Quintano v B W Rose Pty Ltd & anor [2009] NSWSC 446 | Case summary

Quintano v B W Rose Pty Ltd & anor [2009] NSWSC 446 | Case summary | Zoe

[18]

The security arrangements at Skelseys 11 Skelseys were licensed premises opening two nights each week, Friday and Saturday, from 8:00 pm until 6:30 am. The premises were licensed for 400 patrons, but by 2002 patronage had declined somewhat, and usually did not exceed 200 to 250. The public area of the club was about 20m x 35m. There were two bars, two pool tables, a seating area and a central dance floor. The entertainment was music, provided by a DJ. The lighting in the vicinity of the dance floor was dim, and there was also a smoke machine, although it was not in operation on the night in question. The clientele comprised younger patrons of mixed racial background. The club was described as a place of "last resort", or "place you go to when there is nowhere else to go". It tended to become busier after midnight, when other establishments closed. 12 By December 2002, the security arrangements at Skelseys involved Mrs Rose - the then wife (now widow) of Mr Rose - and two security guards, one employed by BWR, and the other provided by AWS. From when the club opened at 8:00 pm on Friday and Saturday evening, until the club closed at about 6:00 am the following morning, Mrs Rose controlled the entry, checking dress standards and for excessive intoxication, collecting the cover charge of $8.00, and placing a numerical stamp on each entrant's wrist. There was no security guard until 10:30 pm, when the guard employed by BWR - John Tukuafu - commenced duty. From then until the AWS guard arrived, John Tukuafu assisted Mrs Rose at the door checking IDs, and also patrolled the interior of the club. The AWS guard was rostered to commence duty at or about midnight, until 6:00 am. Although AWS from time to time provided different personnel, from late September 2002 it was almost invariably John Siasau. After the AWS guard commenced duty, Mr Tukuafu remained at the door, assisting Mrs Rose to control entry, and the AWS guard was responsible for patrolling the interior, in particular the dance floor. When monitoring the dance floor, the guard typically stood in front of the dance floor at the railings near the old fireplace. Occasionally (presumably for relief and variety) the two guards swapped duties, with Mr Tukuafu monitoring the dance floor for a time while the AWS guard acted as doorman. Mrs Rose expected the guards to work together to quell trouble when required, and although no specific instruction had been given to this effect, this is how the guards worked between themselves: if one guard saw an incident, such as a fight, in which the other was intervening, the first would come to the assistance of the second. 13 Mr Tukuafu and Mr Siasau were licensed security guards. AWS was a licensed security provider. BWR also held its own master security licence. Mr and Mrs Rose instructed Mr Tukuafu as to what were his duties. 14 AWS was retained to provide a security guard at Skelseys as a result of a meeting that took place between Mr Wilson of AWS and Mr Rose on 9 August 2002 at Skelseys. Mrs Rose was also present for part of the conversation. Although Mr Rose has since died, he swore an affidavit in the proceedings on 19 December 2007 [PX02], which records his version, according to which he told Mr Wilson that he required the provision of security services, and that they had previously had three guards and metal detectors. He says Mr Wilson asked, "How many guards have you got working here?", to which Mr Rose replied "Three, with one starting at 10.30 pm and the other two at 12 midnight. All three then knock off at 6:30 am". Mr Wilson said, "That sounds good to me. I suggest that it would be better to have one of your old guards for the first two to three weeks helping out since he would know any troublemakers and patrons who have been barred". Mr Rose answered, "I agree", and Mr Wilson replied, "I will supply metal detectors to be used by my staff as you have previously been used to". They then negotiated a rate and method for payment. 15 Mr Wilson says that the conversation commenced, in Mrs Rose's presence, with some discussion about the current security provider being unsatisfactory and having insurance difficulties, and that after Mrs Rose had left them he produced a folder, containing his licence and insurance certificates and qualifications, through which Mr Rose browsed. Mr Rose then showed him around the premises, and said, "The present arrangements are that we have two guards on the weekend", to which Mr Wilson responded "Only two?". Mr Rose said, "Yes, and the situation is that we employ one guard and we are looking for someone to provide another one. We might need you to provide a casual at short notice if our regular guard is sick or has a night off or something. Would you be able to do that?", to which Mr Wilson responded, "Yes, Bernie, I can do that". They then discussed remuneration, with Mr Rose offering less than Mr Wilson was asking. Mr Wilson said that he would provide an answer the following Monday. They then inspected the exterior of the premises. Mr Wilson denied that Mr Rose had asked for, or that he had offered to supply, metal detection devises.

[20]

17 Mr Wilson gave evidence that he instructed Mr Siasau that there were only two guards - the AWS guard and Mr Tukuafu; that Mrs Rose was always at the door; that if a large group of people approached the front door they liked both the guards to be at the door, but mainly the guards had to share the duties, and he should circulate around the club and position himself where he could see the front door and the interior. He was to pay particular attention to the bar area, the pool table and the dance floor. 18 Mr Wilson says that, on the morning following his first night on duty at Skelseys, he raised with Mrs Rose a concern that two guards were insufficient, but she rebuffed this. He says that he subsequently told Mr Rose that there was a need for four or five guards, which Mr Rose rejected. Mrs Rose says that she had a conversation with Mr Wilson on an occasion when only one security guard had attended and a second had not, and complained that she was not happy and felt as though she was working on her own, to which Mr Wilson responded that after Christmas he would be able to provide more security. She says this took place a few weeks before 15 December 2002. She says also that, in the months preceding 15 December 2002, metal detectors were in use, and to her knowledge were provided by AWS, and that on one occasion she challenged a security guard wearing an AWS tee-shirt, "Why isn't the metal detector here?" or "Why isn't it working?", and obtained a response to the effect that the battery was flat. 19 In cross-examination, Mrs Rose said that before AWS commenced, a metal detector, which had been lent by a friend, had been used on several occasions; but she maintained that AWS provided one. However, in the criminal trial of the man who was accused (and acquitted) of Luke's shooting, she had given evidence that entrants were not searched. There was no known history of patrons carrying knives or weapons (save for one incident when a person who had been refused admission returned to the door with a knife, more than a year earlier). She said that on several occasions she had asked entrants who were acting erratically or suspiciously to allow their bag to be checked or to empty their pockets; but this was done selectively, with apparently suspicious entrants, rather than as a general screen. She answered the prosecutor's question in the criminal trial: "The security check people for things such as ID or to see if they are intoxicated, were there any searches of persons coming in?", as follows: No, no. We don't really search people. We never had problems. 70 percent of the patrons were normally regulars and they knew the rules and they knew what they had to do. 20 In this court, she protested that no-one had asked her in the criminal trial any questions about metal detectors, and that a metal detector was used on occasions by the security guard at the front door of the premises. She said that sometimes AWS brought a metal detector to the premises, and gave it to John Tukuafu to use at the front door. But Mr Wilson said that metal detectors were not in use at any of the other premises at which AWS provided guards during 2002. 21 The security log demonstrates conclusively that during the period of AWS's contract there were never more than two security guards (including Mr Tukuafu) on duty at any one time. The pattern was similar before AWS commenced. There was no occasion when BWR apparently paid AWS for more than one security guard at any one time. Nor was BWR ever charged for the use or provision of a metal detector. Sometimes, when Mr Tukuafu was on leave, AWS would provide a second guard to replace him, and sometimes a night's shift would be shared between two guards on behalf of AWS, but never were there more than two, including Mr Tukuafu, on duty at any one time. This tells strongly against Mr Rose's version, that he told Mr Wilson that they had, and required, three guards (including their own). 22 Mr Rose said that, due to dissatisfaction with the service provided by AWS, he had a further meeting with Mr Wilson on about 6 December 2002, in which he said, "I'm not happy with the service your company is providing and always having to chase up the attendance of the number of guards we agreed upon. So I am going to have to terminate your services after next weekend", to which Mr Wilson is said to have replied, "I don't care, it wasn't worth my while anyway. I'm glad to get out of here. I'll be coming up next Sunday to pick up my last cheque". That was Sunday, 15 December 2002, the day on which Luke was shot. 23 Mr Wilson accepted that on only two occasions did Mr Siasau commence work promptly at midnight, and on all other occasions did not arrive until about 1:00 am, after he had completed a shift at other premises for AWS. But he said that it was his concerns about the inadequacy of the security arrangements, coupled with unreliability in payment of his invoices, that led him to telephone Mr Rose on 13 December, to terminate the contract with effect the following week. 24 Illumination is provided by subsequent proceedings in the Local Court at Burwood between AWS and Mr Rose in 2003, in which AWS sued for what it said were unpaid fees. AWS obtained a default judgment, and there was an application to set it aside, in support of which Mr Rose swore an affidavit deposing to his defence [DX17], in particular that he had been billed for services for which he was not liable, and that he had been billed for travelling time for a substitute guard when the assigned guard failed to attend, and for attendances where the assigned guard was late. He also said "Because of these overall absences by officers of the plaintiff I had terminated the plaintiff's services from 15/12/02". There was no suggestion of a defence based on failure to provide the requisite number of security guards or a metal detector, although such breaches would have provided relevant defences or cross-claims. 25 In a subsequent affidavit made on 27 October 2003 [DX18], Mr Rose referred to the arrangement to provide Mr Wilson his last cheque on 15 December, and that it was possible to calculate the amount that would be due without AWS's actual invoice, "because the guard starts duty at 12 midnight and works till 6:30 am and the amount due is calculated at $30.80 per hour multiplied by the number of hours worked". It is implicit in this, given that a cheque so calculated for only one guard was drawn in advance and provided on 15 December, that there was to be only one security guard provided that night by AWS. 26 Mrs Rose was not a party to the contractual conversation, although Mr Rose had told her things about it. Mr Rose being deceased, his evidence could not be tested by cross-examination. The absence of reference to any complaint about the failure to provide the agreed number of guards and a metal detector, when there was a dispute between AWS and Mr Rose, tells against Mr Rose's version. The suggestion that AWS was to provide a metal detector primarily for use by Mr Tukuafu and only after midnight, in the context that there was no history known to the proprietors of knives or firearms being brought into the premises, is improbable. The evidence of patrons that they were never searched on entering and had never seen a metal detector in use, and similarly that of Mr Tukuafu that none was used until after 15 December 2002, points in the same direction. So does the evidence that there were in fact never more than two security guards, including Mr Tukuafu, on duty at any one time. So too does the circumstance that AWS did not provide metal detectors at any other premises, and so also does Mrs Rose's evidence in the criminal trial that entrants were not searched. 27 I therefore prefer Mr Wilson's version of the contractual conversation and ensuring arrangements. Accordingly, I conclude that the contract between BWR and AWS required AWS to provide one security guard each Friday and Saturday evening from midnight until 6:30 am, and when requested an additional guard if Mr Tukuafu were absent, but never envisaged that there would be more than two guards (including Mr Tukuafu) on duty after midnight. The contract did not require AWS to provide a metal detector. The AWS guard was to work according to the security system implemented by BWR and the directions from time to time of its principals, in particular Mrs Rose. 28 It follows that BWR did not delegate its responsibility for provision of security to AWS: Mrs Rose was in control of the premises, and both security guards worked under her direction. Indeed if there was trouble, she often became involved herself by speaking to patrons, particularly regulars, to defuse the situation. AWS was not responsible for the security plan, nor for the level of security and number of security guards; those matters remained within the province of BWR. AWS was responsible only for the competent performance of duty by its employee, Mr Siasau.

