Kook v Caftor Pty Limited t/as Mooseheads Bar & Café [2007] ACTSC 1 (29 January 2007)

Last Updated: 13 February 2007

MATTHEW BRENDEN KOOK v CAFTOR PTY LTD

t/as MOOSEHEADS BAR & CAFE

[2007] ACTSC 1 (29 January 2007)

NEGLIGENCE - occupiers' liability - scope of duty to contractual entrant - glass on nightclub dance floor surface - customer suffering hand laceration on glass when falling on dance floor

Wood v Postnet Pty Ltd [2002] ACTSC 48

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Maclenan v Segar [1917] 2 KB 325

Watson v George [1953] HCA 41; (1953) 89 CLR 409

Downunder Rock Cafe Pty Ltd v Roberts [1998] VICSC 101

Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317

Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104

No. SC 427 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 29 January 2007

IN THE SUPREME COURT OF THE )

) No. SC 427 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MATTHEW BRENDEN KOOK

Plaintiff

AND: CAFTOR PTY LTD t/as MOOSEHEADS BAR & CAFE

Defendant

ORDER

Judge: Master Harper

Date: 29 January 2007

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff for damages to be assessed.

1. In the early hours of Good Friday, 29 March 2002, the plaintiff and some friends were at Mooseheads, a nightclub in London Circuit, Canberra City, when the plaintiff fell on the dance floor on the upper level of the premises and cut his hand severely on a glass. There is a conflict of evidence as to whether he had the glass in his hand as he fell, or whether the glass was already on the dance floor. He brings this action against the defendant company, which owns and operates the business Mooseheads as a bar and nightclub, and was at all material times the occupier having the care, control and management of the premises.

2. By agreement, I have heard the evidence in relation to liability only. If the plaintiff were to fail, judgment would be entered for the defendant and that would conclude the matter. If he succeeds, judgment will be entered in his favour for damages to be assessed. The plaintiff's case is that while he was on the dance floor, dancing (in the sense of shuffling about to the music, but without a partner) he was bumped from behind, lost his footing and fell, his outstretched right hand striking a glass which someone had left on the dance floor, breaking the glass and cutting his hand. His case is supported by his own evidence and that of his three friends.

3. The case for the defendant is that the plaintiff and at least one of his friends were skylarking: the friend picked the plaintiff up, the plaintiff wrapped his legs around the friend, and the plaintiff then fell to the floor, cutting his hand on his own glass which he was holding at the time. This version is supported by the evidence of Mr Carl Shaw, who was at that time employed by the defendant in charge of security, and was on duty as a security officer or bouncer overseeing the dance floor.

Evidence for the plaintiff

4. The plaintiff's evidence is that at about 9.00 pm on Thursday 28 March 2002, he met by arrangement a number of friends at the Italo-Australian Club at Forrest, with the intention that they would spend some time there and move on to Mooseheads later in the evening. Among the friends were Dane Miller, Rebecca Blewitt and Kaine Miers. Each of them gave evidence. The plaintiff says that he had one schooner of beer at the Italo-Australian Club, and that the group left at about 11.30 pm for Mooseheads. The plaintiff was twenty years of age. By 2002 he had spent two years at university, pursuing a science degree in human biology. He was taking the year 2002 off to earn some money to fund his final year. He was a regular Mooseheads customer, attending two to three times a month, and the holder of a Moose Card, which entitled him to discounted prices for drinks, free entry at some times and a reduced entry charge at other times. These cards were issued annually, and were available for purchase from a table at the front of the club.

5. The plaintiff's evidence was that the ground floor level of the club was generally open to the public, but an entry fee was charged to go upstairs to the bar and dance floor. The system was that on payment of the entry fee to a staff member at the foot of the stairs, one would be given a stamp, I gathered an inked rubber stamp applied to the back of the hand, as evidence of payment. The entrant would then be allowed upstairs.

6. The plaintiff's recollection was that on the night in question, he and his friends arrived at Mooseheads some time after 11.30 pm, joined a queue to go upstairs, and paid an entry fee of three dollars.

7. On the upper floor, there were toilets and a bar, with a level area with vinyl flooring surrounding on three sides a rectangular slate dance floor which was a step below the rest of the floor. In one corner of the dance floor, a disc jockey had his musical equipment set up, and music played throughout. There was no wall or other barrier separating the upper floor from the dance floor for most of its length, though a small part of it was separated by a full-height wall, and another small part by a waist-height wall. There was some seating, and there were also some fixed tables for glasses and ashtrays. The plaintiff left his car at the Italo-Australian Club, intending to have a few drinks at Mooseheads. He said that it was a very busy night at Mooseheads, and that the dance floor was packed. The crowd around the bar was a few people deep and there was quite a wait for service.

