Portelli v Tabriska Pty Ltd & Ors

Brandi v Mingot (1976) 12 ALR 551 Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; 3 VR 447 Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29; 217 CLR 469 Collingwood Hotel Pty Limited v O'Reilly [2007] NSWCA 155 De Groot v The Nominal Defendant [2005] NSWCA 61 Desmond v Cullen [2001] NSWCA 238; 34 MVR 186 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 Jones v Dunkel (1959) 101 CLR 298 Lanahmede Pty Limited v Koch [2004] SASC 204 CASES CITED: Manly Council v Byrne [2004] NSWCA 123 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; 205 CLR 254 NSW Bar Association v Meakes [2006] NSWCA 340 Oxlade v Gosbridge Pty Limited [1998] NSWCA 167 Payne v Parker [1976] 1 NSWLR 191 Roads and Traffic Authroity of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113 Spedding v Nobles [2007] NSWCA 29 TAB Ltd v Atlis [2004] NSWCA 322 Wagstaff v Haslem [2007] NSWCA 28

Clinton Joseph Portelli PARTIES: Tabriska Pty Ltd Gustav Herstik John Lee Gorton trading as Elite One National Security Service

A S Morrison SC, E G H Cox (Appellant) COUNSEL: G Watson SC, J Sheller (First and Second Respondents) A Hewitt SC, Mr S Maybury (Third Respondent)

Stacks/Goudkamp (Appellant) SOLICITORS: Henry Davis York (First and Second Respondents) Curwood Lawyers (Third Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40987/2007

ALLSOP P HODGSON JA MACFARLAN JA

17 February 2009 PORTELLI v TABRISKA PTY LTD & ORS

The appellant (the plaintiff below) was seriously injured by blows and kicks to the head in a fight which occurred in a public street in Jindabyne.

Earlier in the evening the appellant and his companion had been involved in an altercation with two of the later assailants at a hotel. After the altercation the assailants had been put off the premises using the front door of the hotel. A short time later the appellant and his companion were let out of the back door of the hotel which opened on to a laneway. The fight occurred in a street intersecting with the laneway as the appellant and his companion walked back to their accommodation.

The appellant claimed damages for negligence from the owner and occupier of the hotel, the licensee of the hotel and the provider of the security services (the defendants below, respondents on appeal).

The claims were heard in the Supreme Court of NSW and the claims against each of the respondents failed at first instance.

The issues considered on appeal were: i) whether the primary judge erred in finding that the evidence did not disclose that the respondent knew, or should have known, of any danger to the appellant; ii) whether the primary judge misused his position or overlooked any inconsistent fact in concluding that evidence of a witness should have been rejected by reference to adverse demeanour and various discrepancies; iii) whether the failure of the primary judge to deal expressly with the statement of a witness undermined his Honour's conclusion on the oral evidence of that witness; iv) whether the primary judge erred in failing to draw an inference that the security guard who was not called to give oral testimony by the respondents would not have helped the respondent's case; v) whether the primary judge should have drawn a so called "Jones v Dunkel" adverse inference against the respondents from their failure to call the doorman at the hotel as a witness; vi) whether the primary judge erred in finding that the publican or security firm did not owe a duty of care to the appellant in the circumstances because the duty of care cannot extend to preventing injury off the relevant premises.

Allsop P (Hodgson JA and Macfarlan JA agreeing): i) Any duty of care owed in this case could only have been based on the conclusion that the circumstances gave rise to an apprehension of risk to the appellant. ii) The primary judge made no error in holding that the evidence did not disclose an apprehension of risk to the appellant. iii) With regard to the evidentiary findings below: a. the primary judge did not misuse his position or overlooked any inconsistent fact in concluding that evidence of a witness should have been rejected by reference to adverse demeanour and various discrepancies; b. the failure of the primary judge to deal expressly with the statement of a witness did not undermine his Honours conclusion on the oral evidence of that witness; c. the primary judge did not err in not drawing an inference that the security guard who was not called to give oral testimony by the respondents would not have helped the respondent's case; d. the primary judge did not err in not drawing an adverse inference against the respondents from the failure of the doorman to give evidence as a witness. iv) The duty of care owed by a publican and security firm to patrons discussed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40987/2007

ALLSOP P HODGSON JA MACFARLAN JA

17 February 2009 PORTELLI v TABRISKA PTY LTD & ORS Judgment

1 ALLSOP P: At about 4.10 am on 1 August 1998 the appellant (the plaintiff, below) was seriously injured by blows and kicks to the head in a fight in Jindabyne. The incident occurred in a public street after the appellant and a companion (Mr Craig Hansen) had left the Aspen Hotel in Jindabyne and were returning to their lodgings. Two of the assailants, the third and fourth defendants (who took no part in the appeal and against whom the proceedings were resolved prior to trial) had earlier been involved in a brief altercation with the appellant inside the hotel over a game of pool. This earlier altercation occurred close to closing time. After it was broken up the third and fourth defendants (and others) were asked to leave the hotel via the front door. The appellant and Mr Hansen were allowed to finish their drinks and their game of pool and, after a short interval, left via the back door of the hotel, which opened on to a laneway. As they were walking up the laneway, the third and fourth defendants and others came into view as they were walking up a street (Thredbo Terrace) with which the laneway intersected. As the two groups met at the intersection of the laneway and Thredbo Terrace, a fight broke out; the appellant was punched to the ground and kicked in the head whilst on the ground. The fight occurred only a few tens of metres from, and in view of, the local police station which, at the time, was staffed, open and well-lit.

