WAGSTAFF v HASLAM & ANOR

DECISION: (1) Uphold the cross-appeal and set aside the orders of the trial judge made on 21 April 2006; (2) In lieu thereof, enter judgment for the defendants with costs; (3) Dismiss the appeal against the assessment of damages; (4) Order the Appellant to pay the Respondent's costs of the appeal and the cross-appeal; (5) Grant the Appellant a certificate under the Suitors' Fund Act 1951 (NSW) with respect to the costs of the cross-appeal.

CATCHWORDS: NEGLIGENCE - duty of care - nature and content of duty owed by occupier of a hotel to its patrons - whether duty extends to protection against deliberate wrong doings of third parties - NEGLIGENCE - breach and causation - whether there was a breach of duty by the conduct of the bar manager - whether the breach caused the injury - PRACTICE AND PROCEDURE - inconsistent findings of liability between two plaintiffs in separate causes of action arising from the same incident.

Civil Liability Act 2002 (NSW) ss 3B 30 Liquor Act 1982 (NSW) LEGISLATION CITED: ss 2A 103 125 Liquor Ordinance 1975 (ACT) s79

Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Oxlade v Gosbridge Pty Ltd (unrep NSWCA CASES CITED: 18 December 1988) Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Public Transport Corporation v Sartori [1997] 1 VR 168 R v O'Connor (1980) 146 CLR 64 Rogers v The Queen (1994) 181 CLR 251 Scala v Mammolitti (1965) 114 CLR 153 Smith v Leurs (1945) 70 CLR 256 TAB Limited v Atlis [2004] NSWCA 322 G. Wagstaff v Haslam [2006] NSWSC 295

Teresa Anne Wagstaff - Appellant/Cross-Respondent PARTIES: Anthony James Haslam - First Respondent/First Cross-Appellant D & D Haslam Pty Ltd - Second Respondent/Second Cross-Appellant

COUNSEL: R.W. Seton SC/J. Reimer - Appellant/Cross-Respondent G. Parker - First and Second Respondents/First and Second Cross-Appellants

SOLICITORS: Walsh & Associates, Coffs Harbour - Appellant/Cross-Respondent Ebsworth & Ebsworth, Sydney - First and Second Respondents/First and Second Cross-Appellants

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 21 April 2006 12 May 2006

LOWER COURT MEDIUM NEUTRAL CITATION: T. Wagstaff v Haslam & Anor [2006] NSWSC 294

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281/06 SC 20218/04

SANTOW JA BRYSON JA BASTEN JA

26 February 2007 Teresa Anne WAGSTAFF v Anthony James HASLAM & ANOR On 3 May 2000 there was an altercation between Mr Wagstaff and another patron at the Greenhouse Tavern, Coffs Harbour. Mrs Wagstaff, the Appellant, intervened to assist her husband, and suffered injuries as a result. Mrs Wagstaff claimed damages as a result of the negligence of Mr Haslam, the licensee of the Greenhouse Tavern and D & D Haslam Pty Ltd, the occupier of the premise.

The District Court gave judgment in favour of Mrs Wagstaff. Mrs Wagstaff appealed against the assessment of damages. The defendants filed a cross-appeal challenging the finding of liability. Mr Wagstaff had also succeeded in proceedings against the defendants but his damages were reduced by 20% for contributory negligence. The defendants did not seek to challenge the judgment in favour of Mr Wagstaff.

The issues for determination by the Court of Appeal were:

(i) what is the nature and content of the duty of care owed by the defendants to patrons of the hotel;

(ii) was the conduct of the defendants a breach of that duty;

(iii) was the injury to Mrs Wagstaff caused by the breach of duty of care;

(iv) whether there could be a different finding of liability in relation to Mrs Wagstaff if the defendants did not challenge the judgment in favour of Mr Wagstaff.

1. The fact that an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt, the question being whether the duty extends to protection against the deliberate wrong doing of a third party. The basis of the duty must be found in the level of control exercised by the occupier over those on the premises and the occupier's knowledge, or ability to know about, the condition of persons on the premises where liquor is being sold: at [24]. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; Oxlade v Gosbridge Pty Ltd (unrep, NSWCA 18 December 1998); Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 at [113]-[116] (Heydon JA, Mason P & Hodgson JA agreeing); TAB Limited v Atlis [2004] NSWCA 322; applied.

1. It is foreseeable that some people will become aggressive when drunk, but it does not follow that a publican must, acting reasonably, treat every intoxicated patron as a potential source of unprovoked violence: at [42]. Cole v South Tweed Heads Rugby League Club Ltd (2004) 217 CLR 469; R v O'Connor (1980) 146 CLR 64, considered.

2. The mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons. An additional element of knowledge, either actual or constructive, of the aggressive character of the person, when intoxicated, based either on known characteristics or conduct on the occasion in question, is required. In this case, as there was no such knowledge, the conduct of the bar manager, prior to the commencement of the altercation, did not constitute a breach of duty to Mrs Wagstaff: at [50], [59] & [61]. Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; TAB Limited v Atlis [2004] NSWCA 322; applied.

1. The correct approach to causation is to ask whether, if the bar manager had taken reasonable steps to remove the assailants, the assault probably would not have occurred. The trial judge erred in not addressing whether if there had been resistance, the bar manager would have needed assistance, whether Mr Wagstaff might have made his provocative gesture in any event, whether if Mr Wagstaff made the provocative gesture and remark, the bar manager, whose attention would presumably have been directed elsewhere, would have had any opportunity at all to prevent the blow: at [63].

2. Even if his Honour were correct in determining that there had been a breach of duty, the evidence did not establish on the balance of probabilities that such steps would have prevented the assault occurring: at [64] - [65].

