter and second defendant;[290]

(b) two earlier concerts arranged with the same promoter had passed without incident and the security arrangements on those occasions were similar to those put in place on 6 December 2019;[291]

(c) in that connection, the promoter arranged for 12 security guards to attend on the evening of the concert;[292]

(d) Sami told Naje to organise four security guards 'from our side';[293]

(e) for much of the night there were 16 security guards present;[294]

(f) most of the people who attended the concert on 6 December 2019 were Muslim and so did not drink alcohol - Sami said that 'probably out of the 700, maybe 200 of them, they drink';[295]

(g) there was a corkage fee in respect of alcohol brought into the function centre by guests;[296]

(h) there were other security procedures on the night, including scanning 'everyone who comes in' with a wand;[297]

(i) the two groups of security guards 'work[ed] together' to work out 'how they [were] going to run the whole thing';[298]

(j) Sami attended the concert as a guest, albeit that he ultimately gave certain directions to and in respect of the security guards;[299]

(k) Leo was the floor manager and undertook the security briefing with Naje;[300]

(l) the protection of guests at the function centre was a 'shared responsibility';[301]

(m) that said, Leo bore 'principal responsibility' because he could overrule Naje;[302]

(n) after the concert finished, the guests were leaving or had largely left, and, consequently, the number of security guards on duty was reduced;[303] and

(o) there were no problems prior to the Corkage dispute.[304]

231 I have earlier noted that, by the escalated phase of the Corkage dispute, there were no guests left in the 'Oasis room', the singer and the 12 security guards provided by the promoter had gone, there were a few guests in the foyer purchasing photographs and the security guards remaining on duty were Floran, Sabah and Raad.

232 In that context, and in respect of the prospect of 'fights' -

(a) there was no evidence that there had been fights at either of the two earlier concerts;

(b) more broadly, in answer to the suggestion that there had been previous 'fights' at the function centre, Leo said -

Well, not a lot, not really, no, there's been maybe a few over the past 10 years that we've owned it, but that's about it.[305]

(c) Leo thereafter confirmed that there had 'maybe' or 'possibly' been fights on three or four occasions over a period of 10 years;[306]

(d) there was nothing about the terms and tone in which that or the other evidence about previous 'fights' was given[307] that tended to suggest that -

(i) any of those instances had involved a circumstance in which miscreants had left the premises and later returned intent upon very serious violence;

(ii) any of those instances involved anything like the extreme violence that erupted during the Brawl; or

(iii) the numbers of security guards present on any of the previous occasions had been insufficient to deal with those situations appropriately and definitively;

(e) while Sami would usually conduct the security briefing, and did give an order during the Brawl, it was the 'job' of security to 'kick them out' [meaning Elley, Kakoz and probably also the plaintiff];[308] and

(f) consistently with that evidence -

(i) when asked about the direction given to him by 'the employers' concerning 'a system to follow if there's a fight', Naje said '... really we know our work' and that in past incidents '[w]e tried to stop the fight';[309]

(ii) Floran also said that, as security, 'we know what to do in terms of fight' and that Sami and 'La Mirage' did not tell the security guards 'what to do';[310]

(iii) Floran confirmed that he had been trained in how to deal with fights while obtaining his security qualifications;[311]

(iv) Mr Smith confirmed that the response to an incident required 'tactical flexibility', which was taught during security training;[312] and

(v) in that regard, Mr Smith stated further that -

... you wouldn't want a person who has no experience in that area, such as a venue manager, telling security how to perform physical evictions. That's what the security training and the defensive tactics unit that they do within their licencing training is for. So this is what you employ professional security personnel to do on the expectation that they know how to ... deal with fights.[313]

233 In the circumstances, while I accept that Leo had a briefing with Naje concerning security arrangements on the night, no part of that is likely to have dealt with the 'system' required to be implemented in the event of a fight, other than that the police or ambulance service should be called, as required.

234 In that connection, if it be relevant, I should say that I accept that at least one telephone call was made to police after the Corkage dispute and before the eruption of the Brawl.

235 As I have indicated, during the trial, the plaintiff tended to suggest that no call was made at that time, and reference was made to the statement of Constable Whelan and the paragraph concerning the receipt by Broadmeadows police of a job from Police Communications at 1:47am.[314]

236 From what I have already said, it will be evident that the call from Police Communications must have concerned the 000 calls received in respect of the Brawl.

237 In any event, at the very least, I accept the evidence of Leo that, after the Corkage dispute, he telephoned 000 - the making of which call, he intimated, could be seen in the Camera 16 footage.[315]

(a) the plaintiff contended that the re-entry of Elley and Kakoz (and, in due course, the plaintiff) into the foyer was to be explained, for the most part, by a broken or malfunctioning foyer door;

(b) in that regard, albeit that the content of it was not precisely the same, and notwithstanding Naje's later disclaimer of his recollections in respect of the door, the plaintiff placed reliance upon (parts of) the evidence of Naje and Floran respectively; and

(c) I do not consider any of that evidence to be reliable.

239 The plaintiff otherwise advanced a somewhat undeveloped contention to the effect that the foyer door was open and/or inadequately supervised or 'stationed' such that Elley, Kakoz and, in turn, the plaintiff, were able to re-enter.[316] To some extent, that contention was sought to be advanced by taking issue with evidence given by Sami, in particular, that Elley and Kakoz had broken or forced the door in order to obtain re-entry.[317]

240 In the circumstances to which I have already referred, I accept the evidence of Sami that -

(a) the foyer door of the 'Oasis Room' was not broken;[318]

(b) the door of the 'Sapphire Room' was broken;[319]

(c) the foyer door of the 'Oasis room' could be locked by lifting a latch or handle;[320]

(d) after the concert finished, the sensor relating to the foyer door was turned off and the opening and closing of the door was made manual;[321]

(e) in that regard -

... usually security, they turn it off so they don't let anyone come back in, but they open the door for the number of the people leaving so they can - then the door close and open, so they can go out, and then they will lock the door.[322]

(f) after the Corkage dispute and the removal of Elley and Kakoz, Sami directed that the foyer door be locked by putting up the latch and said to Sabah '[d]on't let anyone in'; [323] and

(g) there was no problem locking the door.[324]

241 Leo gave briefer but relevantly similar evidence.[325]

242 The plaintiff's contentions concerning the open and/or inadequately supervised or 'stationed' foyer door seem to have been advanced primarily by reference to the Camera 16 footage - which was said to show 'dozens of people entering and exiting the doors of the premises' and Kakoz, Elley and others re-entering 'without resistance from any door'.[326]

243 As I have earlier noted, the Camera 16 footage is taken from a point above the foyer door and does not show it directly. Consequently, it is not possible to see whether, at any particular point, the door is open or closed, locked or unlocked, or 'stationed' or 'unstationed'.

244 That said, at points after the Corkage dispute, guests and others are seen to pass through the area where the foyer door must be.

245 Obviously enough, the door must have been open in order to allow such access to occur. However, it does not follow that the door was not earlier locked, or, at various points, re-closed and re-locked. Nor does it follow that the door was unsupervised, or inadequately 'stationed'.

246 In that connection, it is evident from the Camera 16 footage that -

(a) by the time of the apparent departure of Kakoz and the plaintiff from the forecourt into the darkness of the car park following the Corkage dispute (at about 7.27), the crowd has thinned considerably;

(b) at 7.34, Leo is seen to re-enter the area of the door, albeit that an arm - possibly of a security guard - might be seen to usher him through together with others;

(c) some guests are thereafter seen to exit, and others seem to re-enter, including a lady with a handbag who appears to slow up, perhaps needing to negotiate a guarded entrance (7.42);

(d) at about 7.44, 'Moffa' is shown waving his hand - which Sami said was to indicate that 'the troublemakers' had left;[327]

(e) after about 8.04, relatively few people are seen to come and go, and it is not easy to determine, conclusively, whether those seen to come and go might have needed to negotiate with security in order to do so;

(f) that said, several of those who thereafter come to the foyer door seem to approach slowly, or to slow up, either of which could be consistent with having to negotiate re-entry (for example, 8.30, 8.42, 9.54, 10.15, 10.57, 11.29 and 12.01);

(g) an exception may be Naje, who is seen to re-enter at 9.07, as well as, at 11.06, another security guard or perhaps staff member of the second defendant. It is obvious enough why such persons might not have needed to negotiate much in order to re-enter;

(h) at 12.33, Leo is seen to walk out, on the telephone, and he is followed by Sabah and another man with a vertically striped shirt;

(i) Leo may re-enter at 12.39, although he is still on the telephone, and approaches the door slowly - again, it is unsurprising that he might not have needed to negotiate much in order to re-enter;

(j) the other two men, including Sabah, remain in the forecourt and, at about 12.53, see and approach Elley and Kakoz in the gloom of the car park and efforts are thereafter made to dissuade Elley and Kakoz from re-approaching the door;

(k) at 13.02, Elley pushes away and runs at the door while reaching to his right hip (which, I note, is the same location from which, in the 47 second video, at 0.29, he is seen to extract the extendable baton);

(l) Kakoz follows Elley, and Sabah does likewise, together with the man with the vertically striped shirt (13.05); and

(m) at 13.21, the plaintiff is seen to sprint across the forecourt towards and then presumably through the area of the foyer door.

