Rooty Hill RSL Club Ltd v Karimi

CATCHWORDS: ASSOCIATIONS AND CLUBS - occupier of licensed premises - duty to patron - club security standard operating procedures - policy that all parties to dispute evicted without assessment of aggressor's identity - whether club delegated responsibility for security of patrons to security firm - TORTS - negligence - duty of care owed by occupier of licensed premises to patron - assault by another patron - breach of duty of care - plaintiff and third defendant evicted from club through separate entrances after altercation - whether reasonably foreseeable that third defendant might return and assault plaintiff - security guards' assessment of third defendant's condition - additional steps available but not taken - whether conduct unreasonable

LEGISLATION CITED: Evidence Act 1995 (NSW) Registered Clubs Act 1976 (NSW)

Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91 Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351; (1999) Aust Torts Reports 81-528 CASES CITED: Oxlade v Gosbridge [1998] NSWCA 167; (Court of Appeal, 18 December 1998, unreported) Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wagstaff v Haslam [2007] NSWCA 28; 69 NSWLR 1

Allied Security Group Pty Ltd (Appellant) PARTIES: Tarique Karimi by his tutor Qudsia Askarzada (First Respondent) Rooty Hill RSL Club Limited (Second Respondent)

Mr SG Campbell SC / Mr AB Parker (Appellant/Allied Security) COUNSEL: Mr PJ Doherty SC / Mr P Biggins (First Respondent/Karimi) Mr ML Williams SC / Mr RC Scruby (Second Respondent/Rooty Hill RSL)

Curwoods Lawyers (Appellant/Allied Security) SOLICITORS: David Legal (First Respondent/Karimi) McCabe Terrill Lawyers (Second Respondent/Rooty Hill RSL)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40626/2007 CA 40623/2007 SC 20092/2006

ALLSOP P BASTEN JA BELL JA

Friday 30 January 2009 Rooty Hill RSL Club Limited v Tarique Karimi by his tutor Qudsia Askarzada Allied Security Group Pty Limited v Tarique Karimi by his tutor Qudsia Askarzada Judgment 1 ALLSOP P: I agree with the orders proposed by Bell JA and with her Honour's reasons. 2 BASTEN JA: I agree with the orders proposed by Bell JA and with her Honour's reasons. 3 BELL JA: Introduction The respondent, Tarique Karimi, suffered serious injury as the result of an assault, which was committed on him in the car park of the Rooty Hill RSL Club (the Club) by an intoxicated patron named Michael Smith. The assault occurred at around 11.30pm on Saturday 19 April 2003. Mr Karimi had been the innocent victim of an earlier unprovoked assault by Michael Smith inside the Club that evening (the initial incident). As a consequence of the initial incident both men were evicted from the Club by security guards employed by Allied Security Group Ltd (Allied). The departure of each was managed by Allied staff such that Mr Karimi and his companions left by the rear, western, entrance and Mr Smith and his girlfriend, Ms Cameron, left by the front, eastern, entrance. Mr Smith and Ms Cameron told the security guards that they intended going home. A security guard saw them drive out of the front car park. This information was conveyed to the security staff at the western entrance who then invited Mr Karimi and his companions to leave. It appears that contrary to the representations made to the security staff, Ms Cameron drove Mr Smith into the western car park. As Mr Karimi walked through the car park Mr Smith ran up to him and "king hit" him with sufficient force to knock him backwards to the ground. Mr Karimi was conveyed in an unconscious condition to hospital where he remained comatose for around two months. He suffered significant residual brain damage as the result of the assault. 4 Mr Karimi brought proceedings by his tutor in the Supreme Court, in negligence against the Club and Allied, and in trespass to the person against Michael Smith. The Club cross-claimed against Allied and Mr Smith. Mr Smith did not enter an appearance or take any part in the principal proceedings. He had not been served with the cross-claim at the date of the trial.

5 The negligence alleged against the Club and Allied was particularised as the failure to devise and maintain a system by which "offenders" such as Mr Smith "had completely left the premises" before "victims" such as Mr Karimi were permitted to leave. Further particulars of negligence against the Club were its failure to require Allied to devise and maintain such a system and to satisfy itself that Allied had proper procedures in place for dealing with an incident such as the assault that occurred in the car park. The further particulars of negligence against Allied were the failure to escort Mr Karimi to his vehicle and/or to advise him that he should not return to it unaccompanied. 6 Mr Karimi's condition had not stabilised by 15 November 2005 and on that date an order was made by consent for the separate determination of the question of liability. This was determined by Grove J who gave judgment for Mr Karimi against each of the three defendants for damages to be assessed. His Honour gave judgment for the Club on its cross-claim against Allied for contribution to the extent of one half of the damages payable by it to Mr Karimi. 7 The orders made in consequence of the determination of the separate question are interlocutory. The Club and Allied sought leave to appeal against them. The leave application was heard concurrently with the appeal. It is appropriate that leave be granted to bring each appeal.

8 It appears that Mr Karimi has no memory of the events of the evening. He did not give evidence. Oral evidence was led in his case from Ali Baryalei, who was one of his companions; Michael Newson, a security guard employed by Allied who had been on duty at the time of these events; Brett Dale, one of the Club's first aid officers; Ms Cameron and Richard Jennings, a security consultant.

9 The Club called no evidence. 10 Allied led evidence from the three security guards who were involved in the removal of Mr Smith from the Club that night; Mr Pale-Eli; Mr Scholes and Mr Peterson.