1. The result in the present case, although it is inconsistent with the finding of liability in relation to Mr Wagstaff, does not mean that the cross-appeal on liability in relation to Mrs Wagstaff constitutes an abuse of process, or would bring the administration of justice into disrepute. Each of the plaintiff and her husband had separate causes of action available against the defendants. If their claims had been heard separately, the evidence might have differed and inconsistent judgments might have resulted. Because the causes of action were independent and not derivative, except to the extent that contributory negligence was governed by s 30(3) of the Civil Liability Act 2002 (NSW), different results in separate proceedings would not relevantly bring the administration of justice into disrepute: at [73]-[74]. Rogers v The Queen (1994) 181 CLR 251; Port of Melbourne Authority v Ashun Pty Ltd (1981) 147 CLR 589; Hunter v Chief Constable of the West Midlands Police [1982] AC 529, applied.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40281/06 SC 20218/04

SANTOW JA BRYSON JA BASTEN JA

26 February 2007 Teresa Anne WAGSTAFF v Anthony James HASLAM & ANOR Judgment 1 SANTOW JA: I agree with Basten JA, essentially for the reasons he gives, for the conclusion he reaches and the orders he proposes. 2 Insofar as Mrs Wagstaff's claim depended upon proof that the first punch occurred through the negligence of Mr Hislop, I agree with the conclusion of Basten JA that that was not established. Mr Hislop was the Bar Manager on the evening when the altercation occurred leading to the injury of Mr Wagstaff. This was at the hands of the two men whom Mrs Wagstaff referred to in her evidence as the red-haired man and the blonde man. Minds may differ as to when someone who is "moderately" intoxicated and exhibits a degree of aggression creates a situation where the reasonable steps called for by the duty of care of the person in charge of a hotel owed to its customers calls for intervention to remove the intoxicated person concerned. Though the present case was close to the line, Basten JA's careful review of the evidence convinces me that that point was not reached until intervention was too late to be effective. 3 BRYSON JA: I agree with Basten JA. 4 BASTEN JA: On the evening of Wednesday, 3 May 2000, at the Greenhouse Tavern, Coffs Harbour in northern New South Wales, there was an altercation between a Mr Gerard Gregory Wagstaff and another patron at the hotel. Mr Wagstaff's wife, Teresa Anne Wagstaff intervened to assist her husband, and suffered injuries as a result. In the present proceedings, Mrs Wagstaff claimed damages as a result of the negligence of Mr Anthony James Haslam, the licensee of the Greenhouse Tavern and D & D Haslam Pty Ltd, the occupier of the premises. 5 The matter was heard by Studdert J in the Common Law Division. On 21 April 2006 his Honour gave judgment in favour of Mrs Wagstaff in an amount of $227,971: Wagstaff v Haslam [2006] NSWSC 294. Mrs Wagstaff appealed against the assessment of damages, the primary point of concern being his Honour's failure to award any part of the amount of $602,000 claimed on account of her needs for domestic and personal care. His Honour also allowed significantly less than she had claimed for future economic loss and for non-economic loss. 6 The defendants filed a cross-appeal challenging his Honour's findings on liability. One element of that challenge concerned the assessment of contributory negligence, pursuant to which the trial judge had reduced the plaintiff's damages. The assessment of 20% contributory negligence related to the conduct of Mr Wagstaff, who had also brought proceedings against the defendants in which he had been successful, but had recovered a modest award of damages reduced by 20% on account of his contributory negligence. The defendants did not seek to challenge the judgment in favour of Mr Wagstaff in the sum of $49,208 and Mrs Wagstaff argued that they were thereby estopped from challenging the assessment of contributory negligence in her case. Issues 7 Despite the order in which the appeal and cross-appeal were commenced, it is convenient to deal with the issues raised in the following order:

(1) did the defendants owe Mrs Wagstaff a duty of care;

(2) was the conduct of the defendants a breach of that duty;

(3) was the injury to Mrs Wagstaff caused by the breach or breaches of the duty of care;

(4) should the damages otherwise payable to Mrs Wagstaff have been reduced by a figure proportionately greater than 20%? 8 In relation to the assessment of damages the questions to be addressed if Mrs Wagstaff held her judgment with respect to liability were:

(1) should Mrs Wagstaff have obtained damages for past and future domestic and personal care services;

(2) was the amount awarded for non-economic loss insufficient;

(3) was the amount awarded for economic loss insufficient? Factual background 9 The first defendant and licensee, Mr A. J. Haslam, had been on the premises during the day of the incident, but had left prior to the altercation, which occurred at about 9pm. The evidence does not disclose when he left: see [2006] NSWSC 294 at [65]. 10 There had also been present on that day a security officer called Neil, who, according to Mr Wagstaff, was "regularly" on duty at the Greenhouse Tavern. Mr Wagstaff described him as "head of security": Tcpt, p 164. He said that he had not seen him on the night in question, but that Mr Haslam had telephoned him the following day to apologise for the incident on the previous evening and had said: "Neil had said he was sick and we assessed the situation and thought everything would be OK, so I went home and Neil went home about half an hour later because we didn't think there would be any trouble." 11 Mr Wagstaff also gave evidence that the hotel advertised "lingerie waitress in main bar" from 4pm to 7pm each Wednesday. He indicated that this involved topless barmaids in the main bar, and that "the Wednesday girls" had, in his observation, increased patronage "dramatically" on those days when they were present, while it had dropped on other days: Tcpt, p 167. His Honour was satisfied that there were "still some twenty to thirty patrons in the hotel when the altercation began": at [66]. There were three members of staff on duty, being two barmaids and the bar manager, Mr Jay Hislop. Mr Hislop made a written statement to police on 12 June 2000, which was admitted into evidence. He did not give oral evidence and the trial judge was satisfied that he was not available to do so: at [19]. Mr Hislop described the altercation, referring to the two men who appeared to have been the aggressors as "the bloke with the ponytail" and "the bloke with the short hair". Mrs Wagstaff referred to the men in her evidence as the red haired man and the blonde man. The red haired man and the man with the ponytail were the same person and the blonde man and the shorthaired man were the same person. There was also a third man with them, in an area of the pub in which there were poker machines, the third man being identified by Mrs Wagstaff as having a dark green shirt and black hair: Tcpt, 13 February 2006, p 39. As she was the primary source of evidence, it is convenient to use her descriptions. Although the police were called and apparently spoke with the men as they were being removed from the hotel, their names appear not to be known. No proceedings were commenced against them. 12 Mr Hislop noted that the two men had been in the Tavern "since early afternoon consuming beer then later on they had scotches". Mr Hislop continued, at par 5: "The bloke with the short [blonde] hair was buying drinks for the other bloke and himself. They were in the pool room when I went in to clean up. From my observations, I saw that they had [had] enough to drink. Short time later, the bloke with the short [blonde] hair came to the bar to buy another round. I informed [him] that this was last drinks because [of their] actions in the pool room. I [had] formed the opinion that they were moderately affected by alcohol." 13 Mr Hislop stated that they had "grabbed" their drinks and gone into the poker machine area where they met up with a third person who was playing the poker machines. He remained behind the bar, but left that area and went to the poker machine area when he heard a glass smash: par 7. He saw the Wagstaffs, whom he knew, and the two blokes. He stated: "I started to pick up the glass from the ground. The bloke with the [red] ponytail had picked up the main piece of the broken glass. I said, 'I'll take that for you.' He said, 'Don't you think I'm fucking capable to do it myself.' The male wouldn't give the glass to me. [Mr Wagstaff] and the pony-tail bloke were having words. I convinced the bloke to give me the glass." 14 Mr Hislop clearly did not witness the beginning of the exchange between Mr Wagstaff and the red haired man, nor, as his Honour held, did two other witnesses who became involved in separating the parties to the altercation, namely a Robert Wear and his friend, John Gett, each of whom gave evidence: Judgment at [21]-[24]. However, Mrs Wagstaff and her husband both gave evidence of the incident, which his Honour accepted. It was only Mr Wagstaff who appears to have known how the exchange of pleasantries commenced. He described walking past the group of three men to go to the bar for a second drink for himself and Mrs Wagstaff when he overheard a remark which he described as "a bit outrageous". On his return from the bar he said that one of the men walked away from the group and as they crossed paths he had said (Tcpt, p 151): "'That sounded a bit suss, I wonder what's going on there' and he was laughing and, yeah, well he appeared drunk and that and he just shook his head and that and said 'yeah, I don't think I want to get involved in that' and he turned back to the group and I walked towards Teresa." 15 When he returned with the drinks, the men were at a poker machine close to his wife and, after passing Mrs Wagstaff her drink, he turned to the group and said "Come on boys, tell us the joke. What's this about someone fucking someone's best mate". His evidence continued (Tcpt, p 153): "The immediate reaction, the red haired guy cursed and swore, said something like 'fuck off' and then threw his glass down, and then reached down and picked it up … turned to me and said 'Fuck off, get out of here. Fuck off, get out of the pub, out, get out, get out" and was holding the glass up … with the jagged edges pointing up and it was out in front of himself … towards us. Towards Teresa and I." 16 Mr Wagstaff then asserted that he immediately tried to calm the man down by saying "I'm sorry, I'm sorry it was a joke, I made a mistake, I'm sorry". As he did so, he held up his open palmed hands towards the man and adopted a "passive stance". It was as the red haired man started swearing at her husband that Mrs Wagstaff got up and stood beside him. She said to her husband, "He is just drunk, Gerry, let's go". At that point, the man apparently turned to Mrs Wagstaff, called her "A fucking bitch" and said "I'm not drunk". She said that it was at that point that the glass was smashed (Tcpt, p 38): "I saw him smash it on the side of the poker machine but it dropped on the floor but he picked up the base of it and he held it to my face and to Gerry's face, calling us 'f-wits'."