[21]

The events of 15 December 2002 29 On the evening of 14 December 2002, Luke and friends had been at a function at the Bankstown Trotting Club. In due course they decided to go to Skelseys. Some had been drinking and some had not. Luke says, and I accept, that as he was planning to go to work in the morning, he had not had much to drink. The party arrived at Skelseys between 2.30 and 3:00 am, paid the cover charge and were admitted. They moved to the bar at the rear of the public area, near the dance floor and fireplace. Luke has no recollection of subsequent events that evening. 30 One of Luke's friends was Mr David Caffyn. He had had at least had eight to ten beers at Bankstown Trotting Club, and three bourbon and cokes at Skelseys. After half an hour or so - probably between about 3:00 and 3:30 am, he was accosted by an acquaintance, Doug Leondias, whom he pushed away. Some of the party grabbed Caffyn and settled him down. His girlfriend took him to the dance floor, where they danced for a couple of songs. Then, she pulled him towards her and said that there was a fellow trying to grab him from behind. He looked around and saw a man "basically trying to provoke a fight", walked around the railing near the fireplace and confronted him. They shouted at each other for 15 to 30 seconds; he then saw another man (Alameddine) charge in through the crowd on the dance floor. His initial opponent threw a punch at him, which did not connect; Caffyn threw two punches back to his head, and a brawl erupted around him. He was about to throw a third punch, when there was the sound of a gunshot. 31 At first he estimated the time that elapsed from the first punch to the gunshot was "maybe a minute and a half", but in the light of his subsequent description of throwing two punches in rapid succession with a third about to follow when the shot rang out that seems too long. More relevantly, he later described the sequence as involving an argument when the assailant tried to grab him from the dance floor, a stand-off period of 15 to 30 seconds, and then the melee. He suggested a period of two to three minutes between becoming aware that the man was trying to grab him, until the stand-off. Finally, in chief, he said that there was a period of a minute or two when the assailant was trying to grab him and they had a verbal argument, then a stand-off of 15 to 30 seconds, and then the fight, with others becoming involved. 32 In cross-examination, he agreed with the suggestion put to him that to land three blows would involve only "a split second", but that is too short. In a police statement given on 15 December 2002, he had described having been escorted away by his girlfriend from the initial verbal confrontation and leaving the dance floor to head towards where his friends were sitting and standing on the far side of the rail near the fireplace, then on walking around the rail seeing a scuffle about three metres in front of him between his friend Josh Willick and the male who had first approached him; he was approaching to break up the scuffle when he saw Alameddine charge in, then turn and face him and raise his fist and swing a punch which did not connect; this was followed by Caffyn's two punches which caused Alameddine to bend over, followed by the shot just before Caffyn was to launch his third punch. This version describes events that would have unfolded over seconds - in any event, less than a minute. But it also has Caffyn fighting with Alameddine, not the other man (of Middle Eastern appearance) described in his evidence in this trial. 33 Mr Wayne Davis was another friend of Luke who accompanied him to Skelseys that morning. He said he had only had probably three drinks before arriving at Skelseys. His wife and a female friend of his wife accompanied him. After getting drinks, they stood towards the end of the bar near the dance floor, about two metres from the fireplace. He observed the argument between Caffyn and Leondias, about 45 minutes after they arrived - which places it between 3:00 and 3:30 am. He thought that altercation lasted for three or four minutes, before one pushed the other away. There was then a period of five to eight minutes - a couple of songs - before Caffyn was in another altercation, arguing face to face with a man of Middle Eastern appearance. Davis grabbed Caffyn to hold him away, but a fight between the two men commenced. He estimated the time from when he first observed them arguing face to face until they starting fighting as 30 or 40 seconds. The unnamed man of Middle Eastern appearance challenged Davis to fight. Alameddine then approached and the brawl erupted. They fell over and Caffyn, Davis, his wife, Alameddine and the other assailant were on the floor, still fighting. He went to extract his wife, who was kicking at Alameddine, from the fight; a few more of the Trotting Club people came and joined the melee. He saw Luke on the ground with the other Middle Eastern man - not Alameddine - wrestling on top of him. Then, seconds after his wife fell to the floor, he heard "one almighty bang". From when the fighting started to the gunshot he estimated to be another 30 seconds, maybe a little more. 34 Kim McKay was an independent witness, who had been working as a bar attendant at the Wattle Grove Hotel before she came to Skelseys, where she was a "regular". Although she said in chief that she arrived between about 2:00 and 2:30 am, in her police statement - which she accepted was more likely to be accurate - she had said that she arrived at the club at 3:30 am. She had not been drinking before arriving at Skelseys. After being admitted, she and her two friends went to the bar, got drinks and then sat down at a table. 35 Ms McKay had seen Alameddine at Skelseys on previous occasions, and was faintly acquainted with him. She first saw him that evening not long after she arrived at the club, when he was with a couple of associates. After getting a drink and sitting down, she went to the DJ's box to request a song. Returning towards her table she again saw Alameddine, this time standing at the opposite end of the dance floor from the fireplace. She continued to return to her table, but heard a song she liked and went back to the dance floor to dance. She then heard some arguing and yelling, and noticed a group of 10 to 15 people in front of the fireplace, of whom about five were arguing. This argument continued, she thought, for five to ten minutes, until she saw Mr Alameddine walking down the dance floor towards the fireplace and the argument, and thought that the situation was not dying down and required someone to come in and defuse it. Her concern was aggravated by the circumstance that she had seen Alameddine on previous occasions, once outside the club and once inside, she believed with a handgun. She looked around to see if there was any security in the vicinity and, finding none, left the dance floor to go to the front door, to see if she could find security there. She found two personnel at the front door, whom she had not seen working in Skelseys previously, and they were leading her back towards the bar when she heard "a really loud bang". 36 Ms McKay thought the time frame from her leaving the dance floor until the bang was 30 to 50 seconds. As I understand her evidence, the "argument" had not yet become a fight when she left to find security, although some pushing and showing had commenced. In cross-examination, she accepted that her estimates of time were "rough estimates" and not precise. However, she would not agree that from the time she first noticed men pushing at each other until Alameddine moved in was only one or two seconds, suggesting that the time frame of this was about five seconds. 37 Mr Tukuafu said that 15 December 2002 was the busiest night at Skelseys since he had worked there. Immediately before the shot, he was at the front entrance. His recollection when he gave evidence in this trial had deteriorated, but there was more detail in a contemporaneous statement made to police on 15 December 2002, in which he mentioned that a couple of times during the night "when I was walking around inside, I asked a couple of people not to drink or smoke on the dance floor and they gave me attitude but there was no real trouble". Between five to four and four o'clock, he was on the door - standing on the stairs outside the entrance - when he saw two men wanting to fight. There had been some problem at the pool tables, and he saw a Samoan man with an orange shirt walk outside, gesturing a Tongan man with a blue shirt to come out and fight. He stopped the Tongan from exiting. Mrs Rose then spoke to the Tongan, so that the men could sort out their problem, which they did outside. This was settled about five past four. Both protagonists then made calls on their mobile phones, and five to ten minutes later a group of six Tongans arrived. He called Mrs Rose to the door; they admitted five; one was excluded because he was wearing shorts. 38 About two minutes later - between 4:15 and 4.20 - he heard "a loud bang". He ran inside and, as he was leaving the front entrance to enter the club, someone - with his shirt pulled over his head - brushed past him. He did not notice where Mrs Rose nor where Mr Siasau were. He joined the chase of the fugitive into the carpark, but did not continue the pursuit and returned to the club, where he saw Mr Siasau attending to Luke on the ground. At this point he helped Mrs Rose close the doors. He was not aware of a patron (Ms McKay) having come to the front door not long before the shot, looking for security. 39 Mrs Rose was, as usual, at the front door. From her position at reception she could see into the public area of the nightclub if she moved from the counter to the other side of the entry. She recalls that, at about 4:00 am - perhaps 3:50 am - there were raised voices at the pool tables, where two patrons, one of them a regular, were arguing over rules. She admonished them, and the situation was defused. She can recall no other incident. She does not recall any incident about 4 o'clock with Mr Tukuafu on the door and two men in an argument outside, although she does recall a problem at the pool table. She does not recall an incident involving a Samoan with an orange shirt walking outside and gesturing for a Tongan with a blue shirt to join him and fight, nor Mr Tukuafu stopping the Tongan from exiting, nor herself going out to get them to resolve their problem peacefully. Nor does she remember, just before the shot, six Tongan men trying to enter, nor any request from Mr Tukuafu to assist with that, nor Mr Siasau approaching at that point to see if his assistance was needed. But she did not deny these events; she merely had no recollection of them. 40 At the time of the shot, she was near the desk in the foyer. She had heard no trouble inside the club; she had not noticed any prolonged argument near the fireplace with raised voices, pushing and shoving. Initially, she thought the report was a firecracker. A crowd of people then rushed out, including one who was pulling his shirt over his head and crouching as he ran past the desk. She also saw Alameddine, in a group that appeared to be forming a gauntlet through which the crouching man could run. Eventually, with the assistance of Mr Tukuafu, she was able to close the front doors until the police arrived. She does not remember where Mr Siasau was. She does not recall how long it was after the shooting that she next saw John Siasau, but recalls seeking him near the front desk, calling Mr Wilson. 41 Mr Siasau did not give evidence at the trial; he could not be found. However, he had made an entry in the security log on the morning of 15 December, as follows [DX10]: 12:00Am Security JOHN. SIASAU on site the premises. Not much people. 02 - 03AM start back up can't move around. 04:15 or around I went to the front door to checked the owner Debbi and other security guard with other guys conversation look like trouble. I heard a bang and the guys called me there was some body got shot, I went there through the corridor one guy laying down got shot bleeding some people around him. We call the cops and the ambulance. They were here about 15 mins and sort it out and the guy away. The guy who did was running away by pulling his shirt to covered his face and ran across the road. Security Lic# 4080 69 800. 42 Over objection, I also admitted a statement made by Mr Siasau to police on 15 December 2002 [DX51; see Quintano v Rose [2008] NSWSC 1012]. In it, he said that his duties that night were to look after the dance floor, and that between 2:00 and 3:00 am the club started getting busy with patrons, with a lot of people dancing on the dance floor. 5. At about 4:15 am, I walked to the rail on the edge of the dance floor in front of the fireplace. I walked there because I noticed a female dancing on the dance floor near the rail, kicking other people standing on the other side of the rail. It appeared she was joking with those people. I noticed the males she were kicking her back jokingly. I told these people to settle down. 6. Whilst I was at the railing talking to those people, I looked to the left corner near the fireplace and the left corner of the dance floor. I saw about 10 to 15 males of Middle Eastern appearance. Most of them were drinking from plastic cups. I had words to the males on the left hand corner of the dance floor and asked them to move back from the dancing floor. 7. When I was still talking to those males, I looked to the front doors and noticed my colleague, another security guard John Tukuafu and the owner of Skelseys nightclub, Debbie, standing and talking to some Islander boys. When I saw this, I thought that there was a problem over there so I walked to where John, Debbie and the Islander boys were standing. When I got there, I spoke to John and found out that it was only a minor argument involving some Tongan and Samoan boys. 8. I heard two male voices yell out to me across the dance floor saying, "There's a fight at the end of the dance floor". I saw that they were two Australian looking males. I could see from the front doors a large group of males and females fighting in front of the fireplace. It looked like there were people trying to break up the fight and pulling people away. 9. I immediately started to run to where the fight was to break it up. John was running behind me. When I got to the middle edge of the dance floor I heard a bang. I knew that the bang came from where the group of people were fighting. 43 He saw a male of Middle Eastern appearance, whom he thought had been in the company of Alameddine, emerge from the scuffle, pull his shirt over his head, duck his neck to his chest, and run out the front doors. He followed towards and out the front doors, with Mr Tukuafu. After trying to keep people inside the club and shutting the doors, he ran to the fireplace, where he saw Luke lying on the floor, bleeding from the head. 44 It is not necessary to resolve all the inconsistencies between these several versions. The crucial factual issues concern how long the incident took, and in particular whether there was sufficient time from the first signs of trouble for a security guard on station to intervene and suppress the trouble before it reached the stage of a brawl and a shooting; and the whereabouts of Mr Siasau - who was responsible for security on and around the dance floor - at the time of the incident.