247 It will be evident that no one is seen to approach the foyer door at any great speed, until Elley followed by Kakoz and others, and shortly thereafter, the plaintiff.

248 While the features to which I have referred are not conclusive, they do not suggest that the door could not have been closed and locked at any point; nor do they suggest that the door was unsupervised or inadequately 'stationed' when it was open.

249 If anything, I tend to think that the footage is more consistent with the door having remained supervised when it was open.

250 In that regard, the emergence of Sabah (and Leo, together with the man with the vertically striped shirt) at a point shortly prior to the return of Elley, Kakoz and the plaintiff (12.33) is indicative of an ongoing endeavour to monitor the entry point.[328]

251 Further, the manner in which the men went out onto the forecourt would suggest that they were intending to survey the area relatively briefly before returning to the door, or foyer (which is what Leo may well have done).

(a) it seems more likely that the foyer door would not have been locked behind them at that time;

(b) however, it also seems unlikely that the foyer door would have been left entirely unsupervised behind them;

(c) even if it was, supervision by Sabah from the outside of the door, as it were, would not amount to no supervision at all; and

(d) in the circumstances, it is not obvious that supervision of that kind would amount to the door being inadequately 'stationed'.

253 In that context, it is perhaps unsurprising that the plaintiff sought to bolster the contention that the door must have been open and unsupervised, or inadequately 'stationed', by pointing to the relatively swift re-entry of Elley and Kakoz implicit in the Camera 16 footage together with taking aim at other aspects of the evidence, particularly that of Sami and Leo.

(a) in chief, Sami gave evidence that when 'they' returned the door was 'closed', but that Kakoz and Elley were 'standing and punching the glasses' and 'forcing to get in', following which Sami was punched and fell to the floor;[329]

(b) subsequent cross-examination was directed to the suggestion that someone, perhaps a guest, might have opened the door, to which Sami answered somewhat incoherently (in that regard, he said that he was not sure who had 'opened' the door, then observed that 'a few' people had walked out, then speculated that the door had been left open and then appeared to again confirm that the door had been 'forced');[330] and

(c) Leo said that he was 'not too sure' how Elley and Kakoz had got through the door, although he had earlier been taken to the Camera 16 footage at 12.56 and said 'I can see ... people trying to hold them back but they broke through and they went through that door'.[331]

255 As I have indicated, the circumstances in which Elley and Kakoz re-entered the foyer seem to have been relatively swift. As essentially submitted by the plaintiff, the relevant part of the Camera 16 footage does not tend to suggest that either Elley or Kakoz or both of them spent any significant period of time 'punching the glass' or 'forcing the door open' in order to re-enter the foyer.

256 That said, the manner in which they evidently approached and re-entered the foyer is not inconsistent with Elley, in particular, having threatened and pushed past any guards and others at the door; particularly in circumstances in which he was then carrying an extendable baton and might be seen to reach for it at the critical part of the Camera 16 footage.

257 Of course, a very traumatic Brawl thereafter unfolded. Among other things, Sami was quickly struck to the ground and evidently did not immediately recall who struck that blow or blows. Other serious and alarming violence ensued, and a short time later the men were again ejected. Kakoz then used a long metal stake to smash the foyer door and/or adjacent window.[332]

258 In the circumstances, I conclude, perhaps unsurprisingly, that -

(a) Sami has a fragmentary and confused memory of the re-entry of the men into the foyer and the subsequent events of the Brawl;

(b) Sami may have confused the return and re-entry of Elley and Kakoz with aspects of the violence involved in the subsequent assault by Kakoz upon the window and/or door;

(c) I cannot attach any particular significance to Sami's evidence concerning the re-entry of Elley and Kakoz and the subsequent events of the Brawl; and

(d) in particular, to the extent that it might be thought to be any more than wholly speculative, I do not accept the evidence of Sami that 'one of the guests' might have let Elley and Kakoz into the foyer.[333]

259 The relevant evidence of Leo is in a slightly different category. I do not find it very surprising that, in the circumstances, he cannot now remember precisely how Elley and Kakoz came to re-enter the foyer.

260 However, with the assistance of viewing the relevant part of the Camera 16 footage, Leo did refer to events shown on the forecourt and say that Elley and Kakoz 'broke through'. That evidence struck me as more consistent with Elley and Kakoz having 'broken through' whatever was at and around the foyer door, including that which is shown on the forecourt, than with any proposition that they simply ran through an open or entirely unsupervised door.

261 Of course, that aspect of Leo's evidence was not explored any further (which is a general problem in the evidence relating to the re-entry of Elley and Kakoz into the foyer).

262 In that overall context, it seems to me to be of considerable significance that at no point was it suggested to Leo (or Sami, for that matter) that the foyer door was unsupervised or inadequately 'stationed'.

263 That said, albeit that, regrettably, the evidence on the topic was underdeveloped, such relevant evidence as was received does seem to me to be more consistent with Elley and Kakoz having 'broken through' security and perhaps other staff at and around the foyer door, as opposed to the door having been entirely unsupervised or inadequately 'stationed'.

(a) it was evident from Sami's earlier evidence concerning the system of security (which I accept) that the foyer door would be switched to manual after a concert, and guests would not be allowed to re-enter 'unless they missed something inside of the room after 1 o'clock';[334]

(b) it was also evident from Sami's earlier evidence in respect of the period immediately after the Corkage dispute (which I also accept) that he directed Sabah 'not to let anyone in';[335]

(c) while there are parts of his evidence that I do not accept, Floran gave evidence that 'we', meaning the security guards, had tried, 'as much as we ... [could] to not let people in because of the first fight' - which seems to me to be both consistent with the video evidence as well as inherently likely, and I therefore accept it;[336]

(d) similarly, it was implicit in Floran's evidence-in-chief that he was close at hand when Elley and Kakoz re-entered[337] and Floran plainly said that 'me and him' (meaning he and Sabah) had tried to stop the Brawl taking place but 'we couldn't';[338]

(e) as with Sami and Leo, it was not discernibly or directly sought to be established via the evidence of Floran that, at any relevant point, the door had been insufficiently supervised;

(f) as I have noted, it is evident from the Camera 16 footage that Sabah was a short way outside the door on the forecourt and so might be taken to have been, in effect, supervising the door from the front - indeed, he attempted to shepherd Elley away from the door, albeit without success;

(g) it is evident from the 47 second video (which, as I have noted, was taken during the Brawl) that inside the foyer door there must have been a system of tables, bollards and ropes directed to controlling access;[339] and

(h) as I have earlier noted, the One second video shows the area inside the foyer door a matter of seconds after the commencement of the Brawl, and Sabah and Floran (and Naje) are shown proximate to the foyer door.

(a) Sabah may be taken to have been supervising the door from the front, but the relative ease with which Elley and Kakoz pushed off and therefore got beyond him and the other men present tends to underline the fact that, in the circumstances, the options available to the security guards (who, it was common ground, must have been unarmed) were very limited to non-existent;

(b) Floran, at least, was likely to have been proximate to the foyer door at the time at which Elley and Kakoz re-entered;

(c) like Sabah, Floran and anyone else proximate to the foyer door were very likely brushed aside by Elley - which, in turn, led to Kakoz re-entering the foyer in Elley's wake;

(d) in that regard, in the One second video, Kakoz and the plaintiff appear to be inside the foyer and slightly past Floran, who is slightly behind the plaintiff, and Kakoz and the plaintiff are there facing off with Leo while Sabah is seeking to place his arm between the plaintiff and Leo; and

(e) Floran and Sabah, in particular, (as well as Raad) very likely did what, in the circumstances, they were respectively trained and able to do in order to prevent the re-entry of Elley and Kakoz as well as to quell the Brawl.