2 The appellant claimed damages from the owner and occupier of the hotel (Tabriska Pty Limited), as first defendant, the licensee of the hotel (Mr Gustav Herstik), as second defendant and the provider of the security services to the hotel (Mr Gorton John Lee, trading as "Elite One National Security Service"), as fifth defendant. The primary judge (Hislop J) dismissed the claim against these defendants. The claims against the first, second and fifth defendants

3 The primary judge relevantly described the appellant's pleaded case in [5], [6] and [7] of his reasons: "[5] The plaintiff, in his further amended statement of claim, alleged that the first and second defendants owed a non-delegable duty to take such steps as were necessary for the safety of patrons on and in the vicinity of the premises and that they were vicariously liable for the action or inaction of the fifth defendant in respect of safety and security on the premises. [6] Although the further amended statement of claim alleged a contractual relationship between the first, second and fifth defendants for the provision of security services at the hotel, the nature of any duty owed by the fifth defendant to the plaintiff was not the subject of express pleading. [7] The particulars of negligence which were alleged against the first, second and fifth defendants were: '(a) Failing to ensure the safety of the plaintiff in circumstances where the defendants knew, or ought to have known, that the plaintiff was at risk of injury; (b) Failing to summons the Police to the hotel; (c) Permitting or allowing the plaintiff's assailants to remain in close proximity to the hotel upon being ejected; (d) Inviting, permitting, allowing or requiring the plaintiff to leave the defendant's premises in circumstances where the plaintiff was affected by the consumption of alcohol and at risk of further attack by his assailants; (e) Failing to warn the plaintiff of the imminent risk of further injury; (f) Continuing to serve alcohol to the plaintiff's ultimate assailants when it was known, or ought to have been known, that excessive quantities of alcohol had been consumed by those persons; (g) Failing to look, or look adequately, on an inspection outside for the presence of the plaintiff's assailants prior to ushering the plaintiff out of the back entrance; (h) Failing to take any or any adequate steps to get the plaintiff home or at least clear of his potential assailants; (i) Failing to call a taxi for the plaintiff; (j) Failing to properly supervise and/or instruct security personnel so as to deal with the potential threat to the plaintiff; (k) Failing to provide adequate security on and in the vicinity of the premises.' "

4 It can at once be noticed that aspects of these particulars would be in any circumstances difficult to sustain. Particular (a) and its assertion of a failure to "ensure the safety" of the appellant goes beyond reasonable care and amounts to a requirement of the prevention of harm. This is not the requirement of the law: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at 348 [51]. Particular (c) contains an implication that one or more of the first, second and fifth defendants had lawful authority to require persons who had left the hotel and were in a public place to disperse and move away from the hotel. Particular (d) (in the word "allowing") contains an implication that one or more of the first, second and fifth defendants had authority to prevent the appellant leaving the hotel. Particular (f) played no part in the appeal (or the case below). It would appear that no further alcohol was served to the third and fourth defendants after the altercation over the game of pool and before they left via the front door. Particular (h) involves the proposition that it was the duty of one or more of the first, second and fifth defendants to get the plaintiff to his lodging or at least get the plaintiff to a point past or clear of potential assailants in the public street. This would involve them in being legally responsible for the movement of the plaintiff after he had left the hotel. Particular (i) is another aspect of this, requiring the first, second and fifth defendants to call a taxi for the plaintiff.

5 It will return to some of these difficulties in considering the duty of care.

6 The primary judge set out the matters pleaded by the first, second and fifth defendants in [8]-[13] of his reasons: "[8] The first and second defendants denied liability to the plaintiff. In particular, they denied negligence, that they owed the plaintiff a duty of care (non-delegable or otherwise), that they were in breach of any duty of care, that the plaintiff's injury was caused by negligence on their part, and they denied they were vicariously liable for the action or inaction of the fifth defendant. [9] The fifth defendant also denied liability to the plaintiff. He denied that he owed a duty of care to the plaintiff, or, if he did, that he was in breach of that duty. He also denied that the plaintiff's injuries were caused by negligence on his part. He alleged that he had provided an employee to the first and second defendants which brought that employee into the service of the first defendant so that the first defendant, not the fifth defendant, was liable for any negligence of that employee. [10] The fifth defendant also relied upon the provisions of the Civil Liability Act , 2002 and asserted that: (a) the conduct of the fifth defendant did not constitute negligence as defined in ss 5B, 5C and 5D of that Act; (b) any risk of injury to the plaintiff from assault was an obvious risk within the meaning of s 5F of that Act and, accordingly, the plaintiff was presumed to be aware of it and there was no duty on the part of the fifth defendant to warn of that risk; (c) the plaintiff was intoxicated within the meaning of that expression in that Act and any duty of care owed to the plaintiff was limited by s 49 of that Act and the plaintiff's entitlement to recover was limited by s 50 of that Act; (d) the plaintiff's capacity to exercise reasonable care and skill was impaired by his intoxication which would not have occurred if he had not been intoxicated so the plaintiff was not entitled to recover damages or, alternatively, was required to have his damages reduced by at least twenty-five percent by reason of the provisions of s 50(4) of that Act. [11] The first, second and fifth defendants alleged the plaintiff was guilty of contributory negligence. The fifth defendant (but not the first or second defendants) alleged that the plaintiff, by reason of his conduct in the premises of the first defendant, voluntarily accepted the risk of injury from becoming intoxicated and acting in a provocative and aggressive manner toward other patrons in the hotel. [12] The first and second defendants claimed indemnity or contribution from the fifth defendant pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946 . They also claimed damages for breach of contract. The latter claim was not pressed. The fifth defendant denied any liability to indemnify or contribute to any verdict recovered by the plaintiff against the first and second defendants. [13] The fifth defendant claimed indemnity or contribution from the first and second defendants pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946 . The first and second defendants denied liability to indemnify or contribute to any verdict recovered by the plaintiff against the fifth defendant."

7 After setting out some matters which were agreed or not subject to serious dispute, the primary judge set out the evidence of each witness called and the contents of important documentary records.