11 His Honour appears to have accepted the evidence of each of the witnesses save that of Ms Cameron, whom he found to be unreliable. Nothing turns on the rejection of her account. The facts were largely uncontroversial. In addition to the oral evidence, there were documents in evidence which contained contemporaneous accounts of the initial incident and its aftermath, which included an incident report prepared by Mr Namrawi, the security guard responsible for Mr Karimi's removal from the Club (Exhibit "M"); an incident report prepared by Mr Pale-Eli, the security guard responsible for Mr Smith's removal from the Club (Exhibit "N"); a typed, fuller, incident report submitted to the Club by Allied (Exhibit "O"); and an incident report prepared by Mr Avery, one of the Club's first aid officers (Exhibit "F"). A recording taken by the Club's security cameras showing the interaction between Mr Smith and security staff inside the Club and on the front footpath, and the interaction between Mr Karimi and security staff at the western foyer, was also in evidence (Exhibit "J").

12 The Club is one of the largest licensed clubs in New South Wales and has over 48,000 members. On a busy Saturday night, such as this one was, there would have been several hundred people in the Club. The complex includes bars, restaurants, theatres, dance facilities, a fitness/aquatic centre, a TAB lounge and gaming area. The building is constructed on a north-south axis. At the northern end a motel belonging to the Holiday Inn chain adjoins it. Glass doors give out onto the western foyer and a ramp with five steps at either end leads down to the western car park. There are entrances to the car park at the northern and southern ends. The northern entrance is closed late at night. The evidence did not establish whether it was open or closed at the time of these events. The eastern entrance to the Club gives out onto Sherbrooke Street. The front car park is located on the opposite side of Sherbrooke Street.

13 Allied security guards patrolled inside the Club and an external team of Allied guards patrolled the outside of the complex including the car parks. Allied security staff wore uniforms bearing the Rooty Hill RSL Club emblem. They were equipped with two-way radios which enabled them to communicate with one another via the operator in the control room. The staff in the control room were also Allied employees. They controlled the security cameras which were located throughout the complex. Screens in the control room displayed images taken by the security cameras. In the event of an incident the control room operator was able to move the camera in order to film the incident. Security cameras were located in the western car park but the evidence did not disclose whether they could be trained on the entrances to it.

14 Mr Karimi was a member of the Club. He was a slim man of around 5' 11" who was aged 24 years. He and his companions were members of the Afghan community. None of them were drinking alcohol on this evening. They were accustomed to visiting the Club to play snooker, which is what they were doing on this night. Ali Baryalei, who is described as being of slim build and around 5' 9", was aged 21 years. The other members of the group were Mr Baryalei's father and another man, Ahmed, and Ahmed's girlfriend. The group was standing near the roulette table watching the game when Michael Smith, a "stocky, tall guy" walked up and stood next to them and started "butting in". (Black 21.C) He was flexing his muscles and he looked pretty drunk. It appeared to Mr Baryalei that Mr Smith had something against Mr Karimi; "he just wanted Tarique, wanted to fight Tarique. And Tarique basically got - he got into a scuffle and from what I recollect he basically hit Tarique. A fight broke out. I tried to break it up. They fell to the ground and basically security was pretty much there after that, so." (Black 21.O-R)

15 The incident report prepared by Mr Namrawi recorded that at approximately 11.10pm he heard a shout coming from the gaming area and that a member of the Club's staff, Peter Jones, yelled to him "quick, over here". Mr Namrawi moved towards the area where he was confronted by several males; Smith, Karimi and Ali Baryalei who were involved in a physical altercation. They were punching and wrestling with one another. At this time another Allied security guard, Mr Pale-Eli, arrived and assisted Mr Namrawi to restrain the three. Michael Smith struggled violently with Mr Pale-Eli in an effort to re-engage in the conflict with Karimi and Baryalei. The fuller incident report (Exhibit "O") records that Karimi and Baryalei were "still highly agitated and calling out to Smith, 'you are a fucking gronk. What was that for? Look at you, you gronk'". Mr Namrawi maintained his restraint of both and repeatedly asked them to calm down. They did so and each apologised to Mr Namrawi and accompanied him to the western foyer of the Club.

16 It appears that Mr Karimi showed his Club membership number to Mr Namrawi and told him that he had been picked on by Smith who had punched him, which had led to them fighting. Mr Namrawi recorded that Mr Karimi had told him, "we are not troublemakers my friend. We come here all the time. We have never had trouble here." (Blue 24.C-D) A female patron, Ms Tarver, came out to the western foyer and told Mr Namrawi: "These guys weren't in the wrong. I saw the whole thing. No actually I was in the thing; I had my foot stomped on by the other guy that started it. … The other guy (Smith) come up to them for no apparent reason and punched this guy. … These guys (Karimi and Baryalei) didn't do anything wrong. The other guy looked like he was just looking for trouble." (Blue 24.F-I)

Mr Namrawi recorded that the Club managers, L Collins and M Johnson had arrived at the western foyer by the time Ms Tarver took up a seat to wait for the first aid officer. (Blue 24.L) 17 Mr Namrawi reported that he had explained the Club policy (to remove from the Club all participants in an incident such as this with out any assessment of how it began and who was or might be at fault) to Mr Karimi and Mr Baryalei and that they had complied with the request that they leave for the evening, saying that they understood it. Before they left Mr Namrawi had made radio contact to confirm that Mr Smith had already left the premises and he had been informed that Mr Smith and Ms Cameron had left in a vehicle. Mr Namrawi then told Mr Karimi and Mr Baryalei that it was time for them to leave. They started to make their way towards the car park accompanied by their companions. Mr Namrawi approached Ms Tarver, who was being attended to by the first aid officer. He turned to look at Mr Karimi and saw that he had separated from his companions and appeared to be walking between two parked cars. His companions appeared to be only a few metres away, walking in a slightly different direction. (Blue 24.S-T) Mr Namrawi continued to walk towards Ms Tarver. He turned to look a second time and he saw Mr Smith approach Mr Karimi and strike him with a closed-fist.