266 In the circumstances, even if it was open and unlocked at the time, I cannot accept that the foyer door was wholly unsupervised or inadequately 'stationed' at the point at which Elley and Kakoz re-entered the foyer.

267 For completeness, I should add that I do not accept the submission of senior counsel for the plaintiff that the foyer door was 'shut' during the period shortly prior the plaintiff being stabbed.[340]

268 Among other things, of course, that submission conflicts with the plaintiff's primary submission that the door was broken.

(a) it is plain enough from the 47 second video (0.12) that the foyer door was open at about the point at which the plaintiff was stabbed;

(b) I would conclude that the door is likely to have been in that state since at least the point, less than a minute before, at which Elley and then Kakoz 'broke through' and re-entered the foyer;

(c) Leo gave evidence, which I accept, that the plaintiff 'could have just ... walked out if he wanted to';[341] and

(d) in cross-examination, the plaintiff conceded that that he had the opportunity to leave prior to being stabbed.[342]

270 The plaintiff's role in the Brawl was described by his senior counsel in closing address as follows -

(a) the plaintiff re-entered the foyer 'to make sure that no further untoward trouble or events were instigated by Elley and Kakoz';

(b) 'at no time did the plaintiff engage in any physical assault of any person';

(c) instead, the plaintiff was attacked and stabbed when he was 'speaking' to Jamal and 'trying to negotiate to avoid that aggression'; and

(d) none of the plaintiff's behaviour represented a threat to Jamal.[343]

271 As I have earlier indicated, many aspects of that overall contention cannot be accepted. In particular -

(a) I do not accept that the plaintiff re-entered the foyer 'to make sure that no further untoward trouble' occurred - among other things, at no relevant point in any of the videos is the plaintiff seen trying to physically restrain and remove either Kakoz or Elley from the foyer; and

(b) I also do not accept that the plaintiff was merely 'speaking' to Jamal and 'trying to negotiate' when he was stabbed, or that Jamal could not reasonably have considered the plaintiff to have been a threat to him - among other things, the 47 second video shows that the plaintiff stood alongside and in front of Kakoz during the standoff with Jamal, in the course of which he made no attempt to restrain or remove Kakoz, and, immediately thereafter, stepped towards and into the path of Jamal while waving his finger at him, while the latter was brandishing a large bloodied kitchen knife and moving with intent towards another fight involving Kakoz.

272 In any event, the submission that the plaintiff 'was not involved in the fight' seemed to be the central point[344] and, in context, that was directed to the question of whether the plaintiff had struck Sami shortly prior to participating in the standoff with Jamal.

(a) the plaintiff said that he 'did not lay one hand on nobody';[345] and

(b) Floran said that the plaintiff had not acted aggressively or threatened 'anyone'.[346]

274 I do not consider any of that evidence to be reliable.

275 For his part, Sami was firmly of the view that the plaintiff punched him, although it did seem to be a conclusion that he had reached only after viewing the One second video.[347]

276 In that regard, Sami said that he did not recall the plaintiff's involvement until he saw 'the footage'. However, having seen it, he was implacably of the view that it was the plaintiff who had punched him and caused him to be splayed on the floor. In that connection, he said to the cross-examiner '[p]lay the footage and you can see what's happened'.[348]

277 Whatever might else might be said about that evidence, it will be apparent that I am of the view that Sami's evidence relating to the events of the Brawl should be approached with very great caution.

278 On the other hand, while the One second video is very brief, and does not seem to show the plaintiff actually striking Sami, it does show -

(a) a fight in progress;

(b) Sami splayed on the floor immediately behind Leo;

(c) Leo standing in front of Sami, facing the plaintiff and evidently intent upon defending Sami;

(d) the plaintiff facing Leo and plainly close enough that Leo is seen to swing and punch the plaintiff in the face;

(e) at the same time, Sabah seeking to intervene by placing his arm between Leo and the plaintiff; and

(f) Kakoz to the left of the plaintiff and slightly further away, although he is reaching out to Leo (who is beyond his reach).

279 For their part, counsel for the plaintiff submitted that it was more likely that Sami had been struck by Kakoz.[349]

280 I have watched the One second video now on countless occasions. To me, there is something about the dynamics of that very brief scene that suggest that Leo is retaliating angrily and violently in response to the plaintiff having felled his father. In that sense, rather like Sami, I do think that the video suggests (pretty clearly) that the plaintiff, rather than Kakoz, struck Sami causing him to be splayed on the floor.[350] In particular -

(a) Leo is directly between Sami and the plaintiff, not Kakoz;

(b) Leo is facing the plaintiff, not Kakoz;

(c) the plaintiff is facing Leo, not Kakoz;

(d) Sabah is seeking to put his arm between Leo and the plaintiff, not between Leo and Kakoz;

(e) Leo punches the plaintiff, not Kakoz; and

(f) Leo is out of the reach of Kakoz.

281 In addition, Leo gave straightforward evidence concerning this aspect of the Brawl. In that regard, he said that the plaintiff was 'the last one that hit my dad before he fell',[351] and was not moved in cross-examination. Among other things, he said that he believed that the plaintiff had attacked his father because he had seen it.[352]

282 I am conscious of the caution that should be exercised both in respect of Leo's evidence concerning the events of the Brawl and before making a finding of the present kind.[353] That said, I am satisfied that the plaintiff struck and thereby assaulted Sami shortly prior to his involvement in the standoff with Jamal.

283 As earlier noted, the plaintiff claims against the second and third defendants in respect of injury as a consequence of -

(a) breach of their respective common law duties of care to the plaintiff, as a patron, to exercise reasonable care for his safety; and

(b) breach of their respective duties of care pursuant to s 14B of the Wrongs Act to take such steps as were reasonable in all of the circumstances to see that the plaintiff was not injured by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises.[354]

284 From that very broad beginning, it was ultimately apparent that the only substantial contention advanced against the third defendant concerned the foyer door.

285 In that regard, senior counsel for the plaintiff submitted that 'the door is the responsibility of the third defendant' (alternatively the second defendant), and that Kakoz and Elley had been 'allowed back into the premises because the door was not functioning correctly'.[355]

286 Whatever might be said about responsibility for the foyer door, it will be evident that I do not accept that it was 'broken' or not 'functioning correctly'. On that basis alone, the claim against the third defendant in respect of the foyer door must be rejected.[356]

287 In any event, Sami gave evidence that the third defendant was not involved and that the foyer door was relevantly the responsibility of the second defendant.[357]

288 I do not consider that evidence to be displaced by any of Dr Zalewski's assertions to the contrary. Indeed, that part of Dr Zalewski's evidence, if it be evidence, went very close to asserting that the third defendant owed a broad and, in effect, non-delegable duty to the plaintiff in respect of the manner in which the second defendant 'operates within the premises'.[358]

289 That, of course, was asserted in circumstances in which it seems pretty apparent that shortly prior to the provision of his first report, Dr Zalewski was involved in discussions with his instructors in respect of the plaintiff's case against the third defendant in the course of which concerns seem to have been expressed that the case against the third defendant was 'less clear', 'less than the first [sic: second] [d]efendant' and 'not strong'.[359]

290 It is presently sufficient to say that I prefer and accept the more directly relevant and specific evidence of Sami.

291 It follows that from whichever direction the claim against the third defendant in respect of the door is approached, it must fail.

292 The only other specific contention made against the third defendant seemed to be a faint submission to the effect that the 'staff numbers' - meaning, it seems, the number of security guards on duty at relevant points during the night - should have been determined 'in conjunction between the second defendant and the third defendant'.[360]

293 That contention was not pursued with any clarity in the evidence of Sami or Leo, in particular, and it is not at all apparent how, in a practical sense, any such collaboration should have operated, especially on the night. There was no evidence that any employee or other representative of the third defendant was working on the night, or even present.

294 In any event, it was plain enough that the second defendant took on the responsibility of retaining security guards in conjunction with Naje, both in respect of the night of the concert and generally, albeit that on the night of the concert the arrangements were, to some extent, affected by the contract and other arrangements in place between the second defendant and the promoter.