8. The plaintiff said that following his single schooner at the Italo-Australian Club, he had probably four or five schooners at Mooseheads, over a period of about four hours.

9. Asked to recall the surface of the dance floor, the plaintiff (contrary to evidence of staff which I accept) said that it was a timber floor. He also said that it was very wet and sticky in some patches. It was not uncommon to encounter empty bottles or glasses on the dance floor, and people would move them, sometimes with their feet, towards the sides of the dance floor. He would occasionally see a staff member collecting glasses. He identified a particular person, nicknamed Moose Lee, of Chinese appearance, whom he had seen on previous occasions at the nightclub but did not see on the night of his accident. He also said that on previous occasions he had noticed that the floor, as well as being wet, was crunchy because of broken glass under the soles of his footwear. He generally wore leather boots with treaded rubber soles, and he had previously noticed glass fragments in the tread of his shoes.

10. He was asked whether there was any prohibition against taking glasses or bottles on to the dance floor. He said that there was a "general sort of knowledge that you weren't supposed to go on the dance floor with drinks". There were no signs, and patrons often took glasses or bottles onto the dance floor. Occasionally a bouncer would walk past and direct them to put the glass down or to leave the dance floor. This might happen on twenty to twenty-five percent of occasions, in his previous experience. He had often seen people sipping away at their drinks while dancing. On some nights he had seen staff mopping the floor but did not recall seeing this on the night of his accident.

11. His evidence about the circumstances of his fall was that he was on the dance floor with Kaine Miers and Rebecca Blewitt, shuffling to the music and discussing whose place they would stay at for the rest of the night and how they would get there. The plaintiff was standing between the disc jockey's station and an entranceway to the dance floor beside a full height wall. There was a bouncer sitting on a stool above the dance floor, at the end of the wall, talking to a female staff member. He recalled that he and his friends joked about the fact that the bouncer, an older man, appeared to be flirting with the younger employee. He said that there was still a number of people on the dance floor, including a half a dozen or so close to him and his friends. He could remember seeing some glasses on the floor near the disc jockey throughout the night, and, as far as he could recollect, no-one collected them during the evening. As he was talking to his friends and "having a bit of a dance" he was bumped from behind. He did not see the person who bumped him. He lost his balance and slipped. He fell backwards. He put his right hand out to break his fall. As he hit the floor he felt a sharp pain in the hand. He saw that blood was squirting from it. He applied pressure to the wound with his other hand and went to the bouncer and asked for help. The bouncer looked at the injured hand and took the plaintiff to a store room adjoining the bar where he found a small piece of gauze to put on the wound. The store room was accessible only through the bar. The bouncer then took the plaintiff downstairs and out to the footpath. He took a chair from the downstairs bar for the plaintiff to sit on. The plaintiff's evidence is that the bouncer took him outside holding him by his belt from the back. The plaintiff's friends, he said, were not sure where he had gone and did not come out at that stage to help. After a short time they found him. A friend of Rebecca's who had been at Mooseheads was a trained nurse and rendered some immediate first aid. After some time, an ambulance arrived and took the plaintiff to hospital where he underwent surgery.

12. In cross-examination, the plaintiff agreed that on paying the entrance fee, the practice was that one would be given a raffle ticket. He disagreed that payment of the fee was optional and related solely to the purchase of the raffle ticket. His perception of the system was that you would line up, pay the fee to the staff member, be given a stamp and a ticket, and then go upstairs.

13. Kaine Miers described himself as a good friend of the plaintiff. His recollection was that he and his friends had had to pay money for a ticket every time they went upstairs at the nightclub. His recollection of the layout of the premises was slightly different to that of the plaintiff: he recalled a narrow podium about two feet above the dance floor, and about two feet in width, against the long wall of the dance floor against the bar. His recollection was that there were always glasses on the dance floor, and that people just put them down where they were standing when they finished their drink. He had accidentally kicked glasses while dancing, and had seen other people kick them. He recalled having glass fragments in the soles of his shoes after a night at Mooseheads. He remembered a shelf to the side of the dance floor, which always had glasses on it, and if the shelf was full there would be glasses on the floor adjacent to it. He had regularly taken bottles and glasses onto the dance floor at Mooseheads, which he had attended once every two or three weeks during the time leading up to the plaintiff's accident, and he did the same as everyone else, that is put his glass down on the floor when he had finished his drink, particularly if there was no room on the shelf or tables. He said that the floor was always sticky. He had no specific recollection about glasses on the dance floor on the night of the plaintiff's accident. On that night he was drinking bourbon and coke. He had had a bit to drink and was moderately intoxicated but not drunk. He was standing quite close to the plaintiff at the time of the fall, and remembered that they were talking about how they would get home and where they would stay, when the plaintiff fell over backwards. It appeared that his feet had slipped out from underneath him. Mr Miers did not see what caused him to fall. He then saw him get up with a bleeding hand. He saw the plaintiff leave the dance floor and go to the bouncer, accompanied by Rebecca Blewitt. He saw them go downstairs, and followed with his friend Dane Miller. He asked the bouncer whether they could go back into the club to call an ambulance. They were eventually allowed to do so and given some tissues to hold on the plaintiff's hand. They waited with the plaintiff until the ambulance arrived.