[22]

45 There was time for a guard on station to respond. The retrospective estimation of time is difficult at the best of times, and in the early hours of the morning, clouded by the affects of alcohol, and disrupted by extraordinary and traumatic events such as a shooting, it is at its least reliable. This is exacerbated by the circumstance that the events took place some six years before the evidence was given, although that difficulty is to some extent mitigated by the contemporaneous police statements. The best guide to the duration of the incident is provided by the course events which participants and observers relate having taken place while it continued; what people actually did during it permits the formation of an impression of how long the incident endured.. 46 The evidence enables the time of the shooting to be fixed with a substantial degree of confidence at between 4:15 and 4:20 am. Before the shot was fired, there had been time for Mr Caffyn to have his verbal confrontation and then the stand-off with his antagonist, and then to see Alameddine charge through the crowd, to dodge a punch from his assailant, to land two punches on him, and prepare to deliver a third. Ms McKay had had the time - from when she observed Alameddine moving down the dance floor towards the argument, before a fight had apparently broken out - to look around for security, get to the front door, find the two men there and commence their return towards the dance floor. Mr Davis, who had had the sense for a while that a fight was brewing, had the time from when he saw Caffyn arguing with his opponent, to approach to restrain Caffyn, to see Alameddine move in and the punches thrown and the brawl erupt, with others from the trotting group joining in and the participants falling to the floor, and to begin to extricate his wife. 47 It is not necessary to conclude just how long these sequences took. Ms McKay's estimate of five seconds of pushing and shoving until she saw Mr Alameddine commence his approach and then thirty seconds to reach the front door, alert security and return part way until the shot seems not unreasonable, given the dynamics and crowd size involved. It is quite consistent with Mr Davis's "30 seconds, maybe a little more" "from when the fighting started to when the gun went off". On any view, what Ms McKay did from the time she sensed trouble demonstrates that there was ample time for a security guard positioned in proximity to the dance floor to intervene before the shot was fired. 48 Where was John Siasau? Ms McKay had noticed, when she entered Skelseys, a security guard at the front desk with a woman - no doubt Mrs Rose - collecting money. She cannot recall whether or not she subsequently saw any other security guard. She saw no security guard in the vicinity of the argument, and when she looked for security could not find any until she went to the front door. She said that she had not seen the two she found at the front door working as security guards at Skelseys previously, the suggested inference being that they must have been off-duty security guards from elsewhere, and not Skelseys security.

[23]

49 Mr Davis had seen a security guard - not the one who was on the door when he came in, so presumably Mr Siasau - 15 to 20 minutes before the altercation between Caffyn and Leondias, between the end of the dance floor and the fireplace in the walkway - the location identified as their usual post when watching the dance floor. The guard told patrons that they could not stand in the walkway. Otherwise, he noticed no security guard during the altercation between Caffyn and Leondias, nor during the subsequent confrontation between Caffyn and his antagonist and the ensuing brawl. 50 Mr Caffyn did not notice any security guard in the vicinity at the time of his altercation with Leondias, nor during his subsequent confrontation with his antagonist, and the brawl. 51 In his police statement, John Siasau said that his duties on the night in question were "to look after the dancing floor". He said that he was there, at the rail in front of the fireplace, about three minutes before the shot was fired (4:15 am), when he subdued the girl who was kicking people standing on the other side of the rail. This is the same area in which Mr Davis had seen him, although according to Mr Davis about half an hour earlier (that is, 15 to 20 minutes before the altercation between Caffyn and Leondias, which itself was "two songs" before the brawl). Then, he says, after speaking to the group of Middle Eastern males to move them back from the dance floor, he noticed Mr Tukuafu and Mrs Rose at the entrance, talking to some Islander boys, and went there, to discover that it was a minor argument involving some Tongan and Samoan boys. This is substantially consistent with John Tukuafu's evidence that, following a problem at the pool tables, a Samoan and a Tongan had a dispute following which a group of six Tongans arrived, about two minutes before the shot. While Mrs Rose does not recall the full detail, she does recall a dispute at the pool tables, which she resolved by speaking to one of the disputants and the other left the club - although she puts it a little earlier.