295 The third defendant was not a party to that contract, or those arrangements, and there was really nothing beyond the broadest of assertions in address that the involvement of the third defendant could or would have affected the arrangements on the night, including in respect of the numbers of security guards retained at various points.

296 On the evidence, I do not accept that the number of security guards on duty on the night should have been determined between the second and third defendants.

297 Otherwise, while the plaintiff's closing submissions were apt to refer to 'the defendant',[361] on the evidence, none of the other claims made seem to have been either relevant or directed to the third defendant.

298 It follows that the plaintiff's claim against the third defendant must fail.

299 As to the claim against the second defendant, I have noted that the plaintiff relied upon the common law and s 14B of the Wrongs Act.

300 In argument, the plaintiff drew no relevant distinction between those two duties or their respective scopes. Indeed, the plaintiff's argument tended to treat them as essentially co-extensive and each sufficient to support the arguments advanced.

301 Whether that approach was strictly correct is unnecessary to determine. It is presently sufficient to address the overall argument.

302 In that connection, in closing address, senior counsel for the plaintiff relevantly contended that -

(a) the 'criminal conduct' of Jamal was attended by 'a high degree of foreseeability, because the weapon is being wielded wildly';[362]

(b) 'the defendant' was 'on notice' because there had already been a violent incident, namely the escalated phase of the Corkage dispute;[363]

(c) the plaintiff did not bring the stabbing on himself 'in any way';[364]

(d) there was no sufficient basis upon which it could be found that the plaintiff had engaged in 'illegal activity' within the meaning of s 14G of the Wrongs Act;[365]

(e) the plaintiff was 'bound to extract' the other two men from 'the troubles they were getting themselves into';[366]

(f) based upon the evidence of Dr Zalewski, there was a 'failure to have in place practical solutions to potential problems at an early point in time';[367]

(g) once Naje had departed, the security arrangements 'fell increasingly into disarray';[368]

(h) the estimation of Dr Zalewski that there should have been 'six or seven' security guards was 'entirely correct' and, consequently, the Corkage dispute had escalated and not been 'placated' or 'put down' and the situation had then escalated when Elley and Kakoz returned and 'began engaging in more violent behaviour';[369]

(i) in that general connection, further security personnel should have been retained after the Corkage dispute;[370]

(j) as reported by Dr Zalewski, the 'breakdown in the system of security' had occurred 'as events deteriorate[d]';[371] and

(k) the 'descent into mayhem' within a short period of time was 'a stark indication in itself ... of the inadequacies of the systems provided'.[372]

303 It will be apparent that the various submissions and assertions had a rather 'scattergun' quality that was not alleviated by the shifting and other qualities in the argument to which I have much earlier referred.

304 In any event, it will be evident that Dr Zalewski's opinions were central to several of the above submissions, and that was similarly apparent in the plaintiff's outline of closing submissions that identified and sought to emphasise what were described as Dr Zalewski's 'primary criticisms' of the '[d]efendant's system of crowd control', namely -

(a) The lack of a proactive (as opposed to reactive) system for crowd control.

(b) That the last two hours of trade is a crucial time, where sufficient security resources are required.

(c) That 3 crowd controllers are required to control one aggressive male person.

(d) That it was inappropriate to have 3 security staff covering the entire venue at the time of the first and second incidents [ie, the Corkage dispute and Brawl], rather that 6 or 7 security ought to have remained until 2 pm [sic: 2 am] and that would not have been unreasonably costly (T420-421).

(e) That crowd controllers are the interveners, rather than others (such as venue staff) who can also watch and report (cf: evidence of LY [Leo] to the effect that security staff were there to simply witness and report).

(f) That he disagrees with the opinion of Mr Smith that it was appropriate to reduce the number of staff towards the end of the shift as statistically the last two hours of trade are the most high-risk in respect of physical violence. Further that 12 am to 3pm [sic: 3 am] on Friday to Saturday are the most high-risk time (Ex. D10, p.4).

(g) In respect of the operation of the door [ie, the front door to the foyer of the Oasis room], it is the responsibility of the owner to ensure that physical measures such as CCTV and the locking mechanism of the door are working.

(h) That the Defendant's system of crowd control was not documented and that he has never, ever seen a system that's effective that's not documented (T420.1-15).

(i) The lack of co-ordination between the two groups of security guards (T421.12).

(j) That the evidence of [Naje] Koru reinforced his opinion of the informal style of security provided at the premises and misunderstanding as to processes and who's in charge (T422.1-6).[373]

305 I should note, for completeness, that the plaintiff's outline of closing submissions included (or, more accurately, might be thought to have floated) a few further underdeveloped or remnant liability arguments, particularly, as I have earlier noted, the contention that the supervision and/or 'stationing' of the three security guards on duty at the time of the Corkage dispute and subsequent Brawl was 'less than adequate'.[374]

306 From what I have already said about the alleged duties and their respective scopes, it will be evident that the plaintiff's various submissions touched upon the legal principles relatively lightly, particularly the applicable provisions of the Wrongs Act. In reality, it was apparent that the plaintiff was seeking to win the case by reference to what seemed to be thought to be argument of a relatively normative kind, combined with the persuasive force of the evidence called by the plaintiff, particularly that of Dr Zalewski.

307 In that context, whatever might be said about the precise legal underpinnings of the plaintiff's case, the present problem is that much of the plaintiff's evidence, as well as most of the above contentions, cannot be accepted.

308 In that connection, I have already discussed, at considerable length, the very real problems and limitations in the evidence of the plaintiff, Naje, Floran and

Dr Zalewski respectively.[375] Consequently, it can be said at the threshold that there was ultimately little in the way of an evidentiary foundation capable of being accepted in order that the plaintiff's overall argument might be made out.

309 In any event, there are points that probably should be made concerning various elements of the argument outlined above.

310 In that regard, the 'wild wielding' of the knife by Jamal occurred during the Brawl. I accept the submission of senior counsel for the defendants that there is a 'temporal disconnect' between that event and what must have been reasonably foreseeable at any earlier and relevant time.[376]

311 In addition, Jamal was not an employee of the second defendant, and while Floran (who was also not an employee of the second defendant) gave evidence that he saw that Jamal had 'something' under his jacket that later proved to have been the knife (which claim I do not expressly accept),[377] there was no evidence that any concern relating to that 'something' was communicated to Sami, Leo or any other employee of the second defendant.

(a) the escalated phase of the Corkage dispute was not 'put down' or 'placated'; and

(b) the second defendant was thereafter 'on notice' that there might be a real risk of another violent incident, let alone the alarmingly violent brawl which, in fact, occurred, and which Elley attended armed with a baton.

313 While it may be accepted that, after the Corkage dispute, Kakoz and Elley continued to harbour ill will towards at least Jamal, it does not follow that the Corkage dispute was not appropriately 'put down'. After all, Kakoz and Elley were evicted from the foyer, shepherded away from the forecourt, and got into Elley's car and were seen to leave.

(a) Sami and Leo each gave evidence that they did not expect the men to return;[378]

(b) Mr Smith gave evidence that -

... it's highly unusual that when people are removed from the premises, jump in their car and then drive away from the premises, that they return.[379]

(c) Dr Zalewski may also have accepted that it was not unreasonable to have believed that the incidents had ceased.[380]

315 There was otherwise muted evidence of 'a few' fights having occurred at the function centre over a period of 10 years, and there was nothing which suggested that there had ever been an incident remotely like the present one.

316 Further, the relevant parts of the Camera 16 footage are much more consistent with the passing and end of any such incidents on the night, in that -

(a) some minutes passed after the eviction of Elley and Kakoz, during which there seems to have been a calming of hostilities;

(b) in particular, Elley and Kakoz each attempted to re-approach the foyer door but were shepherded away and into the gloom of the car park;

(c) a group of men returned from the car park, including 'Moffa', who signalled with his hand that the men were going or gone; and

(d) some further minutes then passed in which there was essentially no activity of any note.

317 In the circumstances, I accept the relevant evidence of Sami, Leo and Mr Smith, and do not consider the belief of Sami and Leo to have been unreasonable.[381]

318 I do not accept that the system of security 'fell increasingly into disarray' after Naje departed, or that there was any relevant 'misunderstanding as to processes' or as to who was relevantly 'in charge'.

319 Naje was, of course, still present when the Brawl commenced, although he had earlier signed off.

320 In any event, Sami and Leo plainly understood the function of security at such an event. Both gave evidence of the 'formula' by reference to which numbers of guards were to be appropriately assessed.