14. Mr Miers agreed in cross-examination that he had discussed the events of the night with the plaintiff, and that his recollection might have been influenced by those discussions. He had had similar discussions with Rebecca Blewitt and Dane Miller. He was adamant that he and his friends were required to pay a cover charge to enter the upstairs part of the nightclub on that night, and on other Thursday nights when he had been there. He had no specific recollection about a raffle or raffle ticket. Immediately before the fall, he had not noticed a glass in the plaintiff's hand but he could not be certain that he might not have been holding one.

15. Rebecca Blewitt said that she had been a regular customer at Mooseheads before the accident, usually as part of a group which included the plaintiff and other friends. On 28 March they had arrived, she thought, at about 11.00 pm, to find the nightclub busy and crowded. She recalled lining up to pay her money for entrance ($3.00 because she was a Moose Card holder) and going upstairs to the dance floor area. On previous occasions she had seen glasses, empty and full, around the dance floor, including broken glasses. They were cleared every ten or fifteen minutes by bar staff. Customers would kick glasses occasionally. The night of the accident was a normal night in that regard, with glasses on the perimeter of the dance floor and on the surrounding ledges. There were no signs prohibiting the taking of glasses onto the dance floor, and Ms Blewitt regularly took her glass onto the floor. Her group of friends would sometimes take a jug onto the dance floor and fill their glasses from it. Her evidence was that she was never asked or told to take a jug or glass off the dance floor. She said that the dance floor was always sticky. She had seen people spill drinks on the dance floor and indeed had done so herself.

16. The accident happened at about 4.00 am or 4.30 am on the dance floor, in the corner near the disc jockey station. The group were generally dancing and "just hanging out". They were reaching the end of their night out and were talking about going home. Just before the accident, she was facing the plaintiff. Her evidence was that he did not have anything in his hands. The plaintiff was bumped and she saw him fall. She did not actually see a person bump him, but saw him put his arm out to break his fall. She recalled seeing a glass on the floor, and she saw the plaintiff's hand come into contact with the glass. She then saw a lot of blood. She said that she took the plaintiff to the bar area and spoke to a staff member, asking for some kind of bandage.

17. She recalled a bouncer sitting on the upper level, who must have observed the incident. He was sitting on a seat and talking to a female employee.

18. After she had taken the plaintiff to the bar, she left him to get her other friends. When they got back to the bar, he had gone downstairs and they were able to follow his trail of blood out to the pavement, where they found him. They tried to get back into Mooseheads to ask for a towel to clean up the blood, and to call an ambulance but, she said, they were refused entry. They eventually persuaded staff that an ambulance was needed and a staff member telephoned for one.

19. Ms Blewitt said that she had had a few drinks before arriving at Mooseheads and a couple of glasses of spirits while she was there. She had stopped drinking an hour to an hour and a half before the accident. She described herself as sobering up and able to hold a conversation and recollect incidents.

20. It is common ground that Mooseheads was almost completely destroyed by fire less than a year after the accident. Ms Blewitt had been back to the nightclub after it had been rebuilt. She said that there were security staff standing at the stairs leading up to the dance floor stopping people with drinks. She had been stopped herself, and told to turn around and go back and drink her drink in an area near the bar, not on the dance floor. Since she had returned, she had not seen bottles or glasses on the dance floor. She had also observed that the surface of the dance floor was no longer sticky.

21. She agreed that on the night of the accident, and generally at night at Mooseheads, there were disco lights which flashed and moved about, providing the lighting on the dance floor.

22. The fourth member of the group, Dane Miller, gave evidence that he had attended at Mooseheads every fortnight or so during the period leading up to the accident. He had in the past seen glasses left on the dance floor, and broken glass on the floor, and he had often gone home with glass fragments in the soles of his shoes. He had been on to the dance floor himself with a glass and had on rare occasions been told by a staff member to leave the dance floor with his glass. He had never seen any sign prohibiting the taking of drinks on to the dance floor. He did not personally observe the plaintiff's fall.

23. I had the benefit of a copy of the ambulance service patient case report, and also the Canberra Hospital records of the plaintiff's treatment on the night. The ambulance report is contemporaneous, and records in the handwriting of one of the attending ambulance officers a history as follows: "Patient states fell on dance floor and cut hand +++ on broken glass on floor (outstretched hand to break fall)".