She stated that Jay, the barman came down and went to get the broken glass, largely confirming Mr Hislop's statement, but adding that "the tirade of abuse was still going on and Jay just stood there and did nothing". 17 Mrs Wagstaff's evidence continued (Tcpt, pp 38-39): "Gerry ended up getting sick of it, of being abused, and he said words to the effect of 'Piss off you, you are drunk' and he went to turn to leave, and that's when the man, the other man with the light green shirt and blonde hair, came in with a huge punch across the head and sent my husband flying."

She stated that they "both went flying on the floor" and she ran to get help: Tcpt, p 40. She went first to the main bar and then around the tables, asking for assistance. 18 Mr Hislop's evidence of that stage of the incident was that, after taking the broken glass, he had sought to tell Mr Wagstaff and the red haired man to calm down. He confirmed that Mrs Wagstaff was seeking to get her husband to leave. He continued (par 9): "Gerry has turned away and started to walk to the far end of the poker machine area. The pony-tail bloke was still mouthing off, taunting Gerry. Gerry turned round and put his finger to his nose and said in jest, 'Fuck off idiot', turned and walked away. The short hair guy who was standing on the left side [of] Gerry, has run at Gerry and swung a punch, like a hay bailer missing Gerry's head. The [punch] missed but he tackled Gerry to the ground. The blonde hair bloke started to punch Gerry about the head. Gerry was trying to get up, pushing the bloke but he couldn't get up. The third guy who was playing the poker machines, had grab Gerry by both arms, pulling them back so Gerry couldn't defend himself. The shorthaired guy was still punching Gerry. I had grabbed the shorthair bloke in the same way, by grabbing his arms and pulling them back so he couldn't hit Gerry. They started to calm down. Gerry was still trying to break free, he saying 'Let me go, I don't want to fight.' Gerry had calmed right down. The bloke I was holding said, 'It's OK, OK.' so I let him go. Gerry said to the bloke, 'why did you do that, I wasn't talking to you?' The bloke with the pony-tail was winding his mate back up, taunting Gerry and calling Therese, 'That fucking bitch started it.' By this time, a couple of the locals had come around and backed me up. The short-haired guy grabbed Gerry's ponytail, when I yelled out to a staff member 'Call the police'. The short haired block has pulled Gerry down on to the ground and started to punch him about the face with closed fists." 19 The fight continued, two men jumping on top of Mr Wagstaff. This part of the incident was described by Mrs Wagstaff in the following terms (Tcpt, p 44): "The blonde headed guy grabbed Gerry because Gerry had a long plait. He grabbed his plait and swung him round back down onto the floor. … He had two other guys jump on top. I don't recall who they were. I was just focused on Gerry and the blonde but they had Gerry's neck just twisted at this disgusting angle. I thought he was going to die. … Gerry's body was facing away with me on his side. … With his arms behind his back. … and then the guy had has hand around his ponytail and had his head twisted back at this disgusting angle and just kept punching and punching. Q. Who had a hold of his ponytail? A. The blonde headed guy. Q. And who was doing the punching and punching? A. The blonde headed guy. Q. To what part of his body? A. His head.

She continued (Tcpt, p 45): "I was in a hyped up - I was getting adrenalin in me. I was getting scared. I was seeing blood. I thought he was going to die and that's when I stepped in."

She said that the blood was coming from her husband's scalp, apparently where his hair had been pulled out. She continued (Tcpt, p 46): "I just got this huge adrenalin in me and I just raced up and kicked about six times really really hard this man with the blonde hair in the buttocks. I think I ended up getting him once in the family jewels, because that's when he jumped up really quick. … He got up like a raging bull. He was angry and he yelled out, 'Who, laid the boot? Who laid the boot?'. … Yes and then he came running and punched the guy that was standing next to me in the face so hard I thought if I got punched liked that, I thought it would break my neck and then the men that were standing around watching said 'That bitch did it. That bitch did it' and he came running after me."