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55 It is true that Mrs Rose does not recall Mr Siasau coming to the door at that time, but she does not deny it; she may not have noticed it at the time, and he may not have approached her; or she may have forgotten it since. Mrs Rose was uncertain as to her precise location at the time when the shot was fired, except that she was near the front door; that impression is gained not only from her evidence before me, but also her evidence in the criminal trial, which was tendered. In that respect, her evidence appeared to be based more on reconstruction of her practice than on actual recollection; although surprising in the context of so traumatic an event, that is explained in part by the circumstance that at the time she thought the bang was only a firecracker, of which there had been previous instances in the club. Mrs Rose describes the incident at the pool table as having been "around fourish, ten to four it could have been". This is consistent with Mr Tukuafu's version, which placed it at 3:55 to 4:00. It was probably ten or fifteen minutes later that the group of Tongan men arrived and sought entry. Nor does Mr Tukuafu recall Mr Siasau coming to the door at that time, but he said that he could not remember the situation - his recollection of the pool table incident was much diminished from its description in his police statement. Ultimately, I do not think that the evidence of Mrs Rose and Mr Tukuafu requires rejection of Mr Siasau's version. Indeed, the above analysis reveals substantial corroboration in their version of matters asserted by Mr Siasau, which he is unlikely to have known had he not been involved in them in the manner in which he described, and which are most unlikely to have been fabricated so rapidly as to be included in his logbook entry and police statement. I regard his contemporaneous statements as reliable, and I therefore accept that Mr Siasau left the immediate vicinity of the dance floor to go to the front door for the purpose of assisting Mr Tukuafu and Mrs Rose with what appeared to be an incident there. He commenced to return to the dance floor when alerted to the fight. It is possible that the male voices he heard sounding the alarm were those of the personnel who Ms McKay had found but did not recognise near the front door when she went there very shortly before the shot. Or it is possible that he was one of those that Ms McKay found near the front door. 56 In any event, it was an agreed fact [PX41, par 24] that at the time of the shooting, Mr Siasau was at or near the front door. I have, however, reached the same conclusion independently, on analysis of the evidence, as the submissions of the parties on this issue proceeded without reference to the Statement of Agreed Facts.

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Breach of duty by BWR 57 The security logbook for the months prior to December 2002 reveals a number of incidents of aggression, in and around the premises, usually between racial groups. Such incidents occurred perhaps twice a month. Having regard to the history of incidents, the demographics of the clientele, the operating hours, the geographic location and the supply of alcohol, I accept that it was reasonably foreseeable that, unless proper security was provided, some level of violence or antisocial behaviour, in the course of which patrons might be injured, was foreseeable. Above, I have concluded that BWR did not discharge its duty to exercise reasonable care for the safety of patrons by delegation to AWS, since it retained control and superintendence of the security system. 58 Negligent failure to have sufficient security personnel to respond adequately to the conditions that existed or developed. The plaintiff called Richard W Jennings as an expert security consultant. Significant parts of his report were rejected [see Quintano v Rose [2008] NSWSC 957]. But there survived, inter alia, an opinion that Skelseys required eight qualified and licensed security officers, and even more when the maximum 400 patronage figure was reached; that two security guards could not possibly provide an appropriate level of security and safety; and that it was not appropriate to have officers at high risk positions such as pool tables and the dance floor leaving their positions unattended - if they had to leave their posts for any reason, they should be replaced temporarily by officers from less risky positions. 59 I was generally unimpressed with Mr Jennings' evidence. Under cross-examination, he tended to resile from the absolute opinions expressed in his report to much less firm positions. His expertise is, as best, dated. His evidence as to the current state of his qualifications, memberships and currency in providing advice to licensed premises was inconsistent with evidence he had given in other proceedings. It emerged that he had not formally provided security advice to licensed premises since 1997. His assertion that there had been little development in the field of provision of security for licensed premises over the years since 1997 was implausible, and inconsistent with evidence he had given in other proceedings (to the effect that he would make significantly different recommendations if designing a system for the same club today as ten or fifteen years ago). His attempts to explain his non-production of documents in other proceedings were querulous. But it suffices for present purposes to say that his cross-examination demonstrated his recommendation of eight security guards for Skelseys to be little more than a guess, in that he acknowledged that he could not give a reliable opinion on that matter without a security analysis of the premises, which he had not undertaken. Even when it was put to him that three would have been manifestly inadequate, his answer was that three would have been insufficient "upon the data that I was given". Nonetheless, ultimately he said that he could not think of circumstances in respect of a nightclub with 200 plus patrons between the ages of 18 and 40 drinking alcoholic liquor, dancing to disco music, playing pool and socialising until 6:30 am on Saturday or Sunday mornings that could adequately be covered by only three guards. 60 When he was retained by BWR, Mr Wilson of AWS had recommended that four or five guards were required. The evidence of Mr Rose and Mrs Rose - who contended (I have found incorrectly) that they had asked for, and AWS had agreed to provide, two guards (in addition to Mr Tukuafu) - implicitly accepts that a minimum of three guards were required. 61 In my view, it can comfortably be concluded that to provide a reasonable level of security at Skelseys required, at the very least, three guards: one permanently stationed at the front entry; one permanently in the vicinity of the dance floor and the bar; and a third (who perhaps could also monitor the pool tables) available to assist either of them, or to relieve if one had to leave his position unattended or assist the other. I accept Mr Jennings' evidence to the extent that, given the speed with which fights can break out, it is unacceptable to leave a high-risk area such as the dance floor unsupervised for any time.

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62 The level of security provided by BWR's security plan did not meet these requirements, but allowed that the dance floor could be unsupervised if the guard with prime responsibility for it was called away elsewhere, whether to go to the bathroom or to assist the guard at the door. It follows that by providing only two security guards, BWR failed to exercise reasonable care for the safety of its patrons, including Luke. 63 No negligent failure to ensure that security personnel, particularly AWS's employee Sione (John) Siasau, attended to their duties. Within BWR's (inadequate) security plan, it was not unreasonable to expect one guard to come to the aid of the other when there was an appearance of trouble, as I have accepted Mr Siasau did here. BWR's negligence lay in failing to provide a level of security that ensured permanent supervision of the dance floor, rather than in permitting Mr Siasau when appropriate to come to the aid of the other guard. 64 No negligent failure to detect or prevent a patron entering the premises armed with a handgun. I do not accept that reasonable care required the use of a metal detector wand to screen patrons entering the premises. I am quite unsatisfied that use of metal detecting wands was standard for this type of premises in 2002. Mr Jennings' oral evidence, after cross-examination, did not sustain the view that, by 2002, the use of metal detectors was a standard precaution in nightclubs, although they were in use in some. Mr Wilson gave evidence (in cross-examination) that in 2002 he had heard of a couple of venues that had used metal detectors at some stage or another. Moreover, there was no known significant history at Skelseys of introduction of weapons such as knives or firearms onto the premises. I therefore do not accept that the failure to use such a device for detection of weapons, or to conduct physical searches, was a breach of duty. 65 Conclusion. It follows that I find that BWR breached its duty to use reasonable care for the safety of its patrons by failing to provide a sufficient level of security, in particular by failing to provide sufficient security guards that there would always be one in proximity to the dance floor. I do not accept the other allegations of breach of duty against BWR.

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No breach of duty by AWS 66 AWS was not bound to do any more than the reasonably prudent and competent discharge of the duties that it had been contracted to perform. It was not BWR's delegate for the purpose of discharging BWR's duties to patrons. Its guard operated in accordance with the system and directions of BWR. AWS was responsible only for the competent performance of duty by its employee, Mr Siasau. 67 No negligent failure to respond to incident. I do not accept that, by leaving his post at the dance floor to furnish assistance to Mr Tukuafu and Mrs Rose near the door, and thus depriving himself of the opportunity to respond immediately to the brawl when it erupted, Mr Siasau breached any duty owed by AWS to patrons. In responding to what he saw at the front door, Mr Siasau was acting in accordance with the arrangements established between the security guards in accordance with BWR's security plan, namely that one would come to the aid of the other when appropriate. What Mr Siasau did was in accordance with, and not in breach of, his duty. The defect was in the plan, which simply failed to provide an adequate number of guards. In that situation, he had to make a judgment as to whether it was more important to remain at his post near the dance floor, or to respond to the incident at the front door, and although with the benefit of hindsight it might be thought preferable for him to have stayed near the dance floor, that luxury was not available to him at the time and, given the arrangements between the security guards and Mrs Rose that one would come to the aid of the other, I do not consider that his decision can be faulted. 68 It was also put that Mr Siasau could not have been adequately vigilant, since he would otherwise have noticed the development of the argument leading to the brawl. However, his failure to observe this is adequately explained by his temporary absence from the dance floor area to assist at the front door at the time when the trouble was brewing. 69 Failure to provide adequate security in response to contractual obligations. This allegation refers to the provision of additional security guards and a metal detector wand, and depends on the terms of the arrangements between BWR and AWS. As I have found that the contract between BWR and AWS did not require the provision of more than one guard (except when Mr Tukuafu was on leave), and did not require the provision of a metal detection wand, no breach of duty by AWS to patrons was involved in its not providing such additional guards or wand. 70 Failure properly to instruct Mr Siasau as to his duties. I accept Mr Wilson's evidence that he instructed Mr Siasau that there were only two guards - the AWS guard and the BWR guard; that Mrs Rose was always at the door; that they had to share the duties, so that the AWS guard should circulate around the club and position himself to be able to see the front door and the interior at the same time; and that if a large group approached the front door both guards should be at the door. The plaintiff submitted that Mr Siasau should have been told not to leave his duties in the internal area unless there was a "real need" to go to assist others elsewhere; I do not accept this, as he was required to act in accordance with BWR's plan and to come to the assistance of the BWR guard at the door when required. In any event, there is no reason for supposing that the incident at the front door did not have the appearance of a "real need" at the time. 71 It was also submitted that it was negligent to employ Mr Siasau to perform the contract at Skelseys after he had completed another shift elsewhere. However, there was no evidence that this was manifested by any signs of fatigue or inattention; to the contrary, Mrs Rose described him as a good, punctual security guard. In any event, in the light of my conclusion as to his whereabouts and actions at the relevant time, his performance of a prior shift elsewhere is of no relevance to the events of the shooting. 72 Conclusion. It follows that no breach of duty is established against AWS.