8 The main witnesses were: the appellant, who had no recollection of the events in question; his companion Mr Hansen, who witnessed all relevant events; Sergeant Waldau, who in company with other officers broke up the fight at the intersection of Thredbo Terrace and the laneway; Mr Gallagher, who had been in the hotel since 8 or 9 pm the previous evening and who witnessed the events; Mr Jason Robinson, who did not give evidence but whose statement and part of his transcript in the criminal proceedings against the third defendant were tendered and who saw the group which assaulted the appellant (including the third and fourth defendants) walking away from the hotel and then turning into Thredbo Terrace; Mr Ray Ranger, the security guard employed by the fifth defendant, who was not called, but his full transcript in the criminal proceedings was tendered by counsel for the plaintiff in reply; Mr Marcus Herstik, the son of the second defendant, who was the duty manager in the hotel at the relevant time; and a Mr Stenning who was also at the hotel at the relevant time.

9 The primary judge rejected arguments that a "Jones v Dunkel inference" should be drawn against the first and second defendants for not calling a Mr Kay, who was the doorman standing outside the hotel at the relevant time, and against the first, second and fifth defendants, for not calling Mr Ranger.

10 The primary judge then gave his assessment of the witnesses. Importantly for the appellant's case, the primary judge rejected the evidence of Mr Gallagher as to what he saw outside the hotel after the third and fourth defendants had left. The factual findings and the events leading up to the appellant's injury

11 The simple geography of the hotel and its surrounding streets is important. The hotel had three bars (a cocktail bar, the back bar and the front bar). There was also a restaurant and a bistro. By the time of the altercation over the game of pool all patrons were in the front bar where two pool tables were located. The dimensions of the front bar were 12 metres by 8 metres.

12 The front bar opened on to a pedestrian area to the east. Kosciusko Road borders the hotel on the east and meets Thredbo Terrace which is to the south of the hotel. The laneway at the back of the hotel (on its western side) runs up to meet Thredbo Terrace some metres past the point of intersection of Kosciusko Road and Thredbo Terrace.

13 The location and geography of the hotel, police station and streets were revealed (though not with precision) in Exhs B, 1D1, C and D at Blue 1, 2, 4 and 12.

14 From the front of the hotel, the group that was outside the front of the hotel moved off along Kosciusko Road and turned up Thredbo Terrace meeting the appellant and Mr Hansen on its right as the appellant and Mr Hansen came up the laneway.

15 The well-lit police station was situated in Thredbo Terrace not far from the intersection with Kosciusko Road and directly opposite the site of the fight at the intersection of the laneway and Thredbo Terrace.

16 The importance of Mr Robinson's evidence (upon which he was cross-examined at the criminal proceedings) was that the assailant group was seen walking away from the hotel and up Thredbo Terrace. Mr Gallagher, whose evidence the primary judge rejected (about which rejection complaint was made on appeal) had said that he saw the group run from the hotel in the direction of Thredbo Terrace. When taken with the rest of his evidence as to what he said was the threatening manner of the group outside the front of the hotel, this evidence tended to support the appellant's case at trial that the group realised the appellant and Mr Hansen were being let out the back door, that the group was running around to the back of the hotel on the laneway to confront them, that those managing the hotel and concerned with its security should have appreciated that the group outside was threatening and that letting the appellant and Mr Hansen out the back door posed a risk to their safety.

17 Turning to the events, the primary judge found that the appellant's faculties were not affected by alcohol to any degree of significance. The altercation was in the front bar. The appellant did not start it, but defended himself. The altercation was terminated within a few moments by the hotel staff. It did not involve any serious violence and apart from a minor cut to the chin of the appellant, no one was hurt. The third and fourth defendants and the latter's brother were escorted out of the hotel through the front door. Last drinks were called immediately thereafter.

18 The appellant and Mr Hansen were allowed to finish their drinks and their game of pool. Mr Hansen's evidence was that while he remained in the hotel after the altercation he saw a group of people out the front of the hotel consistent with a congregation of patrons who were leaving and saying their goodbyes. He also saw (after going to the bathroom to wet some tissues to help the appellant clean up the cut on his chin) a group of people (up to six) whom he believed to have been in the altercation standing out the front of the hotel. Mr Hansen said that as he and the appellant were finishing their game of pool from time to time he looked out the window and saw the group standing there. He said that he had no concerns for his safety and was not expecting further trouble. The primary judge accepted Mr Hansen's evidence. He inferred that the appellant was of like mind. Mr Hansen's perceptions and lack of apprehension here consistent with there being no apparent belligerence or potential danger being exhibited by the group outside.

19 The appellant and Mr Hansen left through the back door. The primary judge made the following finding at [39 (h)] of his reasons: "… It is unclear if the back door was used because there had been an altercation or because the plaintiff asked to use the back door as it was closest to his accommodation. Both reasons may have applied."

20 The primary judge also accepted the evidence of Mr Marcus Herstik that his Honour had set out at [27 (e)] of his reasons, as follows: "He had known the fourth defendant for four years prior to the incident. They used to be in ski racing together. He had known the fourth defendant's brother for seven years. All three men were regular attendees at the hotel. He had not seen anything which suggested the fourth defendant or his brother were violent. He did not know the third defendant as well but there was not really a violent tendency through the group. So far as he was aware, they had never caused a problem at the hotel. As the persons involved in the altercation were being separated, he heard the third defendant say, 'Come on outside, we'll see who is the man.' He accepted he may have given evidence one of the group was still a little bit agitated and did not feel it was quite finished. However, as they walked out the door, he could hear the fourth defendant telling the third defendant not to be an idiot. He said that if he had seen the third or fourth defendant or the latter's brother pointing inside the front room, he would not have been concerned. Nor was there anything that happened [prior to the fight] which warranted calling the police. The third and fourth defendants and the latter's brother left through the front doors of the hotel. The plaintiff and Mr Hansen left through a rear door of the hotel. This accorded with standard industry practice at the time and was a procedure which was successful in preventing further breaches of the peace. The bar was being closed at the time the plaintiff and Mr Hansen left. He pointed out that a large group of persons outside the hotel was not in itself a dangerous thing as the members of the group, for example, could be waiting for a cab or to be picked up etc and it would be hard to determine whether they were 'spoiling for a fight'."