She stated that she ran to the ladies toilet, but did not know how far he pursued her. She locked herself in the toilet, pushing her back against the door, terrified: Tcpt, p 49. She stayed there until one of the barmaids came into the toilet area to tell her that it was safe to come out. 20 Although at one point his Honour said that "none of the three men assaulted the plaintiff" (at [72]), it would seem he accepted her assertion that the red haired man with the broken glass had threatened her and that what his Honour meant was that none caused physical injury to her. Thus, his Honour continued: "Any physical harm the plaintiff suffered was in consequence of her going to the defence of her husband. … I observe that any mental harm suffered by the plaintiff was suffered after the plaintiff witnessed her husband being put in peril by his assailants." 21 In part the injury complained of included pain which she experienced when leaving the hotel on the night of 3 May 2000, being a pain "shooting up my spine, from my tailbone to my neck": Tcpt, p 54. She rated it at 8 on a scale of 1 to 10. She said stiffness and soreness persisted up her spine on the following: Tcpt, p 55. However, it is unnecessary to detail the plaintiff's injuries at this stage, as questions of liability should be addressed first. Duty and content of duty of care 22 Although the notice of cross-appeal alleged error on the part of the trial judge in concluding that the defendants owed the plaintiff a duty of care, the focus of the defendants' submissions on the cross-appeal was the content of that duty. Nevertheless, the two are closely inter-related and should be addressed together. 23 The nature and content of a duty of care owed by the defendants to patrons of the hotel, depended in part on their powers of control over persons on the hotel premises and in part on the statutory obligations under which the hotel operated. 24 The basis of liability in the present case raises a similar question to that addressed by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, namely the principle upon which an occupier of premises may be liable in negligence to a person who is injured, whilst on the premises, by the deliberate wrong doing of a third party: see at [2] (Gleeson CJ). As his Honour further noted, the fact that an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt, the question being whether the duty extends to protection against the type of harm which befell the plaintiff: at [17]. The basis of the duty must be found in the level of control exercised by the occupier over those on the premises and the occupier's knowledge, or ability to know about, the condition of persons on the premises where liquor is being sold. 25 In Modbury Triangle, Gaudron J and Hayne J agreed with the Chief Justice, Hayne J adding some comments of his own with which Gaudron J agreed. Hayne J noted the importance of the power to assert control over a third party, as a basis of the duty to exercise control: at [111]. His Honour continued at [113]: "It is not enough to say that the appellant had power to act in a way which may have made the occurrence less likely (by leaving the lights on). That is doing no more than restating, in other words, a conclusion about foresight or, perhaps, causation." 26 As the trial judge noted in the present case, Hayne J recognised the possibility that an occupier might owe a duty of care where the complaint concerned "the occupier failing to control access to or continued presence on the premises": at [117]. In that context, his Honour referred in a footnote to Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 and Public Transport Corporation v Sartori [1997] 1 VR 168. 27 The facts in Modbury Triangle involved an employee of a video shop in the shopping centre, who was badly injured when attacked while walking to his car in the car park after work. The basis of liability was said to depend on the shopping centre having turned the floodlights off at about the time the video shop had closed. The Court held that the shopping centre did not owe a duty as occupier of the land to take care to prevent physical injury to the employee resulting from the criminal behaviour of a third party. Sartori involved similar circumstances, though the car park provided by the employer of the plaintiff, was equipped with what was called "security lighting" and had a locked gate which was meant to be kept locked at all times. It is clear that it was the relationship between the plaintiff and the defendant, being that of employer and employee, which caused Hayne J to refer to it, by way of distinction from the facts in Modbury Triangle, which involved no special relationship between the parties beyond that of occupier and employee of a tenant. 28 Chordas is closer to the present case. It involved an attack on the plaintiff in the bar of a hotel in Canberra by another patron of the hotel who was said to be intoxicated. Chordas was relied upon in the present case for the proposition that the manager of an hotel was held to have a duty to take reasonable care for patrons on the premises. Whilst that may be accepted, it is helpful to give further attention to the circumstances in which the Full Court of the Federal Court held that such a duty might arise. Their Honours stated (at p 99): "Particularly in the case of an hotel, which provides a facility pursuant to a licence authorising the provision of liquor and pursuant to Acts and regulations which require or imply that the facility be open to the public, it is necessary to keep in mind that the licensee may have no control over his patrons save the power to eject them for good cause. As we have said, the manager of an hotel, like the manager of other facilities, must take reasonable care for his patrons and, if cause is shown which requires that a patron be closely supervised or ejected or that another patron be warned, the manager should take whatever may be the appropriate step in the interests of the safety of his patrons." 29 The plaintiff, Chordas, sought to establish his case against the publican on one of two bases. The first was that his assailant, King, had been drinking at the bar for more than two hours and that he was known to be a troublemaker and of a violent or aggressive disposition when intoxicated. On the basis of cases from Canada and the United States, the Full Court would have accepted a duty to act in a case where the hotel "knew or ought to have known of facts requiring intervention in order to protect other patrons": p 98. However, the trial judge found that King "was not known to be of a violent or aggressive disposition or to be troublesome and that, at the time of the incident, he was not behaving in such a way as to make his mere presence an obvious danger to other persons in the bar": p 100. The Court also noted that the plaintiff had been in as good a position as anyone to observe whether or not Mr King was a danger and had perceived no danger. That aspect of the claim therefore failed on the facts. 30 The second basis upon which the plaintiff sought to make out his case was that the hotel had a duty of care to other patrons which was breached by permitting Mr King "to remain in the bar when he 'was well affected by intoxicating liquor'." In this respect, the Full Court accepted that a duty of care could arise if "the mere fact that King was well affected by liquor made it reasonably foreseeable to the bar staff that he might harm another person or that a reasonably prudent hotel manager would have taken steps to remove King from the bar or would have ceased serving him liquor before he became well affected by it." The trial judge's finding of no breach of duty of care in this circumstance was upheld by the Full Court: p 100. Their Honours noted: "There was no evidence before his Honour that it was the practice in the industry to remove from bars patrons who had been there for several hours but were not causing trouble and were not known to cause trouble or to be aggressive in drink."

As appears from what follows in the judgment of the Full Court, the plaintiff also failed to establish that the supply of liquor by the hotel to Mr King caused the assault. 31 Finally, the Full Court in Chordas noted that s 79 of the Liquor Ordinance 1975 (ACT), which prohibited a licensee from supplying liquor to a person in respect of whom there are reasonable grounds for believing that he is intoxicated, was relevant to the content of the common law duty owed by the hotel keeper to patrons, but did not give rise to a private right of action for breach of statute: p 102. 32 Chordas was applied by this Court in Oxlade v Gosbridge Pty Ltd (unrep, NSWCA, 18 December 1998) referred to by the trial judge at [34]. Ms Oxlade sued the owner, the lessee and the licensee of the hotel, not for injury caused to her, but for contribution in relation to damages for which she had been found liable in negligence when the boisterous behaviour of intoxicated patrons in the car park at closing time led her to hastily reverse her vehicle, colliding with and injuring another person in the car park of the hotel. As explained by Mason P, there was no attempt to differentiate between the defendants, but on a claim for contribution it was necessary to demonstrate that the defendants owed a duty to the injured party, for which they could have been held liable if sued by him for the injuries caused by the plaintiff. Referring to Smith v Leurs (1945) 70 CLR 256, which was later applied in Modbury Triangle, the President noted that a duty to exercise care in controlling a third party to prevent that third party doing damage to another was an exceptional case. His Honour continued: "The exceptional nature of the relevant duty of care means that a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons."