321 Further, even within the limitations of their presentations as a witnesses, neither Naje nor Floran said that the system of security fell relevantly into 'disarray'.

322 For his part, as I have earlier noted, Naje was directed to the question of 'fights' and said 'really we know our job'.[382] He was plainly referring to himself and the other security guards. He did not say that after he left, Floran, Sabah and Raad would have been any less able to do that for which they had evidently been trained.

323 Similarly, Floran said that '[a]s a security, we know what to do in terms of fight'.[383] It was plain that he was of the view that it was not necessary for the second defendant to instruct the security guards what to do in the event of a fight. He also did not say that the system was 'in disarray' after Naje left.

324 I also do not accept the assertion that the plaintiff did not bring the stabbing on himself 'in any way'. While the plaintiff appears to have backed himself not to end up being stabbed, that does not mean that there was not a very real and obvious risk of it.

(a) the plaintiff ran into the foyer after Elley and Kakoz while a major fight was plainly in the process of erupting;

(b) I cannot accept that the plaintiff was 'bound to extract' Elley and Kakoz 'from the troubles that they were getting themselves into' and, of course, he is not seen to do so;

(c) instead, the plaintiff joined in the fighting by, at the very least, striking Sami and, in turn, being struck by Leo;

(d) it seems very likely that his participation in that aspect of the fight was seen by Jamal;

(e) whether that occurred or not, the state of the plaintiff's shirt by the time he is seen to be involved in the standoff with Jamal is indicative of him having been involved in a violent physical altercation[384] - and the condition of his shirt must have been seen by Jamal;

(f) the plaintiff stood essentially alongside Kakoz (or in front of him) during the standoff with Jamal, and did not restrain Kakoz in any way, including while Kakoz struck out at Jamal with a belt;

(g) during the standoff, the plaintiff said to Jamal that it was better to fight outside without the knife and 'like a man';

(h) during the whole of the standoff, Jamal is plainly seen to be waving a large bloodstained knife which, implicitly, has already been used to stab at least one other person;

(i) the plaintiff conceded that he saw the blood on the knife and that 'obviously it was ... one of us that was stabbed';[385]

(j) in those circumstances, practically everyone else in the relevant part of the

47 second video is seen to appreciate the serious risk posed by Jamal and the knife - among other things, persons who look like staff members are shown to be edging along the far wall seeking to flee to safety (0.00-0.05) and, for his part, Floran said that, after seeing the knife -

(i) he was 'not going to touch no-one' (meaning Jamal);

(ii) he sought to 'go far away'; and

(iii) it was common sense to move away from a person who has a knife;[386]

(k) like the staff members to whom I have referred, the events and circumstances shown in the 47 second video demonstrate quite clearly that the plaintiff could have retreated from Jamal and sought an exit to safety - which, in substance, the plaintiff ultimately conceded; and

(l) instead, the plaintiff remained in a zone of very acute danger proximate to Jamal and the knife, and then stepped towards and perhaps into the path of Jamal in circumstances in which he may well have been understood by Jamal to be about to physically prevent him from seeking to intervene in another fight involving Kakoz.

326 In those circumstances, whatever else might be said about the plaintiff's claimed state of mind at the time, he plainly put himself in harm's way and at very grave risk of exactly what subsequently ensued. In my view, there is much to be said for the proposition that the plaintiff recklessly courted the risk of very serious injury and, in a practical sense, brought his subsequent injuries upon himself.

327 For completeness, I should perhaps indicate that I cannot accept the plaintiff's various assertions to the effect that he was not aware of the risk of being stabbed.[387] Whatever else might be said about that evidence, in cross-examination the plaintiff appeared to acknowledge that 'anybody' could have been hurt by Jamal and his knife, which, the plaintiff suggested, should be taken to explain certain of his actions seen in the

47 second video.[388] Implicitly, that was an acknowledgement that the plaintiff had known of the risk that Jamal might hurt 'anybody' with the knife, including him.

328 Finally, while the plaintiff sought to array several contentions against the proposition that he engaged in 'illegal activity',[389] on their face the statutory words are not restricted to specific criminal and/or statutory offences, and no such proposition is evident in the only directly relevant authority referred to in argument.[390]

329 Further, that submission, as well as the plaintiff's other contentions in respect of 'illegal activity', seemed to be directed to little more than an attempted distraction from the following -

(a) the plaintiff had attended a ticketed event in which his entry and exit had been controlled by security arrangements;

(b) after the eviction of Elley and Kakoz from the foyer, Floran directed the plaintiff to 'please, just go with them [and] leave'[391] - which, in submissions, the plaintiff effectively conceded;[392]

(c) having left the ticketed event, and been directed by Floran to take Elley and Kakoz and 'go', the plaintiff had no right to re-enter the foyer and, as Sami explained, would not have been permitted to do so unless he had 'missed' or forgotten something inside;[393] and

(d) in the circumstances, there does not seem to have been any legal or any other right, express or implied, for the plaintiff to re-enter the foyer, and certainly not in aid of a violent fight instigated by his friends.

330 In those circumstances, in simple terms, the plaintiff entered the foyer as a trespasser and assaulted Sami. [394] Those actions would seem to me to amount to the plaintiff engaging in 'illegal activity'.

331 Finally, the contention that the 'descent into mayhem' was 'a stark indication in itself ... of the inadequacies of the systems' amounts, in essence, to an assertion that the fact that the Brawl occurred at all was indicative of negligence or breach of duty on the part of the second defendant.

332 There was no pleading or other suggestion that the doctrine of res ipsa loquitur should have any present application. I do not mean to suggest that there could appropriately have been such a contention. In any event, I do not accept that the Brawl was the kind of event that would not ordinarily occur without negligence or breach of duty.[395]

333 In that overall context, the submissions of the second defendant helpfully identified and addressed various statutory provisions and principles. As I have indicated, however, the manner in which the plaintiff's case was pursued does not make it presently necessary to engage in any detail with all of the statutory provisions and other legal propositions.

334 In that regard, the second defendant admits that it owed the plaintiff a duty to take reasonable steps to protect him from reasonably foreseeable harm in connection with his attendance at the function centre for the concert.[396] From that point, it is presently sufficient to consider the plaintiff's claims of breach.

335 In that connection, the second defendant helpfully organised the plaintiff's claims in a manner that, in closing address, came to be further refined and delineated into three areas of particular contention, namely -

(a) 'the presence or absence of a written plan or risk assessment or some sort of written document' in respect of security arrangements and response;

(b) 'the number of security guards present at the relevant time and whether that was sufficient'; and

(c) 'the door, in terms of it being locked or otherwise'.[397]

336 Senior counsel for the plaintiff did not take issue with that delineation of the issues.

337 It will be apparent, of course, that the opinions of Dr Zalewski are relevant to each of the above areas of contention.

338 As I have earlier noted, it was not in issue that there were no relevant written plans, risk assessments or standard operating procedures.

Systems of security/crowd control at licensed premises are commonly introduced through a formalised (documented) and predictably structured system that flow from a risk assessment. A risk assessment is important as it assists the venue operator to identify, analyse, treat and review risks in and around the venue and therefore enhance safety and security of all persons present.[398]

340 Dr Zalewski later referred to training and standard operating procedures, including in respect of 'weapons' and 'aggression and violence'. In respect of the latter,

Dr Zalewski's report attached an example procedure entitled 'Aggression, Violence and Unacceptable Behaviour'.[399]

341 In that connection, Dr Zalewski stated that the second defendant should have taken precautions, including the development and introduction of protocols relating to 'removal of aggressive/disruptive patron(s)', so as to 'overcome the exercise of discretion by operational staff'. In his opinion, if 'an adequate system for crowd control' had been introduced, 'the incident involving injury to the [p]laintiff would have been avoided.[400]

342 Those assertions were essentially repeated in Dr Zalewski's second report, in response to the report of Mr Smith.[401]

343 Dr Zalewski's third report was directed to the oral evidence given by Naje, which was said not to alter Dr Zalewski's earlier expressions of opinion.[402]

344 The relevant part of Dr Zalewski's evidence-in-chief was similar to the highlighted aspects of his first report, as were parts of his evidence in cross-examination.[403]

345 That said, in cross-examination, Dr Zalewski said, among other things -

(a) if 'good practices' had been followed, 'none of us would be in this room today, no-one would be hurt';[404]