21 The primary judge noted that Mr Herstik could not recall looking out the front window but said (at [59] of his reasons): "… Had he done so, the only acceptable evidence was that he may have seen the men and other persons standing outside the hotel but not doing anything which would have caused alarm."

22 The evidence of Mr Gallagher and of Mr Ranger bore upon this question of the apparent behaviour and demeanour of, and any potential danger posed by, the group outside the hotel prior to the appellant and Mr Hansen leaving via the back door. I will deal with the evidence of Messrs Gallagher and Ranger and the evidence concerned with the appellant and Mr Hansen leaving via the back door when I deal with the appellant's arguments. It is sufficient at this point to recount the primary judge's findings at [39 (j)] and [60], [61], [62] and [63] of his reasons: "[39(j)] The third and fourth defendants and the latter's brother generally remained in the street outside the hotel after the altercation. They may have temporarily dispersed. They were joined from time to time by other patrons as they left the hotel. There was no acceptable evidence that the third defendant was pointing at the plaintiff and Mr Hansen or behaving in any threatening manner whilst in the street outside the hotel. It is unclear if Mr Herstik looked through the window and saw the group as he does not recollect now if he did. ………. [60] [Mr Herstik] knew that the plaintiff and Mr Hansen were to leave by the back door in accordance with industry standard practice. He knew that the plaintiff and Mr Hansen could go in either direction in the lane or up the path. He knew the men who had been put out the front door had a number of options as to the route they would follow. [61] In my opinion, it has not been established that Mr Herstik knew or ought to have known facts requiring intervention to protect patrons. [62] I am fortified in that conclusion by the fact that Mr Hansen had no concerns for his safety and was not expecting further trouble when he left the hotel. At that time he had no thoughts of being confronted by the group of men. [63] Similarly there was no acceptable evidence the plaintiff expressed or exhibited any concerns in this regard yet he was in a better position than anyone, by reason of his involvement in the argument and altercation, to observe and determine whether the group was a danger."

23 The primary judge made the following findings as to the meeting of the two groups at [39 (l) - (p)]: "(l) After a time the third and fourth defendants and the fourth defendant's brother and a number of other men walked along Kosciusko Road and turned into Thredbo Terrace. They did not run nor did they proceed into the lane. When first observed by Mr Hansen, they were walking across the road. The third defendant, on observing the plaintiff, said "Look who we've found here". Whether the meeting was coincidental or intended by the group was not clear and I do not find the plaintiff has established the meeting was intentional. (m) Mr Herstik did not know which direction the plaintiff and Mr Hansen would go when they left the hotel. The plaintiff and Mr Hansen did not take the path up the hill which was the shortest route to his accommodation but instead continued to walk up the path to Thredbo Terrace. Why this occurred is not apparent from the evidence. (n) Mr Hansen was 12½-25 metres from the top of the laneway when he first observed the third defendant. I infer the plaintiff first observed the third defendant about the same time. The group commenced to make comments that indicated they proposed to fight. (o) Mr Hansen and the plaintiff continued to walk up the path towards the group. There were a number of escape routes available to the plaintiff and Mr Hansen. Mr Hansen may have been unfamiliar with them but the plaintiff had been working at Perisher since April 1998 and was living a short distance from the hotel. (p) It is unclear, and I am unable to find on the balance of probabilities, that if the plaintiff and Mr Hansen had retreated the group would have followed and if they did whether they would have succeeded in catching them."

24 After considering various authorities, including Spedding v Nobles [2007] NSWCA 29; Wagstaff v Haslem [2007] NSWCA 28; Collingwood Hotel Pty Limited v O'Reilly [2007] NSWCA 155; Desmond v Cullen [2001] NSWCA 238; 34 MVR 186; South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; 55 NSWLR 113 and on appeal Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29; 217 CLR 469; Oxlade v Gosbridge Pty Limited [1998] NSWCA 167; and Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; 205 CLR 254, the primary judge concluded that there was no duty of care owed by the first and second defendants to the appellant because the duty of an innkeeper or person in like position can only extend to preventing injury to the plaintiff on the relevant premises. At [55] of his reasons his Honour said the following: "In my opinion, the duty of care owed by the first and second defendants relevantly extended only to preventing injury to the plaintiff on the premises under their control. It did not encompass a duty of care where injury to the plaintiff was occasioned by the deliberate wrongdoing of persons over whom the defendants had no control in a public street."

25 Having considered the circumstances of the case, the primary judge came to the conclusion that even if there were an operative duty to exercise care for the appellant, there was no acceptable evidence that there were any facts that were known, or that ought to have been known, to the defendants requiring them to take steps to protect the appellant. Alternatively, couched in terms of breach, the circumstances were such that there was no breach by reason of the first, second and fifth defendants not taking any additional steps to protect the appellant: see [64] of his Honour's reasons.

26 The primary judge then considered the position if, contrary to his view, Mr Herstik should have been aware of a risk that the group wanted to continue the fight. His Honour posed the alternatives at [71] of his reasons, much as they were argued on appeal: "It was suggested the defendants could have called a cab, called the police to take the plaintiff and Mr Hansen to their accommodation, sought to disperse the group, escorted the plaintiff and Mr Hansen clear of the premises or to the police station, or kept the plaintiff and Mr Hansen on the premises."

27 The primary judge was not satisfied that these steps were either practicable, or reasonable, or would have been taken following consultation with the appellant and Mr Hansen, or would have avoided the injury.

28 The primary judge also concluded that the first and second defendants were not vicariously liable for any default of the fifth defendant through the acts of Mr Ranger. The appellant's attack on the conclusions and approach of the primary judge

29 The appellant's arguments fell under six headings: (a) foreseeability (b) the consequence of the failure of the respondents to call two witnesses: Mr Kay and Mr Ranger; (c) the inferences that should properly have been drawn from Mr Ranger's sworn evidence that was tendered; (d) causation; (e) the nature and extent of the duty of care said to be owed by the respondents; and (f) the rejection of the evidence of Mr Gallagher.