On the facts, the plaintiff was successful (Mason P and Shepherd AJA, Fitzgerald AJA dissenting). 33 Since the decision in Modbury Triangle, this Court revisited the duty of an occupier to take reasonable measures to control rowdy and dangerous patrons whose activities had the potential to threaten the safety of others incidentally in Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 at [113]-[116] (Heydon JA, Mason P and Hodgson JA agreeing) and in TAB Limited v Atlis [2004] NSWCA 322 (Mason P, Beazley and Ipp JJA). The latter case involved rowdy behaviour by two young men at a TAB agency which was crowded with patrons. Alcohol was not sold on the premises, but the men were clearly under the influence of alcohol and one of them had a bottle which he eventually threw at another patron who had asked them to leave. The Court unanimously held that, in the words of Ipp JA, "the circumstances were such as to give rise to the imposition of a duty on [the occupier and its manager] to take reasonable steps to prevent injury to the TAB patrons from the activities of the two men": at [40]. The Court divided over the question of breach, which turned on whether the manager had taken reasonable steps to avoid the foreseeable risk of injury occurring. 34 Returning to the present case, in considering the existence and scope of the duty of care owed, the trial judge took into account s 2A of the Liquor Act 1982 (NSW) which identified as a primary object of the statute "the minimisation of harm associated with the misuse and abuse of alcohol (such as harm arising from violence and other anti-social behaviour)". His Honour also referred to s 103(1) of the Liquor Act which empowered a licensee or an employee of the licensee to "turn out, or cause to be turned out of the licensed premises" any person who is intoxicated. The section authorised the use of "such reasonable degree of force as may be necessary" to turn a person out: s 103(3A). 35 His Honour also took into account the provisions of s 125 of the Liquor Act, which relevantly state: " 125 Conduct on licensed premises (1) A licensee shall not: … (b) permit intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises. … (3) A person (whether or not he or she is the licensee) shall not, on licensed premises, sell or supply liquor to any person who is at the time in a state of intoxication. … (4) Where a person is intoxicated on licensed premises, the licensee shall be deemed to have permitted intoxication on the licensed premises unless the licensee proves that the licensee and his or her employees took the steps set out in subsection (4A) or all other reasonable steps to prevent intoxication on the licensed premises. (4A) For the purposes of subsection (4), the following are the relevant steps: (a) asked the intoxicated person to leave the premises, (b) contacted, or attempted to contact, a police officer for assistance in removing the person from the premises, (c) refused to serve the person any alcohol after becoming aware that the person was intoxicated."

Breach of each of these prohibitions is an offence and carries a prescribed penalty. 36 His Honour noted a submission that s 125(1)(b) of the Liquor Act gave rise to a statutory cause of action (at [48]) but in accordance with the reasoning in Chordas concluded that it did not: at [53]. That conclusion is not challenged. However, his Honour continued at [54]: "It seems to me that a breach of a statute may be relevant in an appropriate case as affording evidence of a breach of common law duty, where such duty is held to exist … . Moreover, the existence of a statutory power can be relevant to a determination as to the existence of a duty of care, such as a duty to control others." 37 His Honour's conclusion in relation to the duty of care is to be found at [55], expressed in the following terms: "I have come to the conclusion that the defendants did owe to the plaintiff a duty to exercise reasonable care for her safety whilst the plaintiff remained lawfully on the hotel premises during its trading hours. … I consider that the defendants owed the plaintiff a duty such as extended to take reasonable measures to safeguard the plaintiff from foreseeable risk of harm from the conduct of intoxicated or unruly patrons on the hotel premises." 38 In Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 at [56] Gummow and Hayne JJ, by reference to a passage in the judgment of McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [81] and [106] noted: "His Honour also emphasised that the more specific the terms of the formulation of the duty of care, the greater the prospect of mixing the anterior question of law (the existence of the duty) with questions of fact in deciding whether a breach has occurred. On the other hand, the articulation of a duty of care at too high a level of abstraction provides an inadequate legal mean against which issues of fact may be determined." 39 As will be seen shortly, the manner in which the plaintiff pleaded negligence in the Court below, depended to an extent on a reasonably abstract statement of the duty of care. The duty might more helpfully be stated to include the following propositions, namely that:

(1) the duty arose in relation to the likely behaviour of a particular patron or group of patrons,

(2) whose presence at a particular time was or should have been known to constitute a source of danger to other patrons. 40 As his Honour noted at [56], the plaintiff submitted that the defendants were negligent: "(i) in continuing to serve drinks to the red headed man, the blonde headed man, and the other patron with them after they had been involved an earlier incident and at a time when they were affected by intoxicating liquor;

(ii) in failing to have adequate security personnel on duty at the tavern;

(iii) in failing to require the three men to leave at the very latest after the red headed man broke the glass and held it towards the plaintiff and her husband;

(iv) in contravening s 125 of the Liquor Act ." 41 His Honour upheld the breaches identified in sub-pars (i) and (iii) and also found contravention of s 125(3) of the Liquor Act, although the significance of the contravention is not entirely clear, given his Honour's conclusion that no statutory cause of action arose from it: see [70] and [53]. It would appear that the findings in relation to s 125(3) merely reinforced the other assertions separately upheld. In relation to sub-par (iii), his Honour did not accept that the defendants were negligent in not having adequate security personnel on duty at the time of the altercation: at [66]. That conclusion is separately challenged by way of a notice of contention, which will be addressed in due course. Breach of duty 42 As noted by Gleeson CJ in Cole v South Tweed Heads Rugby League Club, at [10], "[i]ntoxication is an imprecise concept". Further, as his Honour noted at [11], by reference to the judgment of Barwick CJ in R v O'Connor (1980) 146 CLR 64 at 71: "The state of drunkenness or intoxication can vary greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened … ."