18 Mr Baryalei had no fears for his safety at the time he left the western foyer. He, his father, Ahmed and Ahmed's girlfriend, turned to their left to go towards Ahmed's car and Mr Karimi, whose car was parked in the opposite direction, turned to his right. The next thing Mr Baryalei heard was the sound of running. Michael Smith appeared to be running south from vicinity of the Holiday Inn. He ran towards Mr Karimi and threw a punch which connected with Mr Karimi's face and caused him to fall backwards to the ground. There had been no opportunity for Mr Baryalei to do anything to prevent the attack.

19 Mr Newson was one of the two Allied internal security supervisors on duty that night. He saw Mr Namrawi, the other internal supervisor, speaking to a group of young men in the western foyer. He heard Ms Tarver saying, "it wasn't these people". (Black 36.30-31) He recognised the group as regulars whom he considered to be a friendly lot who were not troublemakers. Mr Newsom remained on the balcony for several minutes. He saw Mr Karimi and his group walking away. Mr Namrawi joined him. Shortly after this Mr Newson turned around and saw Mr Karimi falling backwards. After watching film of the scene at the western foyer Mr Newsom estimated the distance between the top of the stairs where Mr Namrawi had been speaking with the group and the point where Mr Karimi was assaulted as being between six to eight metres.

20 Mr Baryalei's evidence did not make clear the distance between Mr Karimi and him at the point of the assault. It was put to him in cross-examination that (Black 28.19-23): Q. You were close to Tarique at that stage, weren't you? A. We were close, I tried, but by the time I tried he had already hit Tarique. Tarique was to the ground and he ran straight to the security door, that's where security got him.

21 Mr Dale, the first aid officer who attended Ms Tarver saw a group of people close to the exit of the western foyer. As he looked up a man seemed to come out of nowhere, "and just walked up to this group and punched one of these people in the head in the side of the face". (Black 62.28-30) Mr Dale recalled that the group comprised approximately four men, including the one that was hit. The group was 10 to 15 metres from where Mr Dale was located. The distance between the group and the stairs was less than this. At the point at which Mr Karimi was hit the group appeared to be together, "well they hadn't separated as such. They were within a couple of metres of each other at the most, from memory". (Black 64.36-38)

22 As noted, the evidence of the circumstances surrounding the removal of Mr Smith came from three of the security guards. Mr Pale-Eli attended the initial incident. He had seen several persons involved in a fight and he had taken hold of Smith and removed him from the premises and escorted him to the footpath outside the Club. At first Mr Smith had been agitated and he was saying things such as, "I should go back in there and flop my dick on his head". (Black 128.C) However, he calmed down. Ms Cameron had said that she wanted to go around to the back of the Club to confront the other males but Mr Smith told her that he just wanted to go home and she said, "okay, we'll go home". (Black 121.C) Mr Pale-Eli left Mr Smith on the footpath in the company of the external security guards. Before they parted Mr Smith shook his hand. Mr Pale-Eli heard the guards say to Mr Smith that if he had other problems at the Club he was to approach the security staff and let them deal with the matter and Mr Smith reply that he would do that. Mr Pale-Eli asked the guards to advise him by radio when Mr Smith and Ms Cameron had left the car park and in which direction they had gone. He did this so that the staff could then allow the people at the back of the Club to leave.

23 Mr Scholes was working at the front of the Club when he heard a radio message that a person was being evicted through the front of the Club. He assisted in the eviction. When Mr Smith came out he was ranting, raving, swearing. He took his shirt off and he wanted to fight somebody. He had said something along the lines that, "he had been boxing for eight years I'll knock them all out" (Black 139.R-S). Mr Scholes and the other security guards tried to calm him down, and they told him to go home. (Black 132.51-54) They moved him out to the footpath at the front of the Club and Mr Scholes stayed with him. By this time he had calmed down and put his shirt back on. When he and Ms Cameron left he was walking in a normal fashion. Mr Scholes saw them cross the road on the pedestrian crossing and walk into the car park directly across from the Club. He was told by another guard that that they had driven out of the car park and he relayed this advice to the control room.

24 Mr Peterson recalled that Mr Smith had been explaining that he was upset because someone had been looking at Ms Cameron, this was why the fight had broken out. Mr Smith had been very aggravated at this time. Mr Peterson had tried to calm him down, telling him that in future if he had a problem he should let the security guards know. Mr Smith did calm down and he agreed that he would see the security staff in the future. Ms Cameron said that she was taking him straight home. Mr Peterson shook Mr Smith's hand and watched the two of them walk across to the car park. 25 The incident report recorded that Mr Smith and Ms Cameron left the premises in a vehicle driven by Ms Cameron, a white Holden Commodore and noted its registration number. It is not known when the observation of the vehicle's number plate was made. The evidence did not establish whether Ms Cameron drove out of the front car park and turned to her left driving south on Sherbrooke Street and then right into North Parade and right from there into the southern entrance of the western car park. Alternatively, she may have turned right and driven north on Sherbrooke Street, left into Railway Street and left into the northern entrance of the car park. The distance to be travelled in either case was short. The evidence did not establish that the Club's security cameras were able to follow a vehicle for the length of either journey.

26 Mr Smith was escorted through the eastern foyer at 11.11pm. Mr Karimi and his companions were at the western foyer talking with Mr Namrawi at 11.12pm. Security guards remained with Mr Smith for 10 minutes following his eviction. At 11.22 Mr Smith and Ms Cameron parted from the guards and walked across Sherbrooke Street towards the car park. At 11:26 Mr Karimi and his group walked down the short flight of stairs to the car park. The assault occurred shortly thereafter. A security camera was trained on the area of the assault in the immediate aftermath of it. The view is partly obscured by a pillar. Mr Karimi appears to have been assaulted at a point adjacent to or, perhaps, between the first row of car spaces immediately in front of the western foyer. It is the area of the car park closest to the entrance where there is provision for cars displaying disabled parking permits to park. The western foyer and the area where the assault occurred was well lit.