30 It is convenient to deal with the matter otherwise than by reference to these topics. I will first deal with the issue central to the success of the appeal: the attack on the conclusion of the primary judge that the evidence did not disclose that the respondents knew, or should have known, of any potential danger to the appellant and Mr Hansen from the group that included the third and fourth defendants who had left the hotel after the altercation over the game of pool. That conclusion of the primary judge was based on his acceptance of the evidence of both Mr Herstik and Mr Hansen. Mr Hansen was present, saw the group at the front of the hotel and had no concerns for his safety. Whilst his view was, of course, not determinative, it was evidence of what a reasonable person would have perceived and concluded from the contemporaneous events. Further, one would have thought that someone so close to the events would have had a clear appreciation of any threatening or belligerent attitude of any of the group outside. Mr Hansen's view accorded with Mr Marcus Herstik's perceptions (set out at [20] above). Mr Herstik, it is to be recalled, was personally familiar with the fourth defendant whom he believed not to be a violent person.

31 The putting of the appellant and Mr Hansen out the back door was not the basis for an inference that Mr Herstik appreciated danger from the group at the front. The evidence was that they were following what was thought to be good practice.

32 The evidence of Mr Robinson that the group moved off in the direction of Thredbo Terrace at a walk was broadly supportive of the conclusion of the primary judge. It was inconsistent with the assertion that was based on the rejected evidence of Mr Gallagher that the group ran around the hotel, which would have inferentially supported a conclusion that the group had, while outside the hotel, a manifested and apparent intention to carry on the fight.

33 The evidence of Mr Ranger and Mr Gallagher was vital to the attack on this conclusion by the primary judge. Taking Mr Gallagher first, the primary judge dealt with his oral evidence by rejecting it by reference to adverse demeanour and various discrepancies. The primary judge gave detailed reasons for that conclusion over two pages. Whilst some of the reasons given by the primary judge were minor, that can be seen as much a product of his Honour's completeness in expression as anything else. Subject to what follows about Mr Gallagher's statement, I see no basis to conclude that his Honour in any way misused his position or overlooked any inconsistent fact such that his conclusion about Mr Gallagher's oral evidence should be impugned.

34 That however does not exhaust the potential relevance of Mr Gallagher. Mr Gallagher gave a statement to the police 20 days after the events. It was tendered without limitation and was Exhibit G. In that statement Mr Gallagher said, amongst other things: "14. The bouncers kicked out the tall guy and the shaved headed guys out the front of the Aspen as well as some other guys. The bouncers went and spoke with the guys who had been playing pool. 15. The tall guy and a couple others tried to get back in the door . I was standing in front of the poker machines by the round tables by then and I saw the bouncers kick them out. 16. The other guys got to the end of their game and I could still see the big guy and the others standing out the front. While they were standing there the tall guy was pointing back inside, in the direction of the guys playing pool they'd had the fight with and they appeared to be standing together talking amongst themselves. 17. The guys I had been playing with asked to be let out the back way by the bouncers. The security guard came back and took them out the back way. 18. Within about 10 or 20 seconds of the guys going out the back way, I again looked outside and by this time there was a group of about 10 to 15 people. Then some of the guys, possibly up to 10 ran off to the right. When I saw them run, I became worried and went looking for the guys and the security but couldn't find them." [Emphasis added] 35 The primary judge did not give separate consideration to Mr Gallagher's statement and the weight that it should be given. It was a near contemporaneous record of what happened. The primary judge was, however, aware of it in his considerations of Mr Gallagher's evidence.

36 Some consideration of the statement should have been given. It was some evidence that the group "ran off to the right". Mr Robinson's statement and cross-examined evidence at the criminal proceedings were to the contrary. The acceptance by the primary judge of this evidence to found the conclusion that their group was walking up to Thredbo Terrace is not destroyed or fatally undermined by Mr Gallagher's statement. The clarity of Mr Robinson's cross-examined evidence makes reliance on it preferable to rejecting it in favour of Mr Gallagher's statement, in particular in the light of his found inadequacy as a witness.

37 Mr Gallagher's statement also was to the effect that he saw some pointing ("pointing back inside") from "the tall guy" and that "the tall guy and a couple of others" tried to re-enter the hotel. It was submitted that this reflected an apparent (that is visible or perceptible) belligerence or aggression from the group outside. It was submitted that the significance of these events could be gauged by Mr Herstik's answer in cross-examination that (so the appellant's senior counsel put it) he would have been concerned if they had tried to get back in. This was not Mr Herstik's evidence. In fact, he said the following: "Q. If in fact some of those people who were standing outside and who had been put outside had attempted to get back inside, that would be a cause for concern, wouldn't it? A. I mean, if they're just trying to come back in I guess it also depends on their intention, but yeah, I mean, it's not - it depends more on their intention and how they're acting when they're trying to do it ." [Emphasis added]

What would have been of concern to Mr Herstik was if they were trying to re-enter for the purpose of continuing the fight. There was no evidence of this. The statement of Mr Gallagher, if one rejects the evidence of the group running from the front of the hotel in the direction of Thredbo Terrace, does not lead to this conclusion. Further, it is contrary to the conclusion drawn by Mr Hansen. Mr Hansen was there. He looked out the window of the front bar from time to time after the group from the altercation had left. The primary judge summarised his evidence as follows in this relevant respect at [18 (e)]: "… He did not believe there was any occasion when the group of people was not standing there. At the time he thought he may have seen a bouncer out there talking to the group. During that time he had no concerns for his safety. At the time he left the Aspen Hotel he was not expecting further trouble. He had no thought that he might be confronted by the group of men. If he or the plaintiff had not thought it safe, he agreed he or the plaintiff could have called a cab or the police. During the evening no-one said call the police."

38 The statement of Mr Gallagher is not a basis to conclude that the inference to be drawn from Mr Hansen's evidence that the group at the front of the hotel was not behaving in a threatening manner should be rejected. The statement that the "tall guy was pointing back inside" was equivocal and not a basis to doubt the inference to be drawn from Mr Hansen's evidence. In these circumstances, the failure of the primary judge to deal expressly with the statement does not undermine his Honour's conclusion on the oral evidence of Mr Gallagher.