It must also be accepted that alcohol is disinhibiting and may reduce a person's capacity to make reasonable decisions: Cole at [13]. It is foreseeable that some people will become aggressive when drunk, but it does not follow that a publican must, acting reasonably, treat every intoxicated patron as a potential source of unprovoked violence. 43 On the facts presented at trial, nothing was known about the character or disposition of the men who attacked Mr Wagstaff, other than that which was revealed on the evening in question. 44 By 9pm, Mr Hislop was aware of the presence of the two men and that they had been drinking beer and later scotch, "since early afternoon". He stated that, shortly prior to the last drinks served to them, he decided from his "observations" of their behaviour in the poolroom, that they had "had enough to drink". He did not refuse them a further round, however, but did inform the blonde haired man that this was their last drinks. He described them as "moderately affected by alcohol". He did not, however, identify any aspect of their behaviour as aggressive or as causing him concern for the safety of other patrons. It is, no doubt, unfortunate that he was not available to give evidence, but that factor cannot give rise to any finding adverse to the defendants. His Honour dismissed the evidence of Mr Wear and Mr Gett as of no real assistance, because neither had heard or seen what led up to the assault on Mr Wagstaff: at [24]. On the other hand, it is clear that both were seated near the poker machine area and neither recalled any previous disturbance which might have attracted their attention. In particular, Mr Gett did not agree that there had been any boisterous or rowdy behaviour on the night in question. 45 It is necessary, therefore, to consider such warning conduct as may have taken place immediately prior to the assault. It is clear that whatever happened, it happened within a reasonably confined period. His Honour found that Mrs Wagstaff arrived at the tavern at about 9.05pm and said that she sat to await her husband: at [5]. He therefore arrived after that time and purchased a drink for himself and for his wife, which they consumed. Mr Wagstaff went to the main bar to buy a second round, during which time his wife changed position so as to be closer to another poker machine, which she intended to play. This appears to have been next to a poker machine at which the three men were then playing. Their behaviour at that point did not appear to have aroused any concern on her part. The altercation commenced when Mr Wagstaff returned with the second round of drinks. It appears that the altercation had two somewhat indistinct parts, the first involving verbal abuse and the smashing of the glass. 46 The point at which the bar manager, Mr Hislop, arguably became aware of the level of intoxication and aggression being displayed by the red haired man was when he approached to take the broken glass. Despite a possible inference from Mrs Wagstaff's evidence that he had deliberately smashed his glass on a poker machine, the exchange with Mr Hislop suggests that it was not a deliberate act, but had been an accident. The case for the plaintiff depended upon the alleged unreasonableness of Mr Hislop's conduct in failing to turn out the red haired man and his friends at that point. 47 The question of timing was not the subject of any precise evidence. However, his Honour was satisfied that "from the time that the red headed man first abused Mr Wagstaff to the time that the incident was over in its entirety", involved approximately 15 minutes: at [27]. First finding of negligence 48 His Honour's first conclusion as to liability was expressed in the following terms, at [64]: "I am satisfied on the evidence that the two men were well affected by intoxicating liquor at the time the altercation began and that their insobriety should have been obvious to the bar manager and should have influenced him to decline to serve them that last round of drinks just shortly before the altercation commenced. Had he declined service, it is likely the men would have then left the tavern. Otherwise, the power to 'turn out' was available to be exercised." 49 The first finding relates to his Honour's acceptance of the allegation in sub-par (i) - set out at [40]. The finding did not involve any reference to "an earlier incident", but merely referred to the fact that their insobriety "should have been obvious" to Mr Hislop. Indeed, his own evidence concedes that he thought them moderately affected by alcohol and had told them that they had been served their last round of drinks. It would appear that his Honour's finding of a breach of s 125 of the Liquor Act flowed from the supply of the last round of drinks and the failure to ask them to leave the premises at that time. 50 Although it seems to be a matter of speculation, the finding with respect to causation, namely that the men would have left forthwith and the altercation would not have occurred, may be accepted. However, the question is not whether there was a breach of the statute, but whether the supply of further drinks and the failure to request the men to leave involved a breach of the duty of care owed to other patrons. On the reasoning of the Full Court of the Federal Court in Chordas and of this Court in TAB Limited v Atlis, the mere fact of a degree of intoxication will not give rise to a duty to take immediate steps to remove the affected person, in order to protect other patrons. An additional element is required. That element is knowledge, either actual or constructive, of the aggressive character of the person, when intoxicated, based either on known characteristics or conduct on the occasion in question. There being no prior knowledge of the men, or their characters, and there being no evidence of disruptive or aggressive conduct on an earlier occasion on the night in question, the conduct of the bar manager, prior to the commencement of the altercation, did not constitute a breach of duty to Mrs Wagstaff. Second finding of liability 51 After dealing with the question of security personnel, his Honour then turned to consider whether there was negligence in failing to require the three men to leave "at the very latest after the red headed man broke the glass and brandished it": at [67]. his Honour upheld that submission, which constituted the complaint in sub-par (iii) of the case as presented by the plaintiff, stating at [68]: "I accept, as the witness said, that the remains of the glass was held towards the faces of the plaintiff and her husband. The bar manager came upon the scene, and I am satisfied at the time that he did so, it was foreseeable that both Mrs Wagstaff and Mr Wagstaff were exposed to a risk of injury. Here was an intoxicated patron who was holding a broken glass in his hand in a threatening manner. This man and his companions had been drinking in the hotel for many hours and had earlier misbehaved. Neither of the red headed man's companions sought to take the glass from him. This was left to the bar manager, and the red headed man was reluctant to surrender the glass to him. In these circumstances, it seems to me immediate action was called for by the bar manager to require the red headed man and his companions to leave the hotel and, if need be, to call upon the police for assistance." 52 As appears from the terms of this finding, his Honour considered there was a foreseeable risk of injury to the plaintiff because the intoxicated patron held a broken glass in his hand in a threatening manner and because the man and his companions "had earlier misbehaved". However, for the defendants to be guilty of negligence, their agent, Mr Hislop, must either have been aware of those two factors, or should reasonably have been aware of them. 53 Apart from the fact that Mr Hislop decided that they had had enough to drink and would thereafter be refused drinks, there was no evidence that they had earlier "misbehaved" in a manner which suggested they might be a threat to other patrons. 54 Secondly, the evidence did not establish with any clarity that Mr Hislop was present when, as Mrs Wagstaff alleged, the red haired man presented the broken tumbler in a threatening fashion towards her husband and herself. Rather, the evidence of Mr Wagstaff was that the red haired guy swore, threw his glass down, reached down and picked it up and was holding the glass up with the jagged edges pointing out in front of him towards Teresa and himself: Tcpt, p 153. After explaining that he was seeking to calm the man down, he explained what happened thereafter (Tcpt, p 155) in the following terms: "The barman, Jay Hislop, came over soon after he heard the raised voices and then when the glass broke and the guy picked it up Jay came over and grabbed his hand, something like that, … to hold it, from being moved I presume, and said to the guy 'I'll pick that up, leave that to me' and the guy argued with him saying 'no I'm doing it, I'll pick it up' and Jay said something along the lines of 'hey I work here, that's my job, I will do it'. And Jay took the glass out of his hand and reached down and picked up some other chunks of glass that were on the floor and then he walked away …."