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Causation 73 Notwithstanding the observations of Gaudron J in Bennett v Minister for Community Welfare [1992] HCA 27, (1992) 176 CLR 408 at 420-421 - to the effect that, if an injury occurs within an area of foreseeable risk then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it may be taken that the breach of the common law duty caused or materially contributed to the injury - a causal connection between breach and injury remains an essential element of the tort of negligence, which the plaintiff must prove - albeit that proof may be inferred from indirect evidence, and may be inferred more readily in some circumstances than in others [Collingwood Hotel Pty Ltd v O'Reilly [73]-[77]]. In this field, the correct approach to causation requires consideration of whether, on the balance of probabilities, if the occupier of the premises had taken the appropriate steps in respect of security, the assault that injured Luke would have been prevented [Wagstaff v Haslam, 2[1], 2[3], 16[63]]. 74 In the light of the conclusions I have reached on liability, the issue of causation has to be considered primarily in the context of the breach found against BWR - namely, failure to provide a sufficient level of security that there was always a security guard monitoring within close proximity to the dance floor. The question therefore is whether, had a security guard been present at his station in the immediately proximity of the dance floor when the trouble erupted, Luke's injuries would probably have been avoided. Mr Marshall SC submitted that a vigilant security guard, proximate to the dance floor, would have detected the incipient trouble, responded by intervening, and probably prevented the brawl and with it the shooting. 75 While there is force in the submission that an unarmed security guard is no deterrent to an armed assailant, the shot was fired, whether deliberately or accidentally, in the course of the melee: there was no shot before the brawl; the shot coincided with the brawl; Luke was involved in the brawl when he was shot; and the shooter escaped at the end of the brawl. While it is unclear whether the firearm was discharged deliberately or accidentally - if it were necessary to do so, I would lean in favour of accidental discharge during the melee as the more probable explanation - it is most unlikely that Luke was a premeditated, or even an intended target; there is nothing to suggest any relevant conflict of any kind between him and the Middle Eastern men - or anyone else - that evening, or previously. In my view, he would not have been shot but for having become involved in the brawl. Prevention or suppression of the brawl would therefore have avoided his injuries. 76 The presence of a security guard in the area near the railings, which was his ordinary post, may of itself have deterred the participants from starting the fight. If not, early intervention would probably have prevented its escalation. There is a substantial body of evidence that the intervention of a security guard in an incipient fight would usually, though not invariably, quell it. Mr Wilson accepted that, ordinarily, if a security guard were in the vicinity of the pool table area, the dance floor or the bar and had observed two men arguing, he would have been able to defuse the situation before it had continued for 30 seconds, and if there were some further shoving or pushing for a minute, to defuse it before it escalated. In my view, the timely intervention of a security guard here would probably have quelled the fight, before Luke became involved in it, or at least before the shot was fired. 77 There was evidence - from Mr Wilson, Mr Tukuafu, and Mr Jennings - that a security guard can detect trouble brewing - that he can "see it in their eyes". I must confess to some doubt that this is a skill of a trained security guard any more than it is of anyone else. But in this case, there is the evidence of Mr Davis that he could sense trouble brewing from a number of indicators for some time before the fight erupted, and of Ms McKay that she observed the situation to be such as to cause her to look around for a security guard, and then go in search of one. In the light of that evidence, I am satisfied that an alert security guard on station near the dance floor would have detected the onset of potential trouble no later than did Ms McKay. This would have allowed sufficient time for him to intervene, if not before the first punches were thrown, then at least before the shot was fired: Ms McKay had time to proceed from the dance floor to the front door, find assistance, and commence to return. In light of what Ms McKay was able to do in the relevant time frame, I do not accept that there was too little time for effective intervention.

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Contributory negligence 80 Both BWR and AWS pleaded a defence of contributory negligence. Mr Campbell SC submitted that Luke was guilty of contributory negligence in (1) going to Skelseys, a known place of last resort, in the first place, with knowledge of the risks associated with such premises; and (2) upon the brawl erupting, voluntarily joining it, exposing himself to a risk of injury even if there was no firearm. 81 I would not find contributory negligence in Luke's decision and action in going to Skelseys, even with knowledge of the risks of such premises, any more than one would find contributory negligence against a plaintiff who drives on the highway, or crosses the road, or works in a dangerous employment, knowing that there are risks involved in doing so. 82 However, voluntary participation in a brawl is another matter. 83 Mr Marshall SC submitted that the evidence did not establish that Luke was a voluntary participant in the brawl. However, in my view, on the probabilities Luke did voluntarily join the brawl. Mr Davis had, earlier in the evening, warned Luke that he thought that there might be a fight and told him to keep an eye on two men of Middle Eastern appearance. He did not see Luke on the dance floor. He did not think that Luke was in the immediate group engaged when the fight broke out, but recalls seeing Luke during the brawl, wrestling with a Middle Eastern man - not Alameddine - on the floor. Mr Caffyn saw a number of the Trotting Club people "come in" and join the fight. No evidence places Luke in the immediate vicinity of the fight when it erupted. There are hints in the evidence that there were some who were endeavouring to "break up" the fight. That Luke was on the ground, wrestling with one of the Middle Eastern men, tells against him merely endeavouring to break up the fight; but even if that were his purpose, it would not overcome a defence of contributory negligence. He was not a "rescuer", but even a rescuer may be guilty of contributory negligence if the rescue attempt is unreasonable, rash, reckless, wanton or foolhardy (although great allowance is made for natural and instinctive responses to situations of danger created by others) [Morgan v Aylen [1942] 1 All ER 489; Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd [2004] TASSC 23, [64]]. Nor was he under a duty to intervene, as a policeman or security guard may have been - but even a policeman bound to prevent crime and apprehend criminals may be guilty of contributory negligence if he acts unreasonably in doing so [Nominal Defendant v Hirst (2004) 43 MVR 515, [2005] QCA 0065: policeman injured in accident arising from pursuit of speeding car guilty of 33% contributory negligence by reason of unreasonable decision in the circumstances to continue the pursuit]. 84 By joining the brawl, Luke failed to exercise reasonable care for his own safety, and materially contributed to his injuries: he would not have been injured at all had he not intervened. In this context - as distinct from that of voluntary assumption of risk - it matters not that what eventuated far exceeded the ordinary risks of a fist fight, because of the weapon that was used. 85 The apportionment legislation provides for Luke's damages to be reduced "to such extent that the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". This exercise involves not only a comparison of culpability, but also a comparison of the relative importance of the acts of the parties in causing the damage [Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, (1985) 59 ALR 529, 532-3, citing Stapley v Gypsum Mines Ltd [1953] AC 663, 682; Smith v McIntyre [1958] Tas SR 36, 44; Broadhurst v Millman [1976] VR 208, 219]. 86 It is essential to bear in mind that the present case does not involve balancing responsibility between Luke and the shooter; rather, it involves an evaluation of the relative responsibility for Luke's damages of his own decision voluntarily to enter into the fray, and BWR's failure by a security guard to prevent it. On the one hand, there is a greater degree of culpability in Luke's voluntary decision to become involved in the fight, than in BWR's negligent failure to prevent or suppress it. The magnitude of the consequences for Luke cannot be allowed to mask the recklessness of his conduct in becoming involved. On the other, this is offset to a degree by the circumstance that it is a foreseeable consequence of providing insufficient security that patrons might join a fight once it has commenced - a risk that would have been avoided, or at least significantly reduced, had a sufficient level of security been in place. This is a case in which the conditions for the shooting would probably have been averted had BWR exercised due care, but Luke had an ongoing opportunity to avoid danger to himself yet voluntarily engaged in the melee. Weighing those two considerations, I assess Luke's contributory negligence at 50%.