39 The evidence of, and submissions about, Mr Ranger were not without their difficulties, and curiosities. The first defendant tendered a handwritten note signed by Mr Ranger being part of the record book of the fifth defendant. The primary judge set this out at [28] of his reasons: "31.7.98 At approximately 23.00 an altercation broke out between four people in the back bar. Two people wound up down the stairs between the cocktail bar. We removed the four people involved. 3.40 am Another altercation broke out in the public bar between four people over a game of pool. Graham gave me a hand to escort two of them out the front door. Whilst I tried to calm down the other two after I did calm these down. [sic] I let them out the back door after I had checked to make sure the area was all clear. R. Ranger." [Emphasis added]

(The second paragraph which is emphasised dealt with the altercation in the hotel.) This note was consistent with Mr Ranger either stepping out into the back lane or at least looking into the back lane to see whether the exit was all clear.

40 Mr Ranger not having been called as a witness by the respondents, the appellant tendered in reply the whole of the transcript of Mr Ranger's evidence at the criminal trial. Then, senior counsel for the appellant submitted to the primary judge that Mr Ranger should be found to be a liar as to at least part of his evidence. (This submission was, in substance, repeated on appeal.)

41 The appellant's counsel tendered Mr Ranger's transcript to support a submission that Mr Ranger perceived a danger to the appellant and Mr Hansen from the continued belligerent attitude of the group outside. Counsel, however, sought to have rejected the parts of the transcript which dealt with the response of Mr Ranger to that perceived danger and his satisfaction with his own response.

42 The primary judge reviewed Mr Ranger's evidence. Mr Ranger had said that he undertook a "full patrol around the hotel area of the premises." Mr Ranger said the following at the criminal trial: "Q. During that time you had done a patrol? A. I done a patrol around the hotel premises and around the shops to make sure there was nobody hanging around or loitering around for their own safety. Q. Then what happened, you returned to the Aspen? A. I returned to the Aspen hotel, spoke to the gentlemen, the two gentlemen, the two gentlemen again that were involved in the incident. I asked them to leave. When I escorted them out the back door, before I let them out the back door I done a full patrol of the carpark and around the general vicinity of the top carpark around, back around the police station. Once I done the patrol everything was fine. I let them out the back door, watched them walk up the road, they were fine, locked the back door and I went back to my normal duties."

43 The evidence of Mr Hansen (which the primary judge accepted) was that Mr Ranger did not go out the back door when he took them to it. The primary judge recorded the following evidence of Mr Hansen at the criminal trial at [19 (a)] of his reasons: "Q. All right. When you got to the back door, you said that the security fellow said words to the effect 'It's right to go. See youse later.' Where did he say that from? A. From standing at the back door, as he opened it. Q. Did he step outside? A. No. Q. Did he appear to you to look outside? A. Just looked out. He did look outside when he opened the door, but he didn't go outside. Q. You're quite sure about that? A. Yes."

It can be accepted then that Mr Ranger did not go into the lane, but that does not undermine his evidence that he looked up the lane. This was consistent with his contemporaneous note ([39*] above).

44 The primary judge noted that Mr Ranger was challenged in cross-examination at the criminal trial about these patrols. In that cross-examination Mr Ranger said: "A. When I escorted the two gentlemen out the back door I asked them to stay inside while I went outside. I closed the door off. I done a patrol out the back and let them out once it was all clear …"

45 The primary judge refused to conclude that Mr Ranger was lying. That was a perfectly proper conclusion, in particular, because he had not seen him give his evidence. The primary judge was, however, not able to safely draw certain conclusions from his evidence, saying at [35] of his reasons: "… I am unable to determine whether he was concerned for the plaintiff and Mr Hansen's safety or whether he had any reason for concern for them. I am unable to determine if he carried out the patrols which he said he did. I am unable to determine whether he carried out no patrols and simply lied once he was aware of the events that in fact occurred. I am unable to determine, if he did carry out the patrols he said he did, whether they were done with reasonable care or not. It is possible that when he made his patrol at the front the third and fourth defendants and the latter's brother had temporarily dispersed or hidden."

46 The appellant says that the evidence of Mr Ranger revealed, at least, that he perceived a danger from the behaviour and demeanour of the group outside the hotel. I do not agree. It is true that he said he did the patrols - as he put it "to make sure there was nobody hanging around or loitering". But it cannot be concluded from his evidence that the group which had left the hotel were behaving in a manner that could be seen as threatening. In this context it is important to understand that Mr Ranger gave evidence that after the altercation in the hotel was broken up there did not seem to be any animosity between the parties. His evidence at the trial was as follows: "Q. And they were the three men from the first group? A. The first group. What happened - when I asked them what happened, they explained what happened. I asked them - they had calmed down by this stage. There was no - there didn't seem to be real much animosity between the two parties. I said 'Righto, when you finish your drinks do you mind leaving the premises'? They said 'yes, no problems', and they finished their drinks and dispersed. Q. You say they dispersed, did you see where they went? A. They went out through the front door, stood around for a few moments. There were a couple of other people out the front. There would have been approximately eight people. After that they stood around and smoked for approximately five minutes and walked off. I was waiting for them to leave. I went and done a full patrol around the hotel area of the premises, and once I thought it was okay to - for the other two people to leave that were involved in the altercation, I let them out in the back door because I couldn't see anybody around. I thought it was all okay and that was the last I seen of the two gentlemen." [errors as in original transcript] This evidence can be read with Mr Herstik's perceptions at [20] above and Mr Hansen's evidence.

47 The other difficulty with Mr Ranger's evidence was that it appeared to assert that the patrols he did confirmed that all the group had dispersed from the front of the hotel. Clearly from the evidence of Mr Hansen and Mr Robinson that was not the case.

48 The primary judge was not in error in dealing with Mr Ranger's evidence concerning the patrols as he did. At least to the extent that the evidence conflicted with the existence of a group of people outside the hotel at about the time the appellant and Mr Hansen were let out the back it was difficult to accept.