Mr Wagstaff indicated that almost simultaneously with the barman leaving, he had placed his hand to his nose and made a gesture and said "Fuck off idiot, you're pissed": Tcpt, p155-156. He said that he almost immediately looked over his shoulder and saw a man with sandy hair running at him and swinging a punch: p 156. 55 Mrs Wagstaff gave similar evidence (Tcpt, p 38) but in relation to Mr Hislop stated: "… I asked Gerry three times if we could leave and the barman Jay, came down and he went to get the broken glass off the drunk man but he would not give it to him until Jay convinced him that he worked there because he said to him, 'I can pick up my own f'ing broken glass' but Jay took the glass off him and came back and the tirade of abuse was still going on and Jay just stood there and did nothing."

She said that this went on for between five and ten minutes, which was not consistent with the timing described by her husband, whilst her husband continued to try to calm the man, following which he said words to the effect of "Piss off you, you are drunk", at which stage the blonde man punched him. 56 Even if the glass was being brandished in a threatening manner when Mr Hislop arrived, there is something strange about the suggestion that the conduct of the red haired man, in relation to the broken glass, in the presence of Mr Hislop was threatening towards the plaintiff or her husband. Her explanation as to why the man did not hand over the glass was that he seemed to think that Mr Hislop's conduct implied that he was too drunk to be able to clear up his own mess. Thus, he agreed to let Mr Hislop take the broken glass once he was assured, according to Mrs Wagstaff, that Mr Hislop was merely doing his job. 57 More importantly, there was at that stage no fight to break up. Nobody saw a threat to Mr Wagstaff from another member of the group, and indeed there was no attack until he made a gesture towards the red haired man which the trial judge held, in Mr Wagstaff's case, involved acting "very imprudently" and making "a gesture which was offensive and calculated to offend": G. Wagstaff v Haslam [2006] NSWSC 295 at [7]. His Honour continued: "He was also imprudent in uttering the words 'Fuck off idiot, you're pissed'."

His Honour held that this constituted inflammatory conduct in "what was obviously a volatile situation". 58 Mrs Wagstaff's response, which seems entirely reasonable, was to implore her husband to back down and leave. As he was the sober party to the altercation, one might imagine that the bar manager would, if he had decided to intervene, have adopted the same course, being that most likely to prevent an escalation of hostilities. The evidence appears to be overwhelming that the immediate trigger for the first punch to be thrown was the conduct of Mr Wagstaff. However, it was not his wife's case that there was any negligence on the part of Mr Hislop in failing to calm her husband down and seek to defuse the situation by asking him to move away. 59 That which his Honour, undoubtedly accurately, described as a volatile situation, required a judgment to be made by Mr Hislop, in the heat of the moment. That he acted reasonably and prudently in removing the broken glass from the immediate environment, seems to be beyond doubt. That he acted unreasonably and without due care for the safety of Mr and Mrs Wagstaff thereafter, given what he knew of the circumstances, was not established on the probabilities. 60 At [69], his Honour continued: "I accept that a period of approximately five minutes went by from the commencement of the altercation and the time at which the blonde headed man first attacked Mr Wagstaff. This was the period within which I consider the exercise of reasonable care by the bar manager required him to take steps for the removal of the red headed man, the blonde headed man and their companion. According to the bar manager in the account he gave to the police, one of the locals gave the bar manager assistance in removing the red headed man and the blonde headed man from the hotel when assistance was sought … ." 61 With respect, this paragraph fails to identify what occurred during those five minutes in the presence of, or to the knowledge of, Mr Hislop. The evidence does not, in my view, establish that the glass was broken in anger, and certainly does not establish that Mr Hislop knew or should have been aware that it was. He was not present during the abuse which preceded that action. Nor was he present during the period which it took to relay the broken glass to the bar and return to the area of the altercation. Yet, if Mr Wagstaff's account is to believed, there was very little time between the removal of the glass, his provocative gesture and the landing of the first punch. It is true that Mrs Wagstaff thought that a longer period elapsed, but his Honour did not reject Mr Wagstaff's account. However, even if Mr Hislop did return a minute or two prior to the punch being landed, the idea that Mrs Wagstaff proved on the balance of probabilities that his conduct during that period was a breach of duty, strikes one as somewhat fanciful and as an exercise in reconstruction with the benefit of hindsight. Accepting that Mr Hislop knew that the red haired man was intoxicated, abusive and belligerent, it would nevertheless have been reasonable for Mr Hislop to move cautiously so as not to provoke the situation; it would also be reasonable for him not to anticipate the provocative behaviour of Mr Wagstaff. It is likely that even if he wished to turn the red haired man out of the tavern, he judged that to attempt that step in the heat of the moment would inflame rather than calm the situation. In my view, on the findings of primary fact made by the trial judge, no breach of duty has been made out.

Causation 62 The second finding in relation to liability is not readily dissociated from the finding in respect of causation. Thus, at [71], his Honour concluded: "I consider it more probable than not that had the bar manager acted promptly when the glass was broken, the assault upon Mr Wagstaff would have been avoided."