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Damages 88 As the plaintiff succeeds against BWR - albeit subject to a substantial reduction for contributory negligence - and although BWR is in liquidation (leave to proceed against it having been given), and lest I be wrong in my conclusion that Luke fails against AWS, I must assess Luke's damages. 89 Luke was born on 4 April 1978. 295 weeks (5.7 years) elapsed from the date of the shooting on 15 December 2002 until the conclusion of the trial in August 2008, when he was 30 years of age. A thirty-year-old male has a life expectancy of 55 years according to the Australian Life Tables, and there is no evidence that Luke's life expectancy is impaired. The five percent multiplier for his life expectancy of 55 years is 996.4, and for what would have been the remaining 35 years of his working life to age 65 is 875.6. 90 Luke grew up and attended school near Liverpool in south-western Sydney. He left school in year ten in 1993, having completed his School Certificate. His father was a bricklayer and a horse trainer, and when Luke he left school, he commenced to work in the stables at Warwick Farm. The following year he became apprenticed to his father as a bricklayer, but this was interrupted after about 18 months, when he commenced working for Mark Connors, a horse trainer, at Warwick Farm. He worked there full time - 40 hours a week and over time - for eighteen months to two years, becoming Mr Connor's foreman. 91 In about 1998, in order to complete his trade qualification, he resumed his apprenticeship with his father - although it remained his intention to return to the racing industry rather than work as a bricklayer. However, in October 1999 he was involved in a motor vehicle accident as a result of which he fractured his left leg, was hospitalised for three and a half weeks, had paraesthesia for six and a half months, underwent several operations, and was off work for more than twelve months. He was able to walk properly on his left leg after about a year, but it continued to give him trouble, and it still does today. Previously, Luke had been an enthusiastic participant in rugby league and rugby union, but the injury to his leg in the motorcycle accident put an end to that, as it did to any potential career as a bricklayer. It appears that he was assessed as having a total whole person impairment as a result of the motor cycle accident of 15%. He recovered a substantial award of damages. 92 In January 2001, Luke resumed some part time work - 15 hours a week - as a stable hand with Bruce Cross, a trainer at Warwick Farm. He was unable to work full time because of his left leg, which ached in cold weather and rain, but he says he had no difficulty in performing his duties, which included filling water containers, walking, feeding and grooming horses, and sweeping out stables. He was then earning $250 net per week. In January 2002, he commenced full time employment with Joseph Pride, another trainer at Warwick Farm, for which he was paid $550 net per week. Mr Pride (unlike Mr Cross) had a training regime that involved extensive walking of the horses, and Luke found that that his left leg could not cope with this; he left after about six months. 93 On 17 July 2002, Luke commenced work as a car salesman for Suttons Holden at Homebush, initially earning $800 per week net ($400 per week net salary, and about $400 per week commission), plus company car and $250 per month for petrol. After completing a training course, his weekly income increased to about $2,000 net. Although he enjoyed this work, he found that he became too tired to cope with it seven days a week. In September 2002, he was hospitalised for four days for pancreatitis and off work for about three weeks. He did not return to Suttons, but obtained work as a stable hand for Guy Walker, another Warwick Farm trainer. 94 In the shooting, Luke suffered a gunshot wound to the head. When seen by ambulance officers at 4:31 am, he had a Glasgow Coma Score of 4. On 15 December 2002 he underwent a debridement of the open head injury, with removal of two large scull fragments, and an emergency craniotomy for decompression of cerebral injury and insertion of a right extra-ventricular drain and intra-cranial pressure monitor. He was to remain in intensive care until 9 January. On brain stem testing on 17 December there was evidence that he was not "brain dead". Sedation was reduced on 20 December, but his GCS remained at 5 (intubated). By 22 December it had improved to 8 (intubated), but it was obvious that his left eye had been destroyed. He underwent a tracheostomy on 24 December 2002. On 25 December, his GCS was still 8/9 (intubated). He remained intubated, at approximately the same GCS level, on 31 December. On 1 January he first obeyed some commands to squeeze another's fingers, and was noted to be visually tracking. He appeared to have a right hemiparesis. On 3 January 2003, he underwent a further wound debridement and scalp plastic surgery. He improved progressively, and was transferred from the Intensive Care Unit to the ward on 9 January, where he remained for a further month. On 13 January 2003, he had a deep vein thrombosis of the right lower limb. On 31 January 2003, he underwent enucleation of the left eye and the fitting of a glass prosthesis. He had emerged from post-traumatic amnesia by 3 February. On 6 February 2003 his tracheostomy tube was removed and he was transferred to the Brain Injury Rehabilitation Unit, where he then spent seven months. On 14 July 2003, he had a titanium cranioplasty. In September 2003, he was discharged from the Brain Injury Rehabilitation Unit to live with his father. He required and received 24-hour a day care. 95 On 11 October 2003, his first epileptic seizure was noted. Since then, he has had a further eight seizures of varying severity. On 2 August 2004, he was examined by Dr Delaney, an ophthalmic surgeon, who diagnosed a difficulty in judging depth and distance due to loss of the left eye. On 6 August 2004, he underwent neuropsychology testing by Peter Rawling, who reported severe motoric, cognitive and behavioural deficits with an IQ result in the borderline defective categorisation. 96 On 28 November 2004, he was admitted for further rehabilitation at Royal Rehabilitation Centre Sydney, and underwent a multi-disciplinary rehabilitation programme consisting of physiotherapy, speech therapy, neurological therapy and occupational therapy. He was discharged on 23 December 2004. He was readmitted to the Royal Rehabilitation Centre Brain Unit in April 2005, and discharged in June 2005. 97 Ms Glynis Flanagan, occupational therapist, assessed him on 12 August 2005, and saw him a second time on 30 January 2007. Ms Sue Beaver, occupational therapist, assessed him on behalf of the second defendant, on 3 December 2007.

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100 Dr Garrick, neurologist, who saw Luke on 12 August 2004, reported: Mr Quintano has suffered a severe injury to the brain and left orbit resulting in the loss of the left eye and injury to the frontal and temporal brain area … He will have permanent impairment of cognitive function and reduced frontal lobe function. 101 Dr Mellick, who also saw Luke for the second defendant, was of a similar opinion. Dr Buckley, rehabilitation specialist, who examined him on 16 August 2005, thought that he required 24-hours a day care, and reported that he had: Extremely severe traumatic brain injury with deficits of higher cognitive function and behaviour, and physical neurological impairment. 102 Mr Rawling reported: Memory functioning was at the level of his compromised IQ [borderline defective range]. He had problems with memory tests requiring the processing of the information presented for recall for meaning but did better on word learning tests where minimal processing for meaning was required and where the information was presented several times. A degree of rigidity of thinking was evident on a test of executive functioning and at the behavioural level, Luke was disinhibited, euphoric and lacking in social judgment. The brain damage caused by bullet wound then has resulted in severe motoric, cognitive and behavioural deficits. Luke continued to require assistance in many of the activities of daily living. His cognitive deficits were clearly of a nature and severity that would make resumption of any kind of paid employment impossible. In addition of course, his deficits will certainly greatly diminish his quality of life, reducing radically the range of activities in which he could engage and his chances of forming any meaningful and lasting interpersonal relationships. He lacked the ability to manage his financial affairs … 103 Mr Fathers, a psychologist who assessed Luke on behalf of the second defendant seven and a half months later, substantially confirmed these observations. 104 Luke, and his father, gave evidence of his pain and suffering and disabilities. They did so with moderation, restraint and frankness. If anything, Luke expressed a perhaps excessively optimistic view of his current capabilities. 105 Luke has suffered his injuries and disabilities for six years before trial, and will continue to do so for a further 55 years. Today, Luke has achieved a remarkable level of independence with many activities of daily living. He can now stand on his own and get into and out of his wheelchair unaided, so long as he has something onto which to hold, but he is at considerable risk of falling, which frightens him. He can manoeuvre himself from his bed into his wheelchair unaided, requiring assistance only to be transferred to and from the commode chair for a shower. He can boil a kettle and make a cup of coffee, make sandwiches for lunch and grill a steak. He can wash, shower and shave, and dress and undress himself. He can "nearly" change the sheets on his bed, wash them and hang them out on the line. He can use a mobile phone, and has learnt to use a computer. He follows rugby league, rugby union and racing with enthusiasm, and demonstrates current knowledge in those fields. 106 The current maximum amount recoverable for non-economic loss under (NSW) Civil Liability Act 2002, s 16, is $442,000. For the plaintiff, Mr Marshall SC submits that Luke's case is no less than 90 percent of "a most extreme case". For the second defendant, Mr Campbell SC submits that the case is 75 percent of "a most extreme case". 107 A brain-damaged plaintiff retaining a restricted ability to walk but with an exceptionally limited capacity for an independent life has been held to qualify as "a most extreme case" [Marsland v Andjelic (1993) 31 NSWLR 162, 169-70]. So too has a low-level paraplegic who adapted remarkably well to her disabilities [Dell v Dalton (1991) 23 NSWLR 528, 532]. On the one hand, I accept that Luke's hemiplegia is more disabling in various respects than a paraplegia, and that this is exacerbated by the loss of an eye, the epilepsy, and the intellectual impairment. On the other, Luke retains substantial although somewhat impaired intellectual function, and has achieved a remarkable degree of independence with activities of daily living; and, to some extent, his ongoing disabilities are the sequelae not of the shooting but of the earlier motorcycle accident - his left leg, though it is now his better leg, continues to cause him trouble. Nonetheless, without the disabilities that result from that accident, he would still be an intellectually-impaired hemiplegic. I assess his non-economic loss at 90 percent of a "most extreme case", which is $397,800.