49 However, on a proper analysis of Mr Ranger's evidence, it did not amount to support for a conclusion that the group outside the hotel were betraying a belligerent or threatening attitude or were an apparent danger to the appellant and Mr Hansen.

50 The appellant argued that it was an error of the primary judge not to draw an inference that Mr Ranger's evidence would not have helped the case of the respondents because they did not call him. I reject this submission. The evidence of Mr Ranger was tendered, by the appellant. There was no need to infer that unknown evidence would not favour the respondents, because the nature of the evidence was known. The difficulty was assimilating that evidence with the evidence otherwise led at the hearing. There was no error in this regard.

51 Taking Mr Ranger's evidence and the statement of Mr Gallagher made to the police on 21 August 1998, there is no basis to conclude that the finding made by the primary judge about the lack of apparent risk to the safety of the appellant and Mr Hansen based on the evidence of Mr Herstik and Mr Hansen was in any way flawed.

52 The failure to call Mr Kay was said to raise an adverse inference against the respondents. Mr Hansen, according to his own evidence, observed the group outside the hotel. The primary judge inferred from his equanimity and lack of apprehension that he observed nothing reflecting any danger. Mr Gallagher's statement supported a conclusion that one of the group was "pointing back inside". That, however, is not inconsistent with the conclusion drawn by the primary judge from all of the evidence of Mr Hansen and Mr Herstik. It certainly did not require the judge to conclude that Mr Kay's absence supported an inference that the group outside was an apparent danger.

53 Further it is necessary to recognise what inferences might be available from an unexplained failure to call Mr Kay. Jones v Dunkel (1959) 101 CLR 298 was called in aid by the appellant in support of the proposition that the primary judge erred in not drawing an inference from the failure to call Messrs Ranger and Kay that there was an apparent danger to the appellant and Mr Hansen from the group outside the hotel. Two points should be noted about this proposition. First, it treated the circumstances as such as to require the primary judge to call in aid the "rule in Jones v Dunkel". Secondly, the inference said to be available, when that rule was applied, was one which founded a positive conclusion, contrary to the other evidence, that the group was apparently threatening or belligerent.

54 As to the first point, it has been pointed out on many occasions that it is a matter for the fact finder - jury or judge - as to whether the relevant inference should be drawn: Manly Council v Byrne [2004] NSWCA 123 at [52]; De Groot v The Nominal Defendant [2005] NSWCA 61 at [149]; NSW Bar Association v Meakes [2006] NSWCA 340 at [77]. The inferences licensed by Jones v Dunkel are drawn, if they are to be drawn, once all the evidence is in: Manly Council at [54].

55 As to the second point, the law in Australia is settled and clear that the failure to call some witness or lead other evidence does not entitle a positive inference unfavourable to the party to be drawn either in the absence of other facts capable of supporting that evidence or contrary to a competing inference available from proven facts. The use that can be made of the absent evidence is (a) an inference that it would not have helped the party's case and/or (b) it makes more readily acceptable the drawing of inferences otherwise available and relevantly unfavourable to the party not leading the evidence. The suggestion in the reasons of Windeyer J in Jones v Dunkel at 320-21, by his Honour's approval of a passage from Wigmore, that a positive inference unfavourable to the party can be drawn is not the law in Australia. It is contrary to the joint judgment of Gibbs ACJ, Stephen, Mason and Aickin JJ in Brandi v Mingot (1976) 12 ALR 551 at 559-560 and see the Court of Appeal in Payne v Parker [1976] 1 NSWLR 191 at 201-202, and Manly Council at [50]-[54].

56 Here, looking at the evidence of Messrs Hansen, and Herstik, the statement of Mr Gallagher and the transcripts of Mr Ranger and Mr Robinson the conclusion of his Honour that there was no evidence of an apparent danger to the appellant and Mr Hansen was clearly correct. There was no obligation to call Mr Kay in these circumstances. The absence of Mr Kay was not a proper basis for the drawing of a contrary inference.

57 The appellant also argued that the primary judge should have regarded Mr Ranger as having a heightened appreciation of the risk to the appellant than did Mr Hansen and that "his duty of care was significantly greater" than that of the first and second respondents. For the reasons already given, I disagree. Mr Ranger's evidence does not reveal a sense of apprehension for the safety of the appellant and Mr Hansen, let alone a heightened sense.

58 There was reference made in argument on appeal to "assurances" made by Mr Ranger to the appellant and Mr Hanson. The primary judge dealt with the same submission at [36] of his reasons in a manner that I would adopt: "There was evidence from Mr Hansen that when he was leaving Mr Ranger looked out the back door and told Mr Hansen and the plaintiff it was right to go. Insofar as Mr Ranger was indicating the lane was clear, he was correct. There is no satisfactory evidence Mr Hansen or the plaintiff understood Mr Ranger's comments were to be taken more widely or that they replied upon them."

59 The above is sufficient to dispose of the appeal. Any duty of care that may have existed could only have been based on a conclusion that the circumstances at the time revealed to the respondents an appreciation of the risk of harm to the appellant unless steps were taken in furtherance of the safety of the appellant. Hence, in my view, notwithstanding the arguments about the evidence of Messrs Ranger and Gallagher, and the failure to call Mr Kay, there was no error shown in the primary judge finding that the evidence did not support the conclusion that the first, second and fifth defendants should have appreciated some danger to the appellant.

60 This makes it unnecessary to embark on any exegesis on the duty of care of a publican or security firm in these circumstances. Bell JA (with whom Basten JA and I agreed) recently discussed the cases in Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 at [33] - [35].