24. The relevant hospital records are also in the handwriting of staff on the date of the accident. The history recorded by the emergency department staff reads: "In a bar - accidentally pushed and fell backwards - put out hand which landed on glass - bled +++ - ambulance called - arterial bleed noticed". The emergency department notes are timed at 6.15 am. An anaesthetist, Dr McInerney, who was engaged for the surgery to the plaintiff's hand, recorded a history as follows: "Fell backwards onto glass - cut right palm, numbness lateral three fingers - ETOH +++ - still smells of ETOH - not nauseated - no vomiting ..." The note is dated but not timed: the plaintiff was taken to the operating theatre at 11.45 am on 29 March and I infer that Dr McInerney spoke to the plaintiff and made notes not long before that. I accept all of these handwritten notes as accurately recording the observations of the staff and the history they were given by the plaintiff at the time.

Case for the defendant

25. The only eyewitness to the plaintiff's accident called on behalf of the defendant was Carl Shaw, head of security at Mooseheads at the time. He had worked for most of his career with the Royal Military College and the Australian Defence Force Academy. The Mooseheads job was a second job. Mr Shaw has left Canberra since the accident and now lives at Wagga Wagga where he runs his own business.

26. At the time of the accident, he said, there were five security staff at Mooseheads, all male. He saw their function as the provision of a safe environment at the nightclub for staff and customers. The method of achieving this involved continual scanning of customers. Two of the security staff were based upstairs, on the dance floor level. They looked for signs of aggression or intoxication. The general rule was that one security staff member was required per hundred customers: if the upstairs crowd dropped below about sixty, Mr Shaw would send the other security officer home. Mr Shaw adopted a position overlooking the dance floor.

27. His evidence was that on the night of the accident, there was a crowd of about sixty customers upstairs including about fifteen to twenty on the dance floor. Music was playing. At about 4.00 am, he recalled seeing two men on the dance floor, obviously friends having a good time, with a little bit of pushing and shoving but no real aggression. Mr Shaw was keeping an eye on them, to make sure that their behaviour did not get out of hand and create a problem for other customers. He saw one of the men leave the dance floor and return with a drink in his hand. Mr Shaw was about to get up and tell him to take the glass off the dance floor when the other man came up and picked the first man up under the armpits. They were facing each other. As he was picked up, the man with the drink wrapped his legs around his friend's waist in a scissor movement, whereupon the friend released him, causing him to fall backwards. As he fell backwards, he put out the hand holding the glass to stop himself. The glass shattered and cut his hand. The whole incident happened very quickly. Mr Shaw estimated that he was two or three metres from the men at the time. He said that he immediately went to the injured customer to see how badly he was injured, and then went to get a teatowel from the bar storage area to try to stop the bleeding. When he got back, the plaintiff was sitting on the floor. A girl (presumably Ms Blewitt) was with him, looking after him. Mr Shaw inspected the wound cursorily, and placed the towel on it as a pressure bandage. He then left the girl to keep pressure on the wound and, he said, got one of the other staff to ring an ambulance. He then went back to the plaintiff and the girl, and walked them downstairs where he got a chair for the plaintiff to sit on, on the footpath near the lane dividing the Sydney Building, of which the Mooseheads premises form part. His recollection was that it was about half an hour before the ambulance arrived.

28. By the time of the accident Mr Shaw had already sent the other upstairs security officer home, and he was the only one on duty. There were two other staff members on that level, collecting glasses, emptying ashtrays and mopping spillages. Also working on the floor were the disc jockey and two bar staff.

29. Mr Shaw said that he made a handwritten report of the incident in an incident report book which was kept on the ground floor at Mooseheads. The book was destroyed in the fire.

30. In his evidence in chief Mr Shaw recalled that the other security officer on duty on the night on the dance floor level was Jason Reaby. In cross-examination, he conceded that he had some trouble remembering whether Jason had been there that night. He accepted that if the wage book did not record him as working on that date he could not have been there. He had no recollection of the identities of the "glassies" who were working there on the night. There had been a high turnover of such staff during his time at Mooseheads: they were mostly university students doing part-time work. Similarly, he was not able to remember the identity of the downstairs doorman, with whom he exchanged places while waiting for the ambulance. Mr Shaw at that time worked three nights a week at Mooseheads, on Thursday, Friday and Saturday. He worked until the night of the fire, which he described as a very traumatic night, but had not worked there since.

31. He was cross-examined in some detail about the question of whether there was a cover charge on the night of the plaintiff's accident. His evidence was that Mooseheads had a cover charge of $5.00 on Friday and Saturday nights. The charge was $5.00 to the public but $3.00 to holders of a Moose Card. There might also be a cover charge on special nights such as New Year's Eve. He then gave evidence as follows:

I suggest to you that on Easter Thursday there was a cover charge to get in? --- That was two dollars.