27 His Honour found that Allied's security guards and the Club's managers who attended the incident inside the Club ought to have known that Mr Smith was potentially dangerous. He was critical of the Club's policy which required that all parties to a dispute be evicted without any assessment of the identity of the aggressor. This was a failure that his Honour considered went to the Club's exercise of care for its patrons. He found that employees of the Club and of Allied, both of whom were involved in the decision to require Mr Karimi to leave the Club, failed to heed information that identified Mr Smith as the aggressor. (Judgment, [28]) 28 His Honour had regard to the Club's Security Standard Operating Procedures (the Security SOP) (Exhibit "D"), which, relevantly, provided: The perimeter security and the security of the immediate public areas, car parks outside the Club is obviously crucial to the success of the overall security strategy. … When appointed for duty at either the external area or car parks of the Club, your principal duties are to ensure an incident free and safe environment for the Club's staff and patrons as well as for the free movement for cars and pedestrians. Guidelines are as follows: … 7. Staff are to be escorted to their vehicles in the staff car park after sundown. External operatives should listen for hard evictions coming out either the Main Foyer or Western Foyer. Steps should be taken to ensure the area is clear of patrons and that the 'snap-open' doors are wide open. Once a patron has been evicted or refused entry it is the responsibility of External Security to ensure they do not re-enter and remain off site if that has been instructed by the Security Supervisor or Management. (Emphasis as added) 29 His Honour also had regard to the evidence of Mr Pale-Eli (Black 123.F-K): Q. You've got a fight and you've broken up the fight and you've taken one person out one door and another officer's taken the other fighter out the other door. Are you given any guidance as to what you should do with the people once they're out the door? A. To manage them while they're outside. Q. Yes? A. If they need a taxi supply them with a taxi to get home. If they're got vehicles then make sure they're taken to their vehicles, and just practically supervise them while they're outside or while they're in the club.

30 His Honour's reasoning on the liability of the Club and Allied may be summarised as follows. It was forseeable that Mr Smith would seek to re-enter the Club premises through the western car park. Reasonable care for the protection of Mr Karimi required that the vehicle in which Mr Smith was known to be travelling be restrained from re-entering the premises. If restraint failed, it was evident that Mr Karimi should be provided with protection. The departure of both evictees should have been "significantly staggered by time delay" (Judgment, [35]). A security guard should have escorted Mr Karimi to his vehicle. This measure might have inhibited Smith from making a further attack and, in the event that it did not, the guard would have been able to defend Mr Karimi against the attack. (Judgment, [38]) Had Mr Karimi and his associates been asked to remain for a further period before being sent on their way the probability is that they would have remained until being given an "all clear" indication. 31 His Honour expressed his conclusions on breach as follows: [44] In summary, I find that the Club was in breach of its duty of care towards the plaintiff in failing to guard against the foreseeable risk of his being attacked by Smith in pursuing a policy of eviction of both disputing sides without any enquiry that might identify an aggressor with a consequent need for particular monitoring of that aggressor; in failing to maintain a system of ensuring that an evicted disputant did not re-enter the premises; in failing to adequately monitor and stagger the departures of disputants and in failing to escort disputants to the points of departure.

[45] I find that Allied was in breach of its duty in its capacity as the provider of security for patrons including the plaintiff in failing to comply with a reasonable procedure ensuring that Smith did not re-enter the premises; in failing to monitor the vehicle in which he was known to be travelling, in failing to restrain that vehicle from re-entry into the western car park; in failing to ensure that Smith was absent when the plaintiff was proceeding from the foyer to his vehicle; in failing to escort him to his vehicle and failing to take precaution against the possibility that Smith would return and renew attack on the plaintiff by advising him to remain within their area of protection in the foyer until a sufficient time had elapsed to make it reasonable to conclude that Smith had left the area.

32 His Honour dealt with the question of whether the Club had delegated its responsibility for the security of its patrons in this way (Judgment, [47]): [47] The Club has instituted a cross claim against Allied and Smith. No evidence about its contractual relationship with Allied was tendered by the Club. There is some incidental material relating to payment and procedures in documents tendered by the plaintiff. I note that it is not specifically pleaded but I find that the evidence does not in any event establish that the Club had delegated its duty of care to Allied. Both owed a duty of care to the plaintiff and both were in breach of their respective duties, some aspects of which were coordinate. The legal principles and the issues raised

33 The law recognises that the occupiers of licensed premises may be liable for the tortious or criminal conduct of patrons: Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91; Oxlade v Gosbridge [1998] NSWCA 167; (Court of Appeal, 18 December 1998, unreported); Wagstaff v Haslam [2007] NSWCA 28; (2007) 69 NSWLR 1; Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100; and Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155. The basis of the liability lies in the control exercised by the occupier over patrons and the occupier's knowledge, or ability to know about, the intoxicated condition of patrons: Wagstaff per Basten JA (Santow and Bryson JJA concurring) at 7 [24]. The element of control is subject to statutory obligations not to permit intoxication or violent or quarrelsome conduct on licensed premises and to remove those who engage in such conduct. At the time of these events these obligations were imposed on the Club under ss 44A(1) and 67A of the Registered Clubs Act 1976 (NSW). 34 In Wagstaff it was said that the duty - to take steps to protect patrons from the tortious or criminal acts of other patrons - does not arise merely from the fact of intoxication. An additional element is required, which was identified as knowledge, actual or constructive, of the aggressive character of the person when intoxicated: at 13 [50]; see, too, Collingwood at [21]. 35 It was not in issue at the trial that the Club was subject to a duty to exercise reasonable care arising out of the intoxicated or dangerous condition of its patrons, which duty extended to the protection of a patron while he was on or departing from the premises. (Judgment, [26]) Allied accepted that it owed a duty by reason of its provision of security services at the Club to exercise reasonable care to avoid one patron injuring another in circumstances where it knew or had constructive knowledge that the patron was a potential source of danger. 36 The Club submitted that the primary judge had, wrongly, found that its managers were present at the scene of the initial incident. Its position was that it did not have actual or constructive knowledge of Mr Smith's aggressive character. Allied's submission was that his Honour failed to address the evidence that at the time its staff saw Mr Smith off the premises they were satisfied that he had regained control and that he no longer posed a threat to Mr Karimi or other Club patrons. It was an error in Allied's submission to approach its liability for Mr Smith's subsequent criminal conduct on the basis of nothing more than that it was foreseeable that Mr Smith might re-enter the premises and assault Mr Karimi. The imposition of the duty was said to depend upon it having actual or constructive knowledge that Mr Smith's condition at the time he parted from the guards was such that he posed a danger to Mr Karimi.