61 It is appropriate, however, in the light of the primary judge's reasons to say something about the question of duty. I have reservations about whether it can be said, as the primary judge did, that the duty cannot extend to any circumstances where the wrongdoing causing injury to the plaintiff occurred in a public street. The element of control which, together with the statutory obligations and occupation of the site, is the foundation of the duty may in appropriate circumstances apply to control of the victim (or at least circumstances which attend the victim) as well as of the aggressor. The fact that the aggressor has been put out of the hotel may not exhaust the obligation of the licensee or occupier to take reasonable steps to respond to a foreseeable risk of injury to the remaining patron. One can envisage a multitude of circumstances in which a simple step by the licensee could prevent a patron walking outside into almost certain physical injury. Care must be taken, however, to prevent recognition that the control able to be exercised by the licensee or occupier can be the foundation of a duty of care to a patron becoming transformed into a proposition that the licensee or occupier has a positive obligation to become the protector and guardian of the so called "innocent" patron whenever danger outside the hotel can be reasonably apprehended. Some of the particulars and submissions of the appellant here amounted to this last proposition, or at least came close to it.

62 A publican may anticipate that a fight, which has occurred in his or her hotel before being broken up, might reignite on the street. It might be foreseeable that if this occurred there would be danger to a patron who was involved in the fight previously in the hotel and has not left, but who intends to leave. In these circumstances, it might, in all the circumstances, be prudent of the publican to call the police. It does not mean, however, that the publican necessarily has a legal duty to do so in the discharge of a duty to a remaining patron or that he or she thereafter becomes the guardian of the patron who is still on the premises or that he or she becomes responsible for getting that patron home and beyond the clutches of the potential combatant outside.

63 Here, if the circumstances had revealed a threatening group outside the hotel and if it it should have been reasonably apparent to Mr Herstik that the appellant would or might well be set upon when leaving, whatever exit were to be used, it may be that given his position of control and his obligations under the Liquor Act 1982 (NSW), especially ss 104 and 125 dealing with quiet and good order of the neighbourhood and conduct on licensed premises, he would have been obliged to ring the nearby police as a reasonable step in furtherance of the safety of the appellant. In terms of any duty to the appellant, it might well however have been sufficient for him to say something to the appellant to make the appellant aware of the danger in order that he, as a responsible adult, could make his own decisions as to how to deal with the situation.

64 Further, if the means undertaken by the licensee or occupier of dealing with any disturbance on the premises heightened the risk of injury to one party to the violent assault of another this may reflect a breach of duty resting on the control exercised in dealing with the disturbance. For instance, if both protagonists in an apparently uneven fight are thrown out of the hotel through the one exit into a back lane with a concealed means of egress to the street the subsequent injury to the less well-equipped combatant may be seen to be as much a result of the steps taken by the publican as a result of the blows of his adversary.

65 It is helpful to recall what Gleeson CJ (with whom Gaudron and Hayne JJ agreed) said in Modbury Triangle at [15]: "The first respondent suffered personal injury, the direct and immediate cause of which was the deliberate wrongdoing of the three men who attacked him. If the attack had occurred in a nearby street, or anywhere other than on land occupied by the appellant, there would have been no possible basis for attributing liability to the appellant. It is the appellant's occupation of the land on which the attack occurred that is the basis for a claim …"

66 It is also helpful to recall what McHugh J said in Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 at 575-576 [81] (cited by Gummow and Hayne JJ in Cole v South Tweed Heads at 487 [56]): "Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk."

67 Gummow and Hayne JJ went on to say the following in Cole v South Tweed Heads in [56]: "His Honour also emphasised … that the more specific the terms of the formulation of the duty of care, the greater the prospect of mixing the anterior question of law (the existence of the duty) with questions of fact in deciding whether a breach has occurred. On the other hand, the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined." [footnote omitted]

68 To the extent that the duty exists, its content will be fashioned by the particular circumstances including, in particular, the nature and circumstances of the damage inflicted and the identity of the particular person in question. For instance, any obligation on the licensee occupier based on control to break up a fight on the premises and eject the combatants may found a duty to other patrons. It would not necessarily follow that one of the willing combatants could complain about, however, his injuries if the publican was slow to act.

69 The usual duty of care of an occupier to entrants must be recognised. Further, the conduct (whether as occupier or otherwise) of a public house or other place of entertainment may, of itself, create foreseeable risks to the safety of attendees, which may include the possible violent or rowdy behaviour of some attendees. This may found a duty based on control (perhaps springing in part from occupation) to exercise reasonable care to avoid harm to attendees from such risks: TAB Ltd v Atlis [2004] NSWCA 322 at [3]; South Tweed Heads at [151]; Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; 3 VR 447; Lanahmede Pty Limited v Koch [2004] SASC 204 at [2] and [34]-[36]. Nevertheless, it may mislead to speak, invariably, in terms of a generalised duty of care of a publican to take reasonable care for the safety of persons on occupied premises. The question will always be whether, in the circumstances, a duty was owed to the plaintiff, in respect of the damage suffered by him or her, to exercise reasonable care in some relevant respect arising from the occupation of premises, the control involved in any such occupation, any statutory responsibilities in relation to the licence or in relation to the conduct of the establishment and any assumption of responsibility.

70 Here, a fight was broken up. It was a scuffle over a pool game. It was near closing time. All patrons had to leave. One group from the fight was put out the front door. The other, in accordance with perceived industry practice, was, after an interval of time, put out the back door into a laneway. The laneway was checked and was clear. The manager, Mr Herstik, did not appreciate the existence of any particular threat to the appellant and Mr Hansen. The appellant and Mr Hansen did not appreciate any particular threat, they having the benefit of being able to see the group standing at the front of the hotel while they were finishing their drinks and finishing their game of pool. There was no error in the conclusion of the primary judge that the evidence did not establish that Mr Herstik or Mr Ranger should have appreciated that steps needed to be taken to protect the appellant and Mr Hansen.

71 If I am wrong in these conclusions, and if Mr Herstik or Mr Ranger should have taken further steps, I cannot agree with the primary judge that they would not have been effective. If Mr Herstik or Mr Ranger should reasonably have perceived a danger to the appellant and if in discharge of their duty they should have called the police, it is difficult on the evidence to conclude otherwise than that the police would have come and no further fight would have occurred.

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