Two dollars to get in? --- Two dollars, that was for the door raffle.

Was that to get in the front door into the establishment at all or was that to get upstairs? --- Look you know, the thing is it's two dollars and it was - the question was asked by the staff I believe on the door I believe it's two dollars to - to enter into - and all these - everybody knew...

This is to get into the front door from the street is it, in the front door? --- Well, it's for the raffle, if you wanted to go into the - what did they call it many years ago, lucky door prize.

Yes. At what stage were people asked to buy a raffle ticket, was that at the front door going in from the street? --- That's right, your Honour, right on the front door they were asked.

I see. So that to get from the ground floor, once you're inside, to get from the ground floor upstairs there was no...? --- Yes, there was.

Was there a charge for that? --- It's exactly the same, there's no charge, but if you wanted to donate that - that gold coin, that two dollar coin to be part of that lucky door prize that was fine, if you didn't want it, you could go straight up.

Do you mean you might be asked twice, to get into the ground floor and then again if you wanted to go upstairs? --- No, no, no.

Only once? --- If you're on the ground floor - at the moment it's set up - it was set up differently before the fire to what it is now, we had - you could enter the upstairs from the downstairs bar, but to do that you had to walk past the person on the door and that - so the traffic was coming from two ways. Now if it got too busy we'd shut one door so it could only come from one way, they'd have to go out of the downstairs and around through the main stairs in way of explanation, so basically on that Thursday night it was a two dollar lucky door prize entry fee, but that was up to you.

32. A little later counsel for the plaintiff asked Mr Shaw these questions:

Did you have a choice about that, could you say "no I don't want to go into the raffle, I just want to go upstairs?" --- Some people misunderstand because it's two dollars. But that's not why - you had a choice. You could go up and if you sort of said, "two dollars on Thursday cover charge?", well then it would be explained to you that it's not a cover charge. It's up to you whether you want to go in the draw, but everybody...

Well what if you said, "I want to go in the door, but I don't want to pay two dollars"? --- Not a problem.

33. Mr Shaw agreed in cross-examination that on occasions customers went on to the dance floor with glasses, bottles and jugs. He said that they would hide them from him. It was not unusual for him to hear the sound of a dropped glass breaking.

34. About a year before the plaintiff's accident, a management decision was made to permit a limited number of glasses on to the dance floor, with a view to making customers more comfortable. However, Mr Shaw quickly realised that it was impossible to control, and the tolerance policy was discontinued. He explained that he was continually on the floor telling people not to drop their glasses, but they refused to listen and showed no respect. The amount of broken glass on the dance floor became intolerable. Some customers intentionally dropped their glasses. Others could not be bothered putting their glass on a shelf and would put it on the floor when they had finished their drink. At one point management brought in plastic glasses, and at another time shatter glasses, that is to say glasses which shattered in a similar fashion to a car windscreen, rather than breaking into spiked or jagged shards. By the time of the plaintiff's accident, the policy was one of zero tolerance for drinks and glasses on the dance floor, though breaches of the policy by customers continued and broken glasses on the floor remained a common occurrence. The worst offenders during the short tolerance period were RMC and ADFA cadets.

35. The tolerance policy had been influenced by concern that drinks put down on a shelf and left unattended by a customer who was dancing might be spiked, that is drugged.

36. Mr Shaw agreed that the surface of the dance floor became slippery and also sticky depending on the contents of spilt drinks. He also agreed that there were no warning signs prohibiting the taking of drinks on to the dance floor at the time of the accident. He accepted that signs would have been desirable.

37. He agreed that the layout of the dance floor made his task of keeping drinks and glasses off it very difficult, and that it could have been improved if there had been a single entrance to the dance floor. The present layout of the upper floor of Mooseheads, following the rebuilding after the fire, was described to him. He said that he thought it sounded fantastic, and that it would have made his job much easier.

38. It was put to Mr Shaw that at or immediately before the accident, he had been in conversation with a female Mooseheads staff member. He denied this categorically.

39. Nicole Miladinovic has since 1997 been a director of the defendant company and the licensee of Mooseheads. She identified the wages book, which she kept in handwriting, and which seems to have been almost the only document to survive the fire. She had developed and was responsible for the system of cleaning and maintenance of the premises. She arranged staff meetings and staff training. The fundamental rule was that glassware was not permitted on the dance floor. Glasses or bottles found unattended anywhere on the premises were to be cleared immediately. The dance floor was part of the focus, but other areas were also important including the stairs, the bar area and the toilets. The stairs were considered more potentially dangerous than the dance floor.