37 The Club and Allied both complained that his Honour's findings on liability were influenced by his view that it was necessary to make an inquiry to determine which of a number of disputants was the aggressor. Such a case had not been particularised and was said not to be open on the evidence: Mr Karimi's own expert was of the view that persons responsible for security at licenced premises should not listen to what the parties to a conflict had to say about the matter.

38 The Club and Allied both submitted that the scope of their duty of reasonable care did not extend to the prevention of a criminal assault on Mr Karimi after Mr Smith had been evicted from the Club's premises or, in the event that it did, the conclusion that reasonable care required more than had been done to discharge the duty was wrong. Finally, each contended that his Honour's conclusion that any breach of duty was a cause of Mr Karimi's injury was wrong. 39 The Club challenged the rejection of its case that it had delegated the discharge of its duty to Allied. 40 The Club maintained a challenge to the admission of the opinion evidence of Mr R Jennings, a security consultant. The Club's knowledge

41 The Club submitted that there was no evidence to support the finding that its managers had attended at the scene of the initial incident. (Judgment, [27]) Mr Baryalei was unable to say whether the persons who attended the initial incident were security staff or members of the Club's management. The incident report recorded that the Club managers had been present at the western foyer at the time when Ms Tarver was waiting for the first aid officer. There does not appear to have been evidence that the Club managers attended the initial incident. To the extent that his Honour found that they were present at that time it would seem to be an error. In my view, nothing of moment turns on this. Mr Avery, a Club employee, went to investigate the initial incident and he saw the security guards breaking up a fight. In his incident report he said that he had spoken to Peter Jones, the floor supervisor, who had expressed the concern from the way Mr Smith was acting, and his language, that there was going to be trouble. It will be recalled that Mr Namrawi reported that Peter Jones had called to him to come quickly to the scene of the initial incident.

42 His Honour found that information was possessed by the Club and Allied that Mr Karimi was the innocent victim of Mr Smith's aggression (Judgment, [46]). It was a finding that was open against the Club and Allied by the time Mr Karimi and his group were speaking with the security staff at the western foyer. However, it is not clear that his Honour's view, that the failure to make any inquiry to determine which of the parties was the aggressor was a glaring omission (Judgment, [28], [36] and [37]), was relevant to his ultimate conclusion.

Mr Jennings' report 43 Mr Jennings, a licensed security consultant, prepared a report dated 16 May 2007. Objection was taken to its admission. Mr Williams submitted that Mr Jennings' experience did not demonstrate that any opinion expressed in the report was based on specialised knowledge within s 79 of the Evidence Act 1995 (NSW). Mr Jennings' experience includes 12 years as a detective working at New Scotland Yard in London and 27 years working in investigations and security in private enterprise in Australia. He had been retained on behalf of insurance companies and the owners/licensees of licensed premises in connection with the investigation of assaults and other offences committed on the premises. He has designed and implemented security systems for licensed venues, including RSL and Leagues clubs. 44 His Honour excluded substantial parts of Mr Jennings' report. The opinions which remained, and to which reference is made in the judgment, are noted below. The first was the concluding sentence of par 29: I would consider it essential that when there are two parking areas (as there were at Rooty Hill RSL) that this monitoring continue until it has been clearly established that an ejected person has actually left the area and not just moved from one car park to another, albeit necessarily going out onto the street for a few seconds to achieve this.

His Honour considered this opinion was no more than common sense. 45 Mr Jennings considered that Mr Karimi should have been kept inside the Club for about half an hour and then released under the close personal supervision of security officers all the way to his car (or other means of transport) and be seen to safely leave. (Exhibit "S" par 43) His Honour did not accept that there was support for the assessment of a half hour period of delay. His Honour appears to have relied on the evidence of Mr Pale-Eli that is set out at [28] above, in support of his finding which was that, "it is obvious that the departure of both evictees should be significantly staggered by time delay" (Judgment, [35]). Mr Jennings' opinion to which I have referred above was supportive of the case made by the Club and Allied. His Honour rejected it observing that it was unreasonable to refrain from making an inquiry at all, thereby eliminating the possibility of learning that one party had engaged in unprovoked aggression (at [37]). 46 His Honour's findings on liability did not depend upon an acceptance of the opinion of Mr Jennings and were in one respect contrary to his opinion. His Honour's ruling, that Mr Jennings was qualified to give opinion evidence in relation to the provision of security was open. In the circumstances, it is not necessary to deal further with the detailed criticisms of Mr Jennings' evidence. The relationship between the Club and Allied

47 The Club submitted that his Honour's conclusion that it had not delegated the discharge of its duty with respect to the safety of patrons to Allied, may have been influenced by his erroneous belief that delegation had not been pleaded. In its defence the Club pleaded that "it delegated and otherwise relied upon the expertise of a competent security company for the provision of security services." (Red 11.V-W) His Honour's reference to the absence of specific pleading, however, was in the context of the pleading of the cross-claim, which did not plead the delegation. (Judgment, [47])