(b) the exercise of discretion by individuals was 'the weakest part of a system' which was 'why you have written documentation';[405]

(c) 'you don't give people documents to read. You brief them and then you supervise them appropriately to make sure that they are operationally sound';[406]

(d) 'of course' it is necessary for people to exercise discretion in a 'dynamic situation' of the present kind;[407] and

(e) in respect of the example procedure appended to his first report -

If a system is set up correctly, then there should be an intervention before the violence erupts. But as we know, sometimes violence is just spontaneous, you have no control, and you just have to intervene.[408]

346 For his part, Mr Smith relevantly acknowledged that it was 'best' to have 'things written down', although he also said that it was 'not uncommon' and 'not probably the norm' for such procedures not to be written. In the end, in his view -

(a) it was about 'getting the stakeholders together'; and

(b) in the present instance, written plans, protocols and procedures would not have made any difference.[409]

347 As Mr Smith explained in cross-examination, 'you want to have tactical flexibility so people are able to respond to the fluid and dynamic nature of a tactical response'.[410] In that connection, he later said -

... you wouldn't want a person who has no experience in that area, such as a venue manager, telling security how to perform physical evictions. That's what the security training and the defensive tactics unit that they do within their licencing training is for. So this is what you employ professional security personnel to do on the expectation that they know how to ... deal with fights. ... You don't want somebody who doesn't have that expertise trying to be over-prescriptive in a tactical situation.[411]

348 I have already referred to my reservations about significant parts of Dr Zalewski's evidence, which extend to the evidence to which I have referred.

349 In that connection, in evidence-in-chief, and even early in cross-examination,

Dr Zalewski seemed intent upon advancing broad assertions to the effect that a system including documentation would have avoided the plaintiff's injury, without grappling with exactly how any such documentation would have led the venue management and security guards to have acted any differently when dealing with the Brawl.

350 Later in cross-examination, however, Dr Zalewski was essentially forced to acknowledge that it was not really about giving guards 'documentation to read' and that there was, in fact, a place for the exercise of discretion and judgement by guards[412] (which, in his first report, he had said could be 'overcome' by 'step-by-step instructions').

351 Further, when taken to the example procedure, Dr Zalewski acknowledged that it was relevantly directed to separating and removing people and that, in the present instance, that had occurred.[413]

352 From that point, Dr Zalewski might be thought to have sought to distract from the terms of the example procedure by asserting that there should have been intervention before the violence occurred, albeit that sometimes 'you have no control'. The latter, I would have thought, is very much the present position.

353 As with the other aspects of Dr Zalewski's evidence to which I have earlier referred, in my view his evidence concerning the presently relevant topic was largely argumentative and ultimately unpersuasive.

354 I should add that neither Naje nor Floran were taken to any example written documentation and, accordingly, neither gave evidence that any particular part of such a document would or could have caused the guards on duty to have acted differently when responding to the Brawl.

355 Indeed, as I have noted more than once, each gave evidence to the effect that, in respect of fights, 'really we know our job' and so did not need to be relevantly directed by venue management.[414] Significantly, it seems to me, Naje and Floran each gave that evidence in chief.

356 In the present circumstances, it seems to me to be ultimately unnecessary to determine whether the failure of the second defendant to have prepared written documentation of the kind referred to by Dr Zalewski was in breach of any duty. In part, that is because I accept Leo's evidence concerning his pre-event briefing with Naje which, it seems to me, was a briefing of the appropriate 'stakeholders' of the kind referred to by Mr Smith. More specifically, however, it seems to me to be unnecessary because of Mr Smith's further evidence, which I accept, that in the present instance written documentation of the kind referred to by Dr Zalewski would not have made any difference.

357 The second area of contention concerns the number of security guards on duty at the time of the Corkage dispute and Brawl.

358 In that connection, of course, it will be evident that, despite the plaintiff's flirtation with the proposition that other security guards might have been available, I accept that -

(a) both incidents occurred after Naje signed off and the 12 security guards provided by the promoter had departed;

(b) at or shortly after that time, only 'a few' guests remained in the foyer to the 'Oasis room'; and

(c) Floran, Sabah and Raad remained on duty.

359 It follows that there is nothing in Dr Zalewski's contentions concerning a lack of appropriate collaboration between the two groups of security guards.[415]

360 Further, Mr Smith confirmed, in evidence which I accept, that -

(a) the applicable 'security span of control' was '1 plus 1 for every 100' patrons;

(b) it was common practice to reduce the number of security staff as the number of patrons reduced; and

(c) the retention of three security guards after 1:30am was 'in excess of the industry standard' and 'still a very adequate span of control'.[416]

(a) I accept that the retention of three security guards after 1:30am was consistent with exercising reasonable care for the safety of remaining guests and staff;

(b) it will be evident that I do not accept that the response to the escalated Corkage dispute or the Brawl was in any sense deficient; and

(c) in particular, Dr Zalewski's opinions concerning the present relevance of the 'witching hour', the inability to determine how to reduce the number of security guards and that 'something north of six or seven' security guards were required 'until the last person leaves' are unpersuasive.

362 Further, like aspects of the evidence of Dr Zalewski to which I have earlier referred, many of the plaintiff's submissions concerning numbers of security guards seemed to be propelled by notions that owed a great deal to hindsight. For example, senior counsel for the plaintiff submitted as follows -

The evidence from Mr Smith ... was that one difficult customer, if I can put it that way, may require up to three crowd controllers, but if you've got two aggressors, such as were present in the present case, then ... that would indicate that the figures advocated by Dr Zalewski of six or seven [sic: 'north of six or seven'] crowd controllers were entirely correct and accurate for the needs of securing these particular premises.

And they weren't there, and because they weren't there, the first fight [ie, the Corkage dispute] escalated and wasn't put down, wasn't placated, as Dr Zalewski said it should have been. ... and it escalated when they returned to the premises and began engaging in more violent behaviour [ie, the Brawl].[417]

363 To be clear, in respect of such evidence and submissions, it may be accepted that three security guards were ultimately unable to prevent the Brawl, particularly in circumstances in which Elley was armed with an extendable baton and all three men were evidently intent upon very serious violence. However, it does not follow that the failure of the second defendant to retain more than three security guards after 1:30am was negligent or in breach of duty.[418]

364 Further, having regard to the fact that Elley was armed, I am not at all convinced that 'six or seven guards', or even more, would have prevented the re-entry of the men or the eruption of the Brawl. As Mr Smith observed, 'once a weapon gets produced ..., that exceeds the capability of security'[419].

365 In reality, it seems to me that in circumstances presented by the evidently unprecedented, not reasonably expected, quick, determined and exceptionally violent re-attendance of Elley, Kakoz and, in due course, the plaintiff, no reasonable number of security guards would have likely avoided the Brawl.

366 The final area of contention, of course, concerns the foyer door.

(a) I have earlier determined that the door was not 'broken' or 'not functioning correctly'; and

(b) as that was (correctly) identified by senior counsel for the plaintiff as being the 'thrust of our case' against both defendants,[420] the overall submission must fail.

368 That brings me to the 'remnant' arguments directed to notions such as 'insufficient' supervision, 'stationing', training, briefing, delegation, co-ordination and CCTV, as well as any failure to call the police and the suggestion that, in some way, the plaintiff is to be regarded as having been caught in the 'agony of the moment'.[421]

369 In light of everything which has been said to this point, it is probably sufficient to say that -

(a) I do not accept that the second defendant causally breached its duty of care to the plaintiff in any of the ways suggested;

(b) I do not accept that, at any relevant point, the plaintiff was caught in any true 'agony of the moment'; and

(c) in my view, that is especially not so given he elected to park and leave the vehicle in order to run across the forecourt into an uncontrolled and exceptionally violent brawl.

370 In the circumstances, it is strictly unnecessary to determine the defendants' contentions in respect of the chain of causation as well as the pleaded defences of volenti non fit injuria (as modified by the relevant provisions of the Wrongs Act), 'materialisation of an inherent risk' and contributory negligence.

371 In particular, it seems to me to be undesirable to determine the defence of contributory negligence in circumstances in which I have not found any causal breach of a duty owed by either defendant.

372 That said, without expressing any final view in respect of any of the other points and defences, it will be evident from that which I have already said that there is much to be said for the propositions that -

(a) the present risk of harm was obvious to a reasonable person in the position of the plaintiff;

(b) the plaintiff was not wholly blind to that risk; and

(c) the harm suffered by the plaintiff was the result of the 'materialisation of an inherent risk'.