40. Ms Miladinovic had developed the Moose Card, which was valid for a calendar year. She had a preferred customer base of university college students and RMC and ADFA cadets. People in these categories were given a Moose Card without charge. Other customers not part of the target customer base could buy a card, which entitled them to the same privileges. About 75% of Moose Cards were given away and about 25% were sold.

41. Ms Miladinovic's evidence was that Mooseheads applied a cover charge on Saturday nights but not on other nights, including Thursday nights. On Thursday nights they had a lucky door prize, for which customers could buy a $2.00 ticket. The purchase of a ticket was optional. On Thursday nights there was a regular crowd, and a regular following for the lucky door prize. Information about the lucky door prize was made known to customers inside Mooseheads on the ground floor by a device described as a talking board. It was explained that this was similar to temporary electronic signs on motorways, with the writing moving or with messages alternating. Ms Miladinovic described this as an internal method of advertising Mooseheads's services to her preferred customer base.

42. She recalled reading an entry made by Mr Shaw in the incident report book during the day on Good Friday 2002, and telephoning Mr Shaw to talk about it. She described her recollection of the entry as "only a small recollection". She did not look at the incident book again. Asked to recall the words she had read, she answered "an incident that happened later on in the evening, of Thursday evening ... not Friday morning and the fact that the man hurt his hand with a glass on the dance floor and the incident happened to occur because his friend picked him up and dropped him, he came off balance." She agreed that there was a raffle on the night of the plaintiff's accident, and that this was an incentive for customers to come to Mooseheads. The idea was to get as many people upstairs as possible, up to the occupancy limit under their licence. The objective of Mooseheads was to make a profit through the sale of alcohol, and her aim was to sell as much alcohol as possible, within legal limits.

43. She was well aware of the problem arising from customers taking bottles and glasses on to the dance floor, and leaving them around the edges of the dance floor. She would sometimes pick them up off the floor herself. She agreed that the problem of glassware on the dance floor was the major reason for the employment of security staff to watch customers there.

44. There was a significant turnover of glasses. She explained that Mooseheads bought new glasses every week, and that it was unusual for a glass to last longer than four weeks. There were different kinds of glasses, including schooner beer glasses and smaller spirit glasses. She was always aware of what she described as product liability and this was a factor in buying the best glasses she could, and in particular glasses which broke safely into smaller pieces rather than into longer shards. She said that Mooseheads was spending about $3,000 a week on glasses at the time she gave evidence. Broken glass was always a problem, and even the safer glasses were capable of cutting people. Asked whether she could have put up a warning sign prohibiting glasses and bottles on the dance floor, she replied "obviously you've never been to Mooseheads". She agreed that she could have put such a notice on the talking board but did not. She had since asked herself why she had not thought of doing so. As to notices on the wall, she said that "nothing stays on the walls", by which I assumed that she meant that customers removed notices. She had, some years earlier, put up some notices recommended by the liquor licensing authorities, with an illustration of a bottle inside a circle with a line across it, but she found that the signs did not work.

45. Counsel for the plaintiff asked her how customers were meant to know that they were not permitted to take bottles or drinks onto the dance floor, if there were no signs. She replied:

OK we'll get back to the Card system. 75% of the people that are at Mooseheads are our regulars, there Thursday, Friday, Saturday, they are then used to what our rules and regulations are. They know what it costs to come in on Saturday night, they know we have a lottery, they know we have other principles in Mooseheads and that was a principle that they knew and they had security.

Asked how they knew it, she said "it's just something you know after a while". She was then asked how a person who walked in off the street and was not a regular would be expected to realise it. She replied that such people were addressed by security. She also explained that this was not a rule specific to Mooseheads, but an overall rule that such people "should know from other nightclubs". It was a rule that all liquor licensees had to comply with.

46. Ms Miladinovic agreed that Mooseheads used rope barriers on poles downstairs to channel queues. She was asked whether she could not have used such barriers around the dance floor so that there was a single entry point. She said that she had not considered that she had problems with drinks and bottles on the dance floor to such an extent as to justify such a system. She had considered that she had the problem under control with the use of security guards. She also thought that a rope barrier would not stop customers breaking the rule. She volunteered that she still had people trying to take glasses onto the dance floor, even with the new layout with waist-height walls around most of the dance floor, and that people passed drinks through to the dance floor all the time. She did not see it as a major problem: she had been trading for more than five years at the time of the plaintiff's accident and had not had an incident of a similar injury until then.