48 There was no evidence of the contractual arrangements between the Club and Allied. The only evidence on which Mr Williams relied in this respect was a bundle of tax invoices submitted by Allied to the Club (Exhibit "E"). Mr Williams pointed out that in the week of this incident the Club had paid around $35,000.00 to Allied. Assuming this was an average weekly wages bill it showed that the Club's contract with Allied was worth approximately $1.8M. The "common sense" inference to be drawn, it was said, was that the Club had delegated responsibility for all aspects of the provision of security to Allied. The invoices evidenced that the Club, a very large registered club, paid a security firm in respect of the shifts worked by named personnel. It was not evidence from which any inference could be drawn about responsibility for matters such as the eviction of intoxicated or quarrelsome patrons or, more generally, the design and implementation of a security system. 49 There was evidence that the Club retained control over security with respect to dealings with and the protection of patrons. The Security SOP addressed the role of security operatives stating, inter alia: As a security operative at the Club the important procedures are: 1. Make a good impression as a representative of the Club. …

Security operatives should refer all incidents to Management where the decision will be made after personal assessment as to whether the incident is serious enough to require persons to leave the Club. Notwithstanding, if a Security Operative witnesses a serious offence being committed that would justify an immediate arrest to prevent the continuation of the offence or an injury to a person there is discretion to immediately intervene. 50 A document prepared by Allied contained managerial procedures for confrontation and complaints management (Exhibit "C"). This dealt with the reporting of incidents to the Club's duty manager. It was noted that the duty managers maintained a daily log which contained a summary of incidents occurring on each trading day. Under the heading "Coordination of Resources" it is stated that (Blue 167): it is imperative that the manager is able to coordinate security personnel to ensure that on-lookers are kept at a distance, and that participants are moved to more appropriate areas of Club premises. Where it is apparent that the incident is not controllable by security personnel, the Manager is responsible for contacting Police. … Managers will be primarily responsible for liaising with Police personnel when they arrive.

51 Mr Newson said that security staff would call the duty manager if a patron was intoxicated or aggressive and the duty manager made the decision about how the matter was to be dealt with. In the ordinary course of events it was the duty manager who had the final say about whether a patron was asked to leave the Club. However, in the event of a fight, the security guards would intervene to break the fight up and escort the parties outside without waiting for the attendance of a duty manager.

52 Mr Pale-Eli agreed that on occasions when it was necessary to intervene to break up a fight security officers would immediately take action to separate the fighters. Generally, the duty manager would rubber-stamp the decision taken by security staff to evict the person. (Black 123.C)

53 Mr Williams pointed to the evidence that at least 22 Allied guards were on duty at the Club at the time of the incident. (This was a reference to Mr Pale-Eli's estimate. The finding was that there were at least 16 guards on duty). The guards were responsible to supervisors who were employed by Allied. Allied staff operated the security cameras and controlled the radio communications between the security guards. In his submission the evidence pointed to acceptance that the role of the Club managers involved merely "rubber-stamping" the decisions of Allied staff in the eviction of aggressive and intoxicated patrons.

54 Mr Williams relied on Newcastle Entertainment Security Pty Ltd v Simpson [1999] NSWCA 351; (1999) Aust Torts Reports ¶81-528 for the proposition that the Club's duty of care was not non-delegable. In Newcastle Entertainment Security Mason P and Sheller JA declined to hold that the promoter and the operator of the Newcastle Entertainment Centre were subject to a non-delegable duty of care to an attendee of a rock concert held at the Centre. Beazley JA was of the contrary view. It is not necessary to decide whether the duty owed by the operator of licensed premises, informed by the statutory obligations to which I have referred, gives rise to a non-delegable duty. In my view, his Honour's conclusion that the Club did not establish the fact of delegation was correct.

55 The circumstance that Allied's staff were permitted to use their own discretion in urgent situations without recourse to the duty managers did not demonstrate that the Club had delegated responsibility for the security of its patrons to Allied. The Security SOP and the evidence of Mr Newsom and Mr Pale-Eli was against such a conclusion. It is difficult to see how his Honour could have determined the issue otherwise in the absence of any evidence of the Club's contractual arrangements with Allied.

56 The primary judge concluded that it was foreseeable that Mr Smith might be driven out of the front car park and enter the western car park and assault Mr Karimi. In these circumstances his Honour found that discharge of the duty of reasonable care owed by the Club and Allied to Mr Karimi required three measures: (i) monitoring the entrances to the western car park to restrain Mr Smith from re-entry; (ii) staggering the interval between Mr Karimi's departure and Mr Smith's departure by a longer period and (iii) providing a security guard to escort Mr Karimi to his car.

57 His Honour noted the evidence of the three Allied security guards, that they had not previously encountered an evictee travelling from one car park to another. He observed that this did not mean that the possibility was not foreseeable (at [31]). The Club and Allied submitted that the finding of foreseeability was erroneous. In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at 288 [100] Hayne J made the point in the context of the scope of the duty of an occupier of land to an entrant in respect of the criminal conduct of a third party, that in almost every case in which a plaintiff suffers damage the conclusion that harm was foreseeable is well-nigh inevitable. The guards' evidence was relevant to the consideration of the reasonableness of the measures that were adopted in handling the eviction of Mr Smith but I would not hold that it was an error to conclude that it was foreseeable that Mr Smith might re-enter the Club's premises.

58 Allied submitted that its duty to protect persons including Mr Karimi arising from its role in providing security services at the Club had been enlivened at the time of the initial incident and that it been discharged by the actions that its officers took in evicting Mr Smith. Thereafter before any further duty was enlivened it would be necessary to point to evidence that it had actual or constructive knowledge that Mr Smith's condition was such that he still posed a danger to Mr Karimi or other patrons. In Allied's submission the evidence did not establish that it possessed the requisite knowledge at the time when Mr Smith was on the front footpath because he had regained control.