373 The plaintiff's claims against the defendants must fail, and, consequently, the proceeding must be dismissed.

374 I will hear from the legal representatives concerning the form of final orders and any associated applications.

[10] Amended defence of the second defendant dated 18 October 2024, [4(a)(i)-(ii)].

[11] Amended defence of the third defendant, [4(a)].

[14] The plaintiff pleaded that, in effect, Jamal was an employee of the second defendant in that, on the night, its 'acts and/or omissions' were 'undertaken' by, among others, Jamal: Court Book ('CB') 4 [8]. That allegation was denied by the second defendant, was not discernibly pursued by the plaintiff at trial and did not feature in the plaintiff's closing submissions. Sami gave evidence, which I accept, that Jamal was not an employee of the second defendant: T500.

[15] T583. The plaintiff contended that Leo's role on the night was in dispute and that 'instructions and directions on the night' were, in fact, provided by Leo's father, Sami: Plaintiff's outline of closing submissions dated 12 November 2024 ('plaintiff's outline of closing submissions') [14], [31].

[16] In closing argument, the plaintiff came to contend that there were 'serious question marks' concerning 'the availability of security' on the night, particularly whether the 12 security guards provided by the promoter were available at the time of what came to be referred to as the 'corkage dispute' and the subsequent 'brawl': plaintiff's outline of closing submissions (n 15) [21], [25]. That said, the plaintiff also contended that there were 'just three security guards on duty' at the time of the Corkage dispute and the Brawl: [36].

[17] Albeit that Naje signed off at 1am, video footage showed him to have been present at the premises at the time of the 'corkage dispute' and in the early stages of the 'brawl'.

[18] The plaintiff ultimately submitted that Jamal was assaulted by Elley and Kakoz: plaintiff's outline of closing submissions (n 15) [37]. At trial, the escalated phase of the Corkage dispute was frequently referred to as the 'first fight'.

[19] Plaintiff's outline of closing submissions (n 15) [19].

[20] Exhibit D3 ('One second video').

[21] Exhibit D4 ('47 second video').

[22] Exhibit D6 ('54 second video').

[23] Exhibit D2 ('Camera 16 footage').

[24] For the most part, during the trial, reference tended to be made to the time elapsed, commencing at 0.00, of the Camera 16 footage (n 23) and I will refer to those times in these reasons. That said, the plaintiff's outline of closing submissions dated 12 November 2024 refers, at various points, to the (different) times appearing at the top right hand corner of the Camera 16 footage.

[25] Cf plaintiff's outline of closing submissions (n 15) [1]-[3].

[26] Plaintiff's outline of closing submissions (n 15) [58]. See, in opening at T58: '... our case will be that this was an unprovoked attack by Jamal Younan using a large kitchen knife against a person who was posing no threat to them at all and indeed, was ... trying to perform the role of peace maker in this dispute that had broken out.' See also T68, and, in final address, T735-7.

[28] Elley commenced proceeding S ECI 2022 00621 on 24 February 2022, CB 40-51; Kakoz commenced proceeding S ECI 2022 00743 on 9 March 2022, CB 88-99.

[29] Order of Keogh J dated 15 October 2024.

[32] T51. The order was later broadened to embrace the issue of a further subpoena to Detective Acting Sergeant Dean Hartwell: T51-2.

[33] See, eg, the evidence given by Dr Zalewski at T420-1 and the cross-examination of Sami at T537-8 and T553-4.

[34] Plaintiff's outline of closing submissions (n 15) [17], [20].

[40] Including, eg, during the evidence-in-chief of Dr Zalewski: see T420-1 '... everyone signed off either at 1am, which is one person, and all the rest signed off at 1.30'. See also T431-2, 435, 437.

[41] Plaintiff's outline of closing submissions (n 15) [22], [36].

[43] I say 'appeared' because the only point at which the submission is advanced in those terms is in the section of the outline addressing the defendants' defences: plaintiff's outline of closing submissions (n 15) [89(c)].

[48] I say 'appeared' because the point at which the submission is advanced in those terms appears in the section of the plaintiff's outline of closing submissions (n 15) addressing the defendants' defences to the claim: [89(d)].

[49] Exhibit P13 [15] (emphasis added).

[55] T419-20. See also later in re-examination at T467, 469.

[56] Plaintiff's outline of closing submissions (n 15) [36].

[57] I note that this point was made repeatedly by senior counsel for the defendants in closing address (T690, 704, 708, 728) and that senior counsel for the plaintiff did not subsequently submit to the contrary.

[59] The plaintiff's outline of closing submissions (n 15) refers to the receipt by police of a call at 1:47am, but it is not there said that either defendant failed to call police after the Corkage dispute: [25]. Later, in respect of duty and breach, the plaintiff appears to direct attention to the 'primary criticisms' made by Dr Zalewski: [78]. The identified criticisms do not include any contention in respect of failing to call police, albeit that such a criticism appeared in Dr Zalewski's first and second reports: see Exhibit P4, CB 214; Exhibit P5, CB 263. The submission was not made in closing address.

[61] Second and third defendants' outline of submissions dated 12 November 2024 ('defendants' outline of closing submissions') [4]-[6].

[66] Defendants' outline of closing submissions (n 61) [36].

[67] Ibid [42]. See also [21]-[22].

[74] Ibid [79]-[81]. Cf Wrongs Act 1958 (Vic) ('Wrongs Act') s 51.

[75] Defendants' outline of closing submissions (n 61) [88].

[77] Defendants' outline of closing submissions (n 61) [96]-[97].

[78] Ibid [98]. Cf Wrongs Act (n 74) ss 62-3.

[80] Defendants' outline of closing submissions (n 61) [73]; T743-4.

[81] Plaintiff's outline of closing submissions (n 15) [29]-[31].

[82] Cf Cayford v Let Danny Do It [2021] VSC 707, [32]-[34].

[85] Cf Casey v Transport Accident Commission [2015] VSCA 38, [39]-[40].

[86] See also Wrongs Act (n 74) s 14B(4), particularly (fb).

[98] The plaintiff later gave evidence that he had stopped talking to Elley and Kakoz two or three weeks after getting out of hospital following the incident: T212.

[117] T173-4. See earlier, in examination-in-chief, at T97-99.

[120] Plaintiff's outline of closing submissions (n 15) [61].

[121] That is, about 17 seconds prior to 14.00 on the Camera 16 footage (n 23).

[125] That is to say, 'right hand side' if the foyer is viewed from the forecourt outside the front door of the foyer.

[136] In evidence, the plaintiff confirmed that Elley gave him the keys to the car: T135. In opening, senior counsel for the plaintiff stated that it was 'David Elley's car' (T56) and Dr Zalewski appears to have been instructed that Elley gave the plaintiff 'the keys to his car': Exhibit P4, CB 196. In the circumstances, I do not accept that the car driven by the plaintiff belonged to Kakoz, as stated in the plaintiff's outline of closing submissions (n 15) [42].

[137] See, eg, Nominal Defendant v Cordin [2017] NSWCA 6, [165].

[148] Ibid. Naje thereafter specified that there had been 'three, four fights' and that he had called the police 'one, two, three times': T270.

[161] T321. In that connection, Floran later said that the plaintiff had come into the foyer and gone straight from the table with the floral arrangement to the right hand side: T359-360.

[167] Cf Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

[182] See, eg, T411. Albeit that it tended to be described by senior counsel as a 'witching hour', at least initially the 'hour' was suggested to comprise 'the last two hours of trade'.

[185] T440. I should say that I do not consider these aspects of Dr Zalewski's evidence to be saved by any of the subsequent cross-examination of other witnesses. Neither Sami nor Leo was asked about either the so-called 'witching hour' or a distinct period of 'two hours'. Sami was merely asked whether 'towards the end of the evening can be the most dangerous time' because of drinking, and replied 'M'mm': T551. For his part, Leo took issue with substantially the same proposition, at least in respect of the history of the function centre, and said 'usually it's pretty peaceful': T610. Mr Smith acknowledged that 'statistically, 12am till 3am is the higher risk period for assaults in licenced premises' (T658), although the whole of his evidence would hardly suggest that those statistics were of relevance to the present premises and incidents, or that they should be taken to permanently displace or modify the formula for 'security span of control' which he had earlier identified as being applicable: T620-1.