47. Ms Miladinovic was not at Mooseheads on the night of the accident.

48. The final witness was Ms Miladinovic's son Peter, who was employed as a glassie at Mooseheads, working on most Thursday nights. He worked upstairs, on the dance floor level. His job was to collect glasses with a view to keeping the club clean. His method was to walk about with a plastic bucket with a wire handle into which he would place dirty glasses. It was not unusual for a glass to break as he put it into the bucket. Other functions included mopping and collecting ashtrays. Glassies would alternate these functions, so that there were always two of them collecting glasses. Often the glasses were half full. He would tip the liquid into the bucket and then put the glass inside. A lap with the bucket would take about ten minutes, including the dance floor, the other areas and the toilets. He would carry a cloth and wipe down surfaces as he went. He paid particular attention to the dance floor, saying that glasses were not meant to be on it, but that people did sneak them on from time to time. There was also a mezzanine level, up a further flight of stairs, with no bar but a sitting area. As the glass collectors were doing their rounds, another staff member would be circulating with a mop, and they would keep each other informed of the whereabouts of empty glasses or of spillages. He explained that the glasses were frequently wet on the outside and that it was hard to avoid dropping a glass into the bucket, which might break a number of glasses. The important issue, they were told, was to keep glasses off the floor. He would then take his bucket to the bar area and place the rubbish into a bin while the clean glasses would be packed into a dishwasher by another member of the bar staff.

49. The mop was a wide mop which was used to absorb spilt liquids and also to sweep rubbish, including glasses, out of the way. On the dance floor, he would sweep any broken glass into a pile and then into a corner. He would then come back with a long-handled dustpan to collect the broken glass and other rubbish.

50. Peter Miladinovic usually started work between 7 pm and 11 pm, and continued until about 5.30 am, by which time the customers had left. He agreed that a lap by a glass collector was expected to be done every fifteen minutes, so that a glass might be on the dance floor for ten to fifteen minutes.

51. The disc jockey on duty on the night, Sean Branagan, was not called to give evidence. Counsel for the defendant explained that he had spoken to Mr Branagan and detailed the basic facts to him, including the competing versions of the accident. Mr Branagan had no recollection of the incident. This was accepted by counsel for the plaintiff. I accept that it is quite possible that Mr Branagan might have been temporarily away from his station at the time of the accident, or that he might have been looking in another direction changing discs or settings on his equipment. In the circumstances I draw no adverse inference from the fact that he did not give oral evidence.

52. None of the other staff on duty on the night were called. Counsel for the plaintiff did not ask me to draw any inference adverse to the defendant's case from their absence as witnesses.

Analysis of the evidence

53. I should say at the outset that I formed the impression that all of the witnesses who gave oral evidence answered the questions addressed to them honestly and to the best of their recollection. At first blush it might appear that the Court is confronted by two starkly opposed versions of the incident in which the plaintiff was injured, and that one of those versions must be true and the other false. Where witnesses give their evidence confidently, and will not concede in cross-examination that they may be mistaken about some aspects of their evidence, one can gain the impression that the evidence on one side must be true and on the other must be deliberately fabricated. It does not seem to me that this is the proper analysis in this case.

54. There are grounds for casting doubt on the evidence supporting both versions. In relation to the plaintiff's version, it can be said that he had had a lot to drink on the night, and that this must have affected his faculties at the time and his subsequent recollection of events. The same can be said, though to a lesser extent, of his companions. Additionally, one can point to factual differences between their accounts.

55. As to the latter, it would be surprising if their accounts tallied in every respect, as to events some three and a half years earlier: indeed, absolute consistency of accounts often causes suspicion that there has been a degree of reconstruction and collaboration. Although the plaintiff and his friends admitted to having discussed the incident amongst themselves at various times, the discrepancies go some way to persuading me that the evidence of each represents a personal recollection rather than some kind of partnership effort to tell a story calculated to assist the plaintiff's case. Whilst I must accept that the plaintiff and his friends were intoxicated to varying degrees at the time of the incident, I accept that the evidence of each of them conveys a genuine recollection of what happened.

56. It is a matter of great regret that, because of the fire, the Court does not have the benefit of the incident report completed by Mr Shaw on the night of the accident. It is common knowledge that memory can play tricks on one. We have all had the experience of remembering, apparently with precision, some incident or place, only to be later satisfied that the memory is in some major respect inaccurate. I have no doubt that Mr Shaw at some time saw an incident of the kind he described, where a customer picked another customer up and effectively dropped him to the floor. It may have been on the same night as the plaintiff's accident, or on some other night. But the memory is uncorroborated, other than indirectly by Ms Miladinovic, and is quite inconsistent with the memory of the plaintiff and his friends. Mr Shaw's version was put to each of them in cross-examination and they each denied it categorically. I have no doubt that it was a genuine memory for Mr Shaw subjectively, but, without intending any disrespect to him, I prefer the evidence of the plaintiff and his friends on that issue.