59 Mr Karimi was being turned out of the Club by Allied staff following an unprovoked assault on him inside the Club. The reasonableness of the policy of requiring that all of the participants in an altercation be required to leave may not be in doubt. However, one consequence of it is that an innocent party, as Mr Karimi was, is potentially vulnerable to further assault by being required to leave along with the aggressor. Allied's duty to take reasonable care to protect Mr Karimi from the criminal conduct of Mr Smith, which arose because of Mr Smith's known intoxicated and aggressive behaviour inside the Club, did not come to an end following his eviction. Allied's guards did not act upon a view that their responsibility was at end after Mr Smith had been escorted beyond the perimeter of the Club. They spent time talking to Mr Smith and satisfying themselves that he had calmed down and that it was his intention to go home with his girlfriend. I consider that the assessment made by Allied's guards of Mr Smith's condition is critical to its liability, and to the liability of the Club, for the later criminal assault committed by him on Mr Karimi but in my view this is because it bears on the determination of the measures that were reasonably required to discharge the duty.

60 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 461 [126] Hayne J pointed out that the inquiry into breach, involving a judgment made after the event, must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. The danger of reasoning with hindsight in assessing breach was again emphasised in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at 338 [18] Gummow J.

61 On Mr Karimi's behalf it was submitted that Mr Smith was intoxicated; the primary judge accepted Mr Baryalei's opinion that Mr Smith was "pretty drunk". His Honour also found that Ms Cameron had been drinking that evening. Each had expressed the intention of seeking out the other group and Mr Smith had boasted of his boxing prowess. In the circumstances, it was submitted that the duty to to take reasonable care to protect Mr Karimi from the renewal of Mr Smith's unlawful violence required the adoption of the three measures at [55] above.

62 The initial incident occurred at about 11.10pm. The security staff spoke with Mr Smith for 10 minutes after he was escorted out of the Club. Over this interval he appeared to calm down. The three security staff who were involved in his eviction each gave evidence in this respect. Mr Pale-Eli said that if a person who had been ejected from the Club was waiting around the security staff would not let the other person leave the premises until the first person had "left totally" (Black 124.N-O). In Mr Pale-Eli's judgment Mr Smith had calmed down and was going home with his girlfriend. He had no concern that Mr Smith would return and cause trouble to anyone that night. (Black 124.U -125.H) 63 Mr Scholes thought that Mr Smith had quietened down and that "it was all over". (Black 136.P) He had no suspicion that Mr Smith was going to seek out Mr Karimi. Had he thought that Mr Smith was likely to present a further problem to any person at the Club he would have notified the control room so that the staff at the western foyer and the internal staff were aware of the risk. (Black 136.Q-X) 64 Mr Peterson was not able to remember all the things that Mr Smith had been saying. He agreed that the statement that he made to the police on 18 June 2003 was correct. In the statement, he gave this account: We started talking to the guy. He seemed to be angry. He wasn't directing it at us, but was saying that he had a fight with three guys inside the club. During the time we were speaking to him, he said, "Every time my girlfriend goes to the Club, one of them follows her around." "He was still following her around tonight even though I was there." "I have been boxing for 8 years, and I'd knock them all out" or something along those lines. When we asked him to go home he said, "I'll wait out the front for them to come out. Why haven't they been kicked out?" As we were talking to him he seemed aggressive and kept putting his hands into fists. I noticed that he had big fists. During the conversation I walked away to near the front doors. A couple of minutes later I went back to the footpath where the guy was talking to another guard. As I got there he said, "yeah, No worries, next time I have trouble I will come and see youse." The other guard said, "Yeah, make sure you come and see us, we'll deal with it. That's what we're here for." I said to the girlfriend, "Just make sure you take him home." She said, "Yeah, I'll take him straight home." The guy shook our hands and walked off with the girl to the car park." 65 Mr Peterson thought that Mr Smith had calmed down and was not going to present any more trouble that night. (Black 144.W) 66 Mr Jennings considered that any statements made by an evictee should be ignored by security staff. In his experience it was commonplace for people to calm down after an incident but this did not mean that they may not become violent again after a short interval. (Black 103.H-X) Nonetheless, the determination of the reasonableness of the Club's and Allied's response to the risk that Mr Smith might return and renew his criminal aggression towards Mr Karimi must include that an assessment was made of this risk by the security staff and that it was judged that Mr Smith had calmed down. In the event, the assessment was wrong. Of significance for present purposes, is that there was no challenge made to the security guards that the assessment had not been conscientiously made or that it was unreasonable.

67 His Honour considered that the failure to monitor the western car park to ensure that the vehicle in which Mr Smith was travelling did not drive into it was a failure to implement the instruction in the Security SOP, that the external security staff ensure that a patron who has been evicted does not re-enter and remains off site. (highlighted passage at [27] above and Judgment, [29]) This overlooks what it is the external security staff did, which was to remain with Mr Smith for 10 minutes talking to him in a placatory way and satisfying themselves that he had calmed down and that he was intending to go home with his girlfriend. Having satisfied themselves in these respects, and having seen Mr Smith being driven out of the Club's car park by his girlfriend, in my opinion it was not a failure to comply with the Security SOP to take no further step to ensure that Mr Smith did not re-enter the Club.

68 The evidence did not establish that the registration number of the vehicle in which Mr Smith was travelling was known to the Allied staff before the assault on Mr Karimi in the car park. The handwritten incident report form, Exhibit "M", records a description of the vehicle as being a white Commodore and gives the registration number. The report contains a narrative of the events commencing with the initial incident. It appears to have been created at some time after the arrival of the police and the ambulance following the assault on Mr Karimi. Exhibit "G", the log maintained in the control room, does not record the vehicle description or registration number. Mr Peterson, the security guard who watched the vehicle leaving the front car park, did not give an account of observing the registration number. I accept the appellants' submission that his Honour's finding, that the registration number had been noted and that there was no inhibition on the information being reported, appears to have been made in error. (Judgment, [32]) How the monitoring was to be carried out was not further explored.