[38]

Past economic loss 108 The plaintiff claims $339,250, being $1,150 net ($1,630 gross) per week for 295 weeks from December 2002 to the trial. The second defendant allows $116,000, being $375 net per week for that period. 109 Immediately prior to the shooting, Luke was working 24 hours per week for Mr Walter, and performing some additional strapping. He says that his leg occasioned him no restriction in performing the duties of a stable hand, and that although it was tired at the end of each day, it never stopped him going to work the next. He was earning $600 per week net. Luke says that Mr Walter had told him that when one of the then current foremen left, which was anticipated to be within a couple of months, he would succeed him. Immediately before the shooting, his intention was to remain with Guy Walter and become his foreman. He had no intention, and probably - because of his left leg injury - no ability, to return to bricklaying, and saw his future in the horse racing industry, with the ultimate ambition of perhaps becoming a trainer. He held Mr Walter in high regard and had a good relationship with him. Mr Walter gave evidence, which was not challenged, that Luke had the capacity to become a foreman and that his prospects of promotion in the short to medium term were good. The base earnings of a foreman in Mr Walter's employment in December 2002 were about $900 per week, plus bonuses. By the time of the trial, his foremen were earning about $1,300 per week. 110 Although I accept that Luke's earning capacity was already restricted to some extent by his pre-existing left leg injury, he was nonetheless then earning $600 net per week. In my view, Luke had reasonable though far from certain prospects of promotion to foreman, and to a wage of about $1,000 net by late 2005. Taking into account that, by reason of his pre-existing leg injury, there was a risk as to his ability to sustain full-time work, I assess his probable earnings averaged over the period to trial, but for the shooting, as in the order of about $700 net per week, which, for 295 weeks, amounts to $206,500.

[39]

Future economic loss 111 The plaintiff claims $1,300 net ($1,785 gross) per week for 35 years, less 15 percent for vicissitudes, amounting to $967,538. The second defendant would allow $400 net per week for that period, less vicissitudes, amounting to $297,704. 112 While the prospects of a bricklaying career had been ended by his motorcycle accident and associated leg injury, Luke's career in the horse racing industry left him with a substantial residual earning capacity. In my judgment, Luke would probably have become a foreman in Mr Walter's stable, or equivalent, by August 2008, earning about $1,300 net per week. The risk that he would not have done so is offset by the prospect, not fanciful, that he would have done better, and might have achieved his ambition of becoming a trainer. 113 I have assessed Luke's future economic loss on the basis that he would have been a foreman in the stable of a metropolitan trainer, notwithstanding the evidence that he and his father had a plan of moving to somewhere like Port Macquarie and residing in a rural setting. Although this had been contemplated before the shooting, and Luke had driven to Port Macquarie to look at the area, it was really not much more than a dream, and its implementation only became possible with the damages from the motor vehicle accident. In any event it made little sense (as his father observed) to have two trainers for a small rural team. Luke's social life, and his girlfriend, were located in Sydney. There is no doubt that Luke's welfare and rehabilitation was a significant factor in the decision to move. I doubt that it would have eventuated, at least in anything less than a decade or so, but for the shooting. Employment in the stable of a metropolitan trainer is the best proxy for his uninjured earning capacity. However, his ongoing difficulties with his left leg suggest that his prospects were more uncertain than average, on which I account I provide for contingencies at 17.5%. 114 Reference has already been made to Mr Rawling's opinion, that Luke's cognitive deficits are such as to make resumption of any kind of paid employment impossible. Dr Buckley agreed. So did Mr Fathers. Dr Garrick thought he was unlikely to be fit for any work activity. There was no medical evidence to the contrary of this proposition. Although Mr Campbell SC submitted that it was not unrealistic to suppose that Luke could have still have a useful role in horse training, perhaps in a partnership, to my mind it is improbable in the extreme that he could make an economic proposition out of this. In my view, he has no residual capacity for remunerative employment. 115 I allow $1,300 net per week for 35 years to age 65, reduced for contingencies by 17.5 percent, which results in a sum of $939,081.

[53]

Q. Did you do what they suggested? A. All the time. 121 In my view, this evidence is insufficient to sustain a claim for damages for gratuitous care in respect of the period while Luke was in hospital. There is no doubt that his father's presence during that time was important and supportive, and reflects more than what many parents might appropriately have done. But that is not to say that it is compensable. Damages in respect of gratuitous services are recoverable only in respect of services of a domestic nature, services relating to nursing or services that aim to alleviate the consequences of an injury, for which there is a reasonable need, that has arisen solely because of the injury [(NSW) Civil Liability Act 2002, s 15(1), (2)]. They are not recoverable for simply "being there", or "being on-call" [Ren v Mukerjee (ACTSC, Miles CJ, 12 December 1996), [85]; Rotumah v NSW Insurance Ministerial Corp (SCNSW, Donovan AJ, 6 April 1998), [103]]. Luke was in a hospital staffed with professional nursing and other staff and fully cared for by them. In Marsland v Andjelic, Kirby P and Meagher JA said (at 172): There is no doubt that the amount of care provided by the hospital staff will affect what amount or what value of compensable services can be successfully recovered. In another case, attendance by a parent at a hospital might be of insufficient duration or of a nature inappropriate to give rise to a successful claim. It is correct to note, as the master did, that hospital visits as such may not in particular cases be regarded as compensable services. However, in this case it was found by the master that the appellant's mother attended hospital for between six and eight hours a day after the appellant's admission. From November 1987 she became closely and actively involved in his therapy. To an unspecified extent she was involved in his physical and speech therapy. In addition the master found that, from the time of the accident, the appellant's mother had devoted much of her time and effort to the welfare of her son. Because of the particular facts of this case, evidencing, clearly enough, that the appellant's mother participated from at least November 1987 in his treatment we conclude, again with respect, that the master erred in holding that past voluntary domestic care could not be compensated until six months after the date of the appellant's discharge from hospital. We are of the view that the master's finding was not open in light of the facts found by him. In our view, as suggested by counsel for the appellant, by the date of appellant's discharge the six month period provided by the Act had expired. Compensation was thus recoverable from, at least, that date. 122 While Luke's father provided some assistance to nursing staff, I am unpersuaded that there was a relevant need for it, over and above the services provided by the hospital; there was no "subvention" by which he provided services that would otherwise have been provided by the hospital and to that extent reduced the cost of hospital care; and he did not become involved in Luke's therapy in the manner in which the plaintiff's mother was in Marsland v Andjelic. 123 Since Luke's discharge in September 2003, he has been continuously in the care of his father, except for the periods of his two re-admissions to the Rehabilitation Unit, and a few occasions on which Luke has visited a neighbour for a few hours, or gone away for the weekend in the care of friends. In October 2003, they moved to Port Macquarie, and subsequently - once the house on it was completed - to Gum Scrub, where they reside on a 100 acre block purchased in Luke's name with the proceeds of the settlement of his motorcycle accident claim.

[55]

127 There is a significant body of opinion - from Dr Buckley and Ms Flanagan - that Luke has at all material times needed full-time care, and continues to do so. Ms Flanagan's opinion that Luke has required and will forever require full-time care was unshaken in cross-examination. Dr Buckley was not cross-examined. Ms Beaver, the occupational therapist who saw Luke for the second defendant, did not share that view, suggesting that his need for supervision could sufficiently be met by an emergency alert system, which could notify a neighbour in an emergency; but Ms Beaver's cross-examination demonstrated, I think, that her perceptions (not unlike Luke's own) were somewhat optimistic, particularly in respect of his ability to walk, and his balance, and the extent to which his epilepsy was controlled. 128 It is true that Luke can now perform many of the activities of daily living for himself, and has become independent in transfers to and from his wheelchair (except to the shower commode). However, he cannot perform all of those activities. Although Luke has become much more competent in activities of daily living - for example, he can cook himself a simple meal, make and receive telephone calls, and use a computer - his father still has to assist with some, such as cutting his food. 129 It is also true, as the second defendant submits, that those who recommended 24-hour care did not descend to any level of specificity or reasoning save his epilepsy, and I am content to accept that the risk of an epileptic seizure alone might not justify the prescription of 24-hour care. However, there is not merely the risk that Luke could have an epileptic fit. Luke faces not only a significant risk of an epileptic seizure (and there have been nine to date, despite prophylactic medication), but of such a seizure in a setting where, if he falls to the ground, he cannot get himself up. He does not have the bilateral upper body strength and use that a paraplegic would have to recover from a fall. That distinguishes the case from one of mere epilepsy; the attendant risks are increased by Luke's other disabilities. There is also a realistic risk that, quite apart from a seizure, he could fall in the course of getting out of bed, or transferring to or from the toilet, and if he did, he would be unable to recover without assistance. Luke's impairments - of his sense of smell, of his vision, of his mobility and of his judgment - also compromise somewhat his ability to detect and respond to emergencies.