As noted above, the injury to the plaintiff resulted partly from her husband's provocative conduct and partly from her own action in going to the assistance of her husband. Nevertheless, there is no dispute that the attack on Mr Wagstaff materially contributed to her injury. 63 The finding which his Honour made with respect to liability was that Mr Hislop should have taken steps to remove not merely the red headed man, who did not throw the first punch, but also the blonde headed man and their companion. If Mr Hislop had been successful in taking that action, no doubt the assault on Mr Wagstaff would not have occurred because the parties would have been separated. However, the correct approach to causation, in my view, should have been to ask whether, if Mr Hislop had taken reasonable steps to effect that purpose, the assault probably would not have occurred. If there had been resistance, he would have needed assistance. There was still the possibility that Mr Wagstaff might make his provocative gesture in any event. No assessment of these matters was undertaken. It also requires an assessment of whether, if Mr Wagstaff had made the provocative gesture and remark, Mr Hislop, whose attention would presumably have been directed to the red haired man in front of Mr Wagstaff, would have had any opportunity at all to prevent the blow being landed by the blonde haired man. Again the matter was not addressed. 64 There was undoubtedly a paucity of evidence upon which to make this assessment. In my view, even if his Honour were correct in determining that Mr Hislop was reasonably required to take steps to remove the red haired man and his companions from the tavern, the evidence did not establish on the balance of probabilities that such steps would have prevented the assault occurring. This conclusion is related to the reasonableness of Mr Hislop's conduct. These are the kind of matters he needed to assess in deciding how to respond to the volatile situation. Even if it were concluded with hindsight that his inaction was not the appropriate response, it did not demonstrate a lack of reasonable care. 65 Mrs Wagstaff's claim was entirely derivative, in the sense that she reacted to the assault on her husband. His Honour did not find that Mr Hislop acted unreasonably in the steps he took after the first assault had happened. Accordingly, her claim depended upon proof that the first punch occurred through the negligence of Mr Hislop. That was not, in my view, established. Adequacy of security personnel 66 It remains to consider whether his Honour was in error in rejecting the plaintiff's assertion that there were inadequate security personnel on duty. As his Honour noted at [66]: "No evidence was placed before the Court as to the security measures that ought reasonably to be expected in the hotel by 9pm with that number of patrons."

His Honour concluded that the evidence did not permit him to find "that in leaving only the two barmaids and the bar manager on duty, the defendants were behaving unreasonably in the circumstances". 67 The plaintiff's case acknowledged the lack of expert evidence as to the requirements for security on licensed premises, but contended that an inference could be drawn from the fact that a security officer had been rostered on duty, on premises run as a commercial business, which would not have incurred such an expense if it were not reasonably necessary. 68 That approach has a somewhat abstract quality to it. It assumes for a start that the only purpose in having the additional member of staff present was to fulfil the defendants' duty of care to protect patrons. However, as Mr Wagstaff explained, the man "Neil" had other functions including the collection of dirty glasses. Secondly and perhaps more significantly, the submission ignores the fact that an assessment of the continued need for Neil's presence, apparently made after 7pm, was based on the circumstances at that time. Mr Wagstaff's evidence that Neil was to be seen "regularly" at the tavern does not suggest that he was always present, or that any other security personnel were present, whenever the tavern was open. The inference may be drawn that he was there on the evening of the Wednesday because of the crowd attracted by the topless barmaids. Whether the need continued, and for how long, was clearly a matter which could reasonably be assessed at the time. Mr Wagstaff's own evidence of his conversation with Mr Haslam supported the view that Mr Haslam had made such an assessment. 69 It might perhaps have been inferred that Mr Haslam's absence from the witness box suggested that he could not have advanced the defendants' case further in this respect. However, there was no evidence from Mr Wagstaff, Mrs Wagstaff, or any other person to suggest that the assessment was unreasonable. In the absence of any evidence called by the plaintiff to establish unreasonableness according to current industry practice, his Honour's conclusion should not be disturbed. Estoppel or abuse of process 70 Before leaving the cross-appeal on liability, it is necessary to identify an argument raised for the plaintiff, based on the failure of the defendants to challenge the judgment in favour of Mr Wagstaff. The argument was raised by reference to the challenge to the reduction of damages payable to Mrs Wagstaff by the figure of 20% for contributory negligence attributed to her husband in his separate proceedings. Because of the conclusions reached in relation to liability, it is not necessary to address that question. However, as senior counsel for the defendants noted in argument, if estoppel were to preclude the defendants challenging the finding with respect to contributory negligence, as against Mr Wagstaff, they would appear to preclude the agitation of the cross-appeal with respect to liability: Tcpt, C/A, 11 October 2006, p 76. 71 However, this logic was not accepted by counsel for the plaintiff: Tcpt, p 85. Rather, he was content to rely on the estoppel argument in relation to the operation of s 30 of the Civil Liability Act 2002 (NSW), which relevantly provided: " 30 Limitation on recovery for pure mental harm arising from shock (1) This section applies to the liability of a person ( the defendant ) for pure mental harm to a person ( the plaintiff ) arising wholly or partly from mental or nervous shock in connection with another person ( the victim ) being killed, injured or put in peril by the act or omission of the defendant. … (3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim. 72 The plaintiff's contention was, therefore, that the statutory requirement for proportionality in the reduction in damages cannot be achieved unless the same proportions are adopted in each case. The estoppel argument, so understood, depended on a specific statutory operation. In written submissions filed at the invitation of the Court after the hearing, counsel did not seek to extend the contention beyond the question of contributory negligence. 73 Nevertheless, it is appropriate to note that the result in the present case, although it is inconsistent with the finding of liability in relation to Mr Wagstaff, does not mean that the cross-appeal on liability in relation to Mrs Wagstaff alone constitutes an abuse of process, or would bring the administration of justice into disrepute, in the sense noted by McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286. Similarly, the two judgments, not being between the same parties, do not conflict in the sense with which the High Court was concerned in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603. Nor, as in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541, in the words of Lord Diplock, are the defendants in the present case seeking to make "a collateral attack" upon the decision in relation to Mr Wagstaff. They did not seek leave to appeal in respect of their liability to him and have, in that sense, accepted responsibility for the judgment debt. 74 Each of the plaintiff and her husband had separate causes of action available against the defendants. If their claims had been heard separately, the evidence might have differed and inconsistent judgments might have resulted. Because the causes of action were independent and not derivative, except to the extent that contributory negligence was governed by s 30(3) of the Civil Liability Act, different results in separate proceedings would not relevantly bring the administration of justice into disrepute: c.f. Scala v Mammolitti (1965) 114 CLR 153. Accordingly, the plaintiff was right not to resist the cross-appeal with respect to liability on this ground. 75 Because it is not necessary to consider the operation of s 30(3) of the Civil Liability Act, it is also unnecessary to consider the operation of s 3B(1)(a) on which, as his Honour noted, no reliance was placed at trial, no doubt because the liability in question was not relevantly "in respect of" an "intentional act" done with intent to cause injury, but was in respect of the negligence of the defendants: see [2006] NSWSC 294 at [76]. Conclusions 76 The cross-appeal should be upheld and the orders below set aside. In lieu thereof, there should be judgment for the defendants against Mrs Wagstaff. Mrs Wagstaff should pay the costs of the trial. She should also pay the costs of the cross-appeal, in relation to which she should have a certificate under the Suitors' Fund Act 1951 (NSW). The appeal against the assessment of damages falls away and should be dismissed with costs. **********

07/03/2008 - Paragraphs lost due to database problem - Paragraph(s) entire judgment

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