[191] T461. In addition to which, it is evident from Dr Zalewski's first report that he had been given a copy of the plaintiff's pleading and understood the nature of the allegations made by the plaintiff against the second and third defendants: Exhibit P4, CB 197-8.

[198] Plaintiff's outline of closing submissions (n 15) [8]. Cf Exhibit D12.

[199] Plaintiff's outline of closing submissions (n 15) [13].

[201] Plaintiff's outline of closing submissions (n 15) [53].

[203] Defendants' outline of closing submissions (n 61) [52].

[204] I am conscious that Naje and Floran also had English as a second language. However, it will be evident from what I have earlier said that, in my view, the essential problems in their evidence were not founded in any difficulties which they might have had with the English language.

[221] See, in particular, T563-6, 569.

[222] Defendants' outline of closing submissions (n 61) [52].

[223] Plaintiff's outline of closing submissions (n 15) [13], [15].

[227] In that regard, in evidence-in-chief Leo was taken to and identified a point during the Camera 16 footage after the Corkage dispute at which he is shown to be standing on the forecourt on the telephone: Camera 16 footage (n 23) (12.34). It was plain in his evidence that this was the point at which he said that he was on the telephone to the police: T590-1. That evidence was not directly challenged in subsequent cross-examination: T610.

[234] Plaintiff's outline of closing submissions (n 15) [17].

[236] Cf Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478, [20]-[21].

[238] Plaintiff's outline of closing submissions (n 15) [79].

[240] Plaintiff's outline of closing submissions (n 15) [81].

[246] Exhibits D1, D5, D8, D9, D10 and D12.

[248] Exhibits P8, P9, P10, P11, P12, P13, P14 and P15.

[250] From which, as I have earlier noted, at least one further controversy was said to be related, namely whether security guards other than Floran, Sabah and Raad might have been present and available after the Corkage dispute.

[251] From which there was also a degree of further and rather undeveloped factual controversy concerning the circumstances in which Elley and Kakoz, in particular, had re-entered the foyer immediately prior to the eruption of the Brawl.

[252] Plaintiff's outline of closing submissions (n 15) [11]. Cf T499, 536.

[264] T509-10. See also T539. In that connection, Leo gave similar evidence that at the time of the 'first fight' (ie, the escalated phase of the Corkage dispute) there were 'maybe 15' guests in the foyer: T589.

[271] Plaintiff's outline of closing submissions (n 15) [17].

[273] In that regard, the plaintiff is seem to be stabbed in the 47 second video at 0.12, which is the equivalent of the Camera 16 footage at 13.55. Elley was bundled out of the foyer, and the Brawl was essentially finished, at 14.37 of the Camera 16 footage. It follows that the Brawl ceased about 42 seconds after the plaintiff was stabbed by Jamal.

[274] See, eg, Exhibit P10, CB 493; Exhibit P14, CB 498-499.

[275] That is, about 14 minutes and 37 seconds prior to the end of the Brawl.

[276] Plaintiff's outline of closing submissions (n 15) [19].

[277] At one point it appeared that one of the 12 security guards might be shown in the Camera 16 footage (n 23) (7.39). However, Sami later confirmed that the person - named 'Moffa' - was among the staff of the promoter who organised the concert, as distinct, seemingly, from one of the security guards: T518-19, 551-6, 582.

[278] Plaintiff's outline of closing submissions (n 15) [75].

[280] Defendants' outline of closing submissions (n 61) [40]-[41], [43].

[308] T531. See also T577. For his part, Leo said that the security guards should not be putting themselves at risk and should be witnessing events: T606. That evidence seemed to be particularly directed to the ferocity of events on the night and I did not understand it to truly displace the evidence of Sami and others that the responsibility for responding to fights really lay with the security guards.

[311] T326. It was essentially implicit that Naje had similarly been trained in the course of obtaining his security qualifications: T268-9 ('We ... done the course'). See also T279.

[316] Plaintiff's outline of closing submissions (n 15) [36], [44]-[50], [55].

[326] Plaintiff's outline of closing submissions (n 15) [44]. There was some other evidence on the topic, such as that of the plaintiff to the effect that when he was running across the forecourt the door was '[o]pen' and that there was no effort made to restrict people from entering: T84. In light of what I have earlier said, I would not attach any particular significance to that evidence. Among other things, Elley and Kakoz had already re-entered the foyer immediately prior to the point at which the plaintiff was sprinting across the forecourt. Accordingly, it is hardly surprising that, by then, the door was open.

[328] In that regard, even Dr Zalewski agreed that a guard coming out and looking at the premises was good practice: T453.

[332] Camera 16 footage (n 23) (14.54).

[333] T569. In that connection, while, in address, senior counsel for the plaintiff also referred to the statement of Rami Wassouf, that included no more than an assumption that 'the door was unlocked': Exhibit P11 [11].

[337] T315: 'David and Adaay ... they were standing in front of the door, the door already opened. So they came in where the door is and ... after that, the fight start, and then I saw Ewan [the plaintiff] coming back.' See also T317. Although Floran later said that he was not standing near 'the main door' (T319; see also T360-1), I do not accept that evidence. It does not seem likely in light of the parts of his oral evidence to which I have referred as well as his positioning in the One second video.

[339] See, in particular, 0.13-0.20 of the 47 second video (n 21).

[349] Plaintiff's outline of closing submissions (n 15) [63].

[350] That is not to say that it is not possible that Kakoz (and Elley) did not strike Sami immediately after re-entering the foyer and a matter of seconds before the scene shown in the One second video, although it seems to me to be very unlikely that any such strike could have caused Sami to be splayed on the floor as shown in the One second video. As explained, it is much more likely that the person who struck Sami causing him to be splayed on the floor is the plaintiff.

[353] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-3.

[354] Plaintiff's outline of closing submissions (n 15) [3].

[356] As, obviously, must the claim against the second defendant in respect of the foyer door.

[360] T741-2. Somewhat inconsistently, the plaintiff also submitted that the second defendant was 'in fact' the 'true power' with 'responsibility to direct and instruct in respect of the security staffing levels': plaintiff's outline of closing submissions (n 15) [75].

[361] See, eg, T734, 742-3 and plaintiff's outline of closing submissions (n 15) [78].

[373] Plaintiff's outline of closing submissions (n 15) [78].

[375] Which, I should say, is not saved by the various documentary exhibits tendered.

[381] Dr Zalewski gave rather argumentative evidence broadly to the contrary, which I do not accept: T447-9.

[384] 47 second video (n 21) (0.00-0.03). I do not accept the plaintiff's theorising in respect of the condition of his shirt: T226-9.

[386] T371, 378-9, 382. See also the statements of Onel David ('All the staff then ran to the back of the venue' and 'The fight made me feel very scared that someone would be hurt': Exhibit P10 [7]-[8]) and Rami Wassouf ('I then left through the back' and 'I was afraid, I didn't wasn't [sic: want] to get stabbed. If I stayed I could have gotten stabbed by mistake. I didn't want it to happen': Exhibit P11 [23]-[24]).

[389] Plaintiff's outline of closing submissions (n 15) [97], [101]-[103].

[390] Raciti v Wadren Pty Ltd [2006] VSCA 132, [45].

[392] Plaintiff's outline of closing submissions (n 15) [40], [42], [47]. The plaintiff relied upon that evidence in support of a contention that Floran's direction should be thought to have conferred upon him a right to return to the premises if his friends returned. That was not the import of Floran's evidence and, in any event, it is fanciful to think that such a statement by a security guard should be taken to confer upon the plaintiff any form of legal or other right to return to the premises in order to participate in a large and violent brawl fomented by his friends. However, albeit that in evidence the plaintiff denied being given such a direction (T161), having regard to the treatment of it to which I have referred, I am inclined to accept that Floran must have given such a direction.

[394] I attach no weight to any relevant terms of the Victoria Police summary which, of course, was prepared in circumstances quite different to the present: Exhibit P17.

[395] Cf Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121. See also Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359, in which the doctrine of res ipsa loquitur was referred to as 'the RIL principle'.

[396] A duty in similar terms was ultimately stated by the plaintiff: plaintiff's outline of closing submissions (n 15) [68].

[403] See, in particular, T417. See also T441-2, 454-60.

[418] Cf Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, [56]-[57].

[421] As to the latter, see plaintiff's outline of closing submissions (n 15) [108].