[56]

130 Given this combination of epilepsy, immobility, lack of balance and compromised capacity to respond to emergencies, I do not accept that the risk of a fall, a seizure or some other crisis would sufficiently be managed by some untried and unproven "alert" system to a neighbour a kilometre or so away. In any event, Luke should not have to be dependent on the good offices of such neighbours, nor subject to the vicissitudes of their absences from time to time. 131 The fact that his father - with whom Luke has lived since the shooting and who is well-positioned to judge, and would no doubt enjoy an opportunity to have a life of his own - has not been and is not prepared to leave him unsupervised, is telling. Two expert witnesses, one unchallenged and the other unshaken, support the view that he requires that level of care. The only witness of a contrary view was cross-examined, not without effect. The combination of Luke's intellectual impairment, physical difficulties, and cognitive and psychological vulnerability, means that the risks in his case are significantly greater than those associated with mere epilepsy. Luke ought not be exposed to additional risks by reason of his disabilities, nor be dependent on the good offices of his family and friends. I am satisfied that, except when in hospital, Luke has at all material times had, and continues to have, a reasonable need for full-time attendant care, albeit mainly supervisory in nature 132 It follows that, for the period to trial, Luke has sustained a need for care - which was provided gratuitously by his father, for at least 40 hours a week - except for the periods (1) to September 2003 (while he remained in hospital), (2) from 28 November 2004 to 23 December 2004 (while he was in the Royal Rehabilitation Centre), and (3) from April 2005 to June 2005 (his second admission to the Royal Rehabilitation Centre - Brain Unit). These periods total (48 + 4 + 8) 60 weeks, leaving 235 weeks during which his father provided compensable gratuitous care. At the prescribed rates for the relevant period, this totals $210,837.

[57]

Future Care 133 The plaintiff claims 24-hour care for seven days a week at an average of $447 per day for life ($3,117,736) plus keep at $111 per week ($110,600), and superannuation at 9 percent of wages ($280,985). The second defendant allows 21½ hours per week at $39 per hour ($840 per week), capitalising for 37 years to $750,624. 134 The measure of Luke's compensation in this respect is the cost of satisfying his reasonable need commercially, rather than a prediction that the need might, through gratuitous care, be met more economically. This reflects the principle that a plaintiff ought not be required to be dependent on the good offices of family or friends [Van Gervan v Fenton [1992] HCA 54, (1992) 175 CLR 327, (1992) 109 ALR 283, (1992) 66 ALJR 828, (1992) 17 MVR 29, (1992) Aust Torts Reports 81-188]. 135 It follows from the above conclusions in respect of Luke's need for care to date and continuing that the plaintiff has sustained a case for full-time care. There is no reason to suppose that that need will decrease in the future, nor that he would have required it but for the shooting. As there is no evidence that Luke's life expectancy is in any way compromised, so there is no reason why provision should not be made for such care for his life expectancy of a further 55 years. 136 Dr Buckley recommends a live-in carer with board and keep, which is a more economical proposition than shift care. 137 The only evidence of the cost of care is contained in a report of Complete Domestic Care dated 2 May 2007, which quotes, inter alia, rates charged by the Rural Home Nursing Service at Wauchope, near Port Macquarie. Although this report mentions that 24-hour live-in positions can be difficult to fill, it also records that Rural Home Nursing Service may charge the 24-hour live-in rate but split it into two shifts, depending on an assessment of the client's care dependency. Given his competence in activities of daily living, and that his requirement for care is largely supervisory, Luke's care dependency is at the low end of the scale.

[59]

Gardener/Handyman assistance 139 The plaintiff claims three hours per week at $48 per hour for life, amounting to $143,482. 140 Although it is clear that Luke will require assistance with handyman and gardening tasks, it is also clear that his attendant carer will not have to be engaged full-time in tending to Luke, the role being largely supervisory. At present, Luke's father performs these tasks as well as being his carer. In my view, there is no reason why the attendant carer cannot accommodate the gardening and handyman tasks. 141 There is an additional claim of $52,694 for assistance with property maintenance, including management of fences, trees and paddocks. Essentially, this represents about 100 man-hours per annum at $55 per hour. Luke's father also currently provides these services. 142 In my view the additional costs of maintaining a 100-acre rural property purchased after the shooting ought not be allowed. I have assessed Luke's future economic loss on the basis that he would have been a foreman in the stable of a metropolitan trainer, notwithstanding the evidence that he and his father had a longer-term plan of moving to somewhere like Port Macquarie and residing in a rural setting. While it is conceivable that, had he remained in Sydney yet acquired such a property, he might have spent 100 hours a year himself in tending to it, it is more likely that his father would have moved to the country and maintained the property, or at least that they would have shared the responsibility; it is distinctly possible that if he were based in the metropolitan area, he would have had to pay someone out of his ordinary income to maintain any such property. In any event, given the limited care responsibilities that his full-time carer will have, these responsibilities could be incorporated within those of the carer. 143 I will therefore not make separate provision for Gardener/handyman assistance; it is included in the provision for a full-time live-in carer, because Luke's relatively low care dependency admits of a carer with those additional responsibilities.

[67]

Additional transport expenses 161 The plaintiff claims $175,227, comprising $141,240 (being the additional capital cost, calculated as $141.75 per week, of a modified Chrysler Voyager van over a Holden Commodore sedan based on a turnover every six years), plus $33,987 (being the additional maintenance and running expenses of $34.11 per week on the same basis). The second defendant allows $39,288 (being the additional standing costs of a Renault Kangoo over a Commodore, based on a turnover every ten years). 162 The occupational therapists agreed that Luke should have a wheelchair accessible vehicle. Ms Flanagan priced the Kia Carnival and the Volkswagen Transporter; Ms Beaver priced the Renault Kangoo. They agreed that the total cost of a converted Renault Kangoo was $56,746, which compared to $75,646 for the Kia, and $85,267 for the Volkswagen. 163 Mr Parnis, NRMA Special Vehicle Needs consultant, priced a converted Chrysler Voyager at $104,580. This included a wheelchair access conversion self-drive of $39,000, whereas the two occupational therapists proceeded on the basis, which does not appear to have been disputed, that it was unlikely that Luke would ever drive himself. It is not entirely clear what if any cost would be involved in modification for wheelchair access without self-drive. For a comparable standard vehicle, Mr Parnis priced a Holden Commodore, at a total cost of $39,064. 164 It can therefore be said that the wheelchair-converted Kia would exceed a standard Commodore in cost by about $35,000, a wheelchair-converted Volkswagen would do so by about $45,000, and the wheelchair-converted Kangoo by about $17,000. 165 Luke is able to transfer into and out of an ordinary vehicle from his manual wheelchair, and in the absence of the agreement of occupational therapists that he should have a wheelchair accessible vehicle, the contrary might well have been argued. However, in the light of the agreement between Ms Flanagan and Ms Beaver on this issue, I should accept that he has a reasonable need for a wheelchair accessible vehicle. In the absence of any evidence that he is likely to drive, I do not accept that he requires one with a "self drive" conversion. 166 It is true that the only criticism advanced of the Renault Kangoo was that it was a small van, which, while suitable for local travel, would have limited capacity for use on vacations because of the limited space for luggage and any additional equipment to be taken. However, in my view, if (as was common ground) the Holden Commodore (base cost $40,000) is to be used as a comparator, then it is not reasonable to select the much more modest Renault Kangoo (base cost $29,000), nor the Kia Carnival (base cost $41,900). That leaves the Volkswagen Transporter, and possibly the Chrysler Voyager, and implies an additional capital cost of about $55,000, which on a seven-year turnover is $123.62 per week, and for life capitalises to $123,181. Additional maintenance and running expenses of $27.69 per week (in accordance with Mr Parnis' report which, given the comparability in price of the Volkswagen and the Chrysler, is sufficiently analogous) capitalise to $27,590. I allow a total of $150,771.

[70]

Additional accommodation costs 172 In principle, the damages to which Luke is entitled under this head should represent the extent to which, during his lifetime, his accommodation costs are increased by his disabilities occasioned by the shooting. In practice, this is ordinarily measured by the costs of converting an existing residence to reasonably suit his disabilities, or the additional costs of erecting a suitable residence (over and above those of a standard residence). 173 Prior to the shooting, Luke spent part of his time in his father's home, and part with his girlfriend. He and his father had discussed the possibility of moving to a rural area, and they were contemplating a long-term plan of finding a rural property on which they could conduct some kind of horse training enterprise. They had in mind a place 20 or 25 minutes away from Port Macquarie on some acreage with peace and quiet. Luke had already driven up to Port Macquarie looking for possible properties before the shooting. He and his father wanted to move together there. It is reasonably likely that, at least in the long term, they would have done so. Ultimately, by reason of the settlement of his motorcycle accident claim, there were available funds with which to purchase the Gum Scrub property, and to build a home on it. 174 His father built the house himself. It is "wheelchair friendly". Mr Quintano Snr said that it cost $38,000 to build the house, without "the extra water tank". Although the evidence is imprecise, it seems that this was funded, in part, by a Victims Compensation award, in part by borrowings from a bank, and in part provided by Mr Quintano Snr's mother. Because of Luke's disabilities, the house was built on the highest flat site on the block, so that the back entrance was flat to the ground. Although the doorways were not made wider than usual, steel door jams were used, so that they would not be damaged by impact with a wheelchair. For similar reasons, the house is blocked and tiled right through. Luke explained that the external door was at ground level and that he could move in and out of the house and throughout it internally it in his wheelchair, and also around the house externally on a pathway. Rails have been installed for his assistance. Mr Quintano Snr said that these modifications did not increase the overall cost. If additional funds were available, he would install a lap pool, in which Luke would be able to exercise.

Quintano v B W Rose Pty Ltd & anor

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