69 His Honour did not accept Mr Jennings' evidence that 30 minutes should have been allowed before Mr Karimi was asked to leave the Club. However he found that the departure of both should have been "significantly staggered by time delay". (Judgment, [35]) An intoxicated disputant leaving licensed premises on foot may take some time to leave the area, which may suggest the need to stagger the departure of the other party by a greater interval than is appropriate in the case of an intoxicated disputant who has been driven from the scene. The eviction of each of the parties to the initial incident was staggered and steps were taken to prevent the fight re-commencing outside the Club. The participants were escorted out of the Club through different entrances. The security guards were in contact with one another in order to ensure that Mr Karimi and his companions did not leave the western foyer and the immediate protection of security staff until Mr Smith had driven off from the Club's car park in the company of his girlfriend. Given that Mr Smith was known to have left in a vehicle it is not apparent that some greater interval of time than the four minutes that was allowed was required.

70 His Honour took into account the Club's Security SOP, which provided that staff were to be escorted to their cars after dark. He considered that a person who had been the subject of an attack ought be afforded the same level of security (Judgment, [39]). Allied submitted that it was an error to reason from the fact that the Club, which owed a duty of care to its employees, had a policy of escorting staff to their cars at night that the same level of security be provided to Mr Karimi. His Honour's reasoning was Mr Karimi was known to have been the innocent victim of Mr Smith's aggression. He was rendered vulnerable by being required to leave the Club and in these circumstances it was reasonable that he, too, be escorted to his car. The difficulty in my opinion with his Honour's conclusion in this respect is that it does not take into account that Mr Karimi was one of a group of four men. The group were leaving the western foyer and walking as a group into the well-lit car park. The location of any part of the car park reserved for staff parking area was not identified in the evidence. I will assume that staff parked in any part of the western car park that was used by patrons, nonetheless it is reasonable to consider that the policy reflected in the Security SOP is one that assumes staff finishing work after dark are travelling by themselves.

71 His Honour found that Mr Karimi was rendered vulnerable by being alone at the point when Mr Smith attacked him (Judgment, [38]). The evidence of Mr Baryalei, Mr Dale and Mr Newsom differed in the degree to which each described Mr Karimi as having moved from his companions at the point of the assault. The preponderance of the evidence, which I take to be consistent with his Honour's finding, is that Mr Karimi had separated from his companions by the time Mr Smith struck him and he was in this sense alone. However, there was no evidence that the security guards or the Club managers knew that Mr Karimi proposed separating from his companions. At the point at which Mr Karimi left the company of Mr Namrawi and made his way down the short flight of stairs to the car park he was in company with three other men. 72 Mr Baryalei had no fears for his safety when he left the western balcony. It was submitted on Mr Karimi's behalf that Mr Baryalei's feelings were irrelevant since he had had not been the target of Mr Smith's aggression. Mr Baryalei was present at the initial incident and had become embroiled in it. His lack of concern about a renewal of the attack is relevant to the assessment of whether Mr Smith's aggressive conduct was such as reasonably called for any greater response than was made.

73 In my opinion the conclusion that the Club and Allied were negligent in the failure to adopt the measures that his Honour identified cannot be sustained. It is only by reasoning backwards from what is known to have happened that the conclusion is reached. Mr Smith appeared to have calmed down and to be planning to go home with his girlfriend. Mr Karimi was not asked to leave until the security staff confirmed that Mr Smith had been driven out of the Club's premises by his girlfriend. Mr Karimi was one of a group of men when he left the western foyer of the Club. The initial incident, although apparently involving an unprovoked assault on Mr Karimi, was not of a character to call for greater measures than those which the Club and Allied took in order to reasonably protect Mr Karimi from further injury at the hands of Mr Smith. 74 The Club and Allied also challenged his Honour's finding on causation. As noted, his Honour's conclusion with respect to monitoring the vehicle in which Mr Smith was travelling appears to reflect a finding that the number plate of the Holden Commodore driven by Ms Cameron was known. The capacity to monitor and effectively restrain the vehicle from entering the western car park may be doubted. His Honour appears to have accepted this. (Judgment, [41]) The critical finding on causation was that the presence of a security guard as an escort to Mr Karimi is likely to have inhibited the attack. (Judgement, [41]) Mr Smith's attack was sudden and unexpected. Mr Karimi was within a few metres of his three male companions at the time of the attack. At least two security guards were standing on the well lit western foyer, not more than 10 metres away. Mr Smith's attack was carried out without regard to the inevitability that he would be apprehended in the aftermath of it. In the circumstances I would not conclude that it was probable that the assault would not have occurred had the measures that his Honour proposed been employed.

75 For these reasons I propose the following orders: ORDERS

In proceedings CA 40626 of 2007 (the appeal by Rooty Hill RSL Club): (1) Grant leave to appeal. (2) Direct that the draft Notice of Appeal be treated as if filed pursuant to leave. (3) Allow the appeal and set aside the judgment and orders made by the primary judge on 24 August 2007. (4) In lieu thereof: (a) Judgment for the first defendant, Rooty Hill RSL Club, against the plaintiff Tarique Karimi; (b) Order the plaintiff to pay the costs of the first defendant of the trial; (c) Dismiss the cross-claim brought by the first defendant against the second defendant with no order as to costs. (5) Order the first respondent, Tarique Karimi, to pay the appellant's costs of the appeal and make no order as to the costs of the second respondent, Allied Security Group. (6) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW).

In relation to proceedings CA 40623 of 2007 (the appeal by Allied Security Group Pty Ltd): (1) Grant leave to appeal. (2) Direct that the draft Notice of Appeal be treated as if filed pursuant to leave. (3) Allow the appeal and set aside the judgment and orders of the primary judge made on 24 August 2007; (4) In lieu thereof: (a) Judgment for the second defendant against the plaintiff; (b) The plaintiff to pay the second defendant's costs of the trial; (3) The first respondent to pay the appellant's costs of the appeal, and no order as to the costs of the second respondent of the appeal. (4) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW). **********

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