57. I accept that Mr Shaw made a note about the accident in the incident report book, and that Ms Miladinovic read the note the next day. She conceded that she did not look at it again before the book was destroyed in the fire. I cannot be satisfied that her recollection of what she read on that occasion is accurate. Mr Shaw is a truthful and reliable man and I would expect that she would be motivated to accept a statement from him in preference to statements from the plaintiff and his friends. After all, the plaintiff is claiming damages from her company and has much to gain if his story is accepted, whereas Mr Shaw no longer works for the company and, as he said in the witness box, has nothing to lose or gain from the outcome of the case. Hence it would be human nature for her recollection of what she read in the incident book to be coloured by her opinion as to Mr Shaw's reliability. In the absence of the incident report book, her evidence as to her recollection of an entry which she read once, three and a half years before she gave her evidence, is not enough to cause me to prefer Mr Shaw's evidence to that of the plaintiff and his friends.

58. There is one further matter which causes me to prefer the plaintiff's version to that of Mr Shaw. According to Mr Shaw, the plaintiff had just left the dance floor to get a drink, and was walking back on to the floor with his drink when the incident occurred. Mr Shaw has the plaintiff picked up by his friend into the air, then falling to the dance floor with the glass in his hand, the glass breaking on impact with the floor and cutting the plaintiff's hand. The plaintiff's uncontradicted evidence was that he was drinking schooners of beer all night. If Mr Shaw's version is correct, as the plaintiff fell he must have spilt the contents (about 400 to 450 ml) all over himself and the floor. One would have thought that such a spillage of beer would have been a significant feature of the fall and of an eyewitness's recollection of it. Mr Shaw mentioned nothing about a spillage of liquid and I had the impression from his evidence that his recollection was of an empty glass in the plaintiff's hand.

59. For those reasons I accept that the plaintiff's accident happened generally in the way he described in his evidence. I accept that he was bumped from behind by someone on the dance floor, causing him to lose his balance and fall. I think it more likely than not that his evidence, and that of Ms Blewitt, are correct to the extent that he did not have a glass in his hand at the time, but that his hand came into contact with an empty glass already on the floor as he fell.

60. As to the presence of glasses on the dance floor, whilst there is some difference in emphasis between the various witnesses, it is plain that it was commonplace for there to be glasses on the dance floor. I accept that it was Mr Shaw's job, and that of the other security officers, to prevent as far as possible customers taking drinks on to the dance floor in glasses or bottles or jugs, and that they did their best to enforce the policy. I also accept that the glass-collecting staff regularly made their way around the floor collecting glasses and other rubbish, and emptying ashtrays. It is clear from Ms Miladinovic's evidence that broken glasses were a neverending problem for the night club. Ms Miladinovic is patently conscious of her obligations under her liquor licence, even if she may not be aware in precise terms of the requirements of the applicable legislation. Her task, like that of most liquor licensees, is complicated by the competing demands of the liquor authorities on the one hand, and the necessity for the business to make a profit out of liquor sales on the other. I am satisfied that the system in operation at Mooseheads on the night of the accident represented a balancing of those competing forces.

61. There is also an issue of potential significance in relation to the scope of the defendant's duty of care to the plaintiff as a customer, about whether there was an entry fee or cover charge applicable on the night of the accident. The evidence of the defendant's witnesses is that there was never a cover charge on Thursday nights, and that there was no cover charge on the night in question, Easter Thursday 2002. It is common ground that there was no charge for entry to the ground floor of Mooseheads, and that when a cover charge was in operation, it applied only to entry to the upper levels.

62. The evidence of the plaintiff and his witnesses is that on the night in question there was a cover charge, which they understood to be reduced for them because they were Moose Card holders. The charge was collected by a staff member at the foot of the internal stairs, who gave them a stamp (I infer an inked rubber stamp applied to the back of the hand) and a raffle ticket. The fee they paid on the night was $2.00 or $3.00. I accept that the understanding of each of them was that they were required to pay the amount before being permitted to go upstairs. I accept that they were unaware of any details about the raffle, including details of any prize or prizes.

63. The evidence of Mr Shaw and Ms Miladinovic is that entry into the raffle was voluntary and that there was no entry charge. There was only one prize, a cash prize of $200, and the raffle was drawn at about midnight. They both say that details of the raffle were well known to Mooseheads' preferred customer base, that is RMC and ADFA cadets, and students from the residential colleges of the Australian National University. Indeed, the chance to win $200 for a two-dollar investment was, they say, seen by many in that group as an incentive to come to Mooseheads. This was the rationale for holding the raffle.

64. Both Mr Shaw and Ms Miladinovic say that a customer could have declined to enter the raffle, and would have been permitted to go upstairs to the dance floor and bar without fee.

65. There is no evidence that any customer ever declined to pay the fee at the foot of the stairs, whether it is to be seen as an entry fee or the price of a raffle ticket. There is no evidence that door staff were given any instructions about what to do in the event of a customer declining to pay the amount.

66. It is clear from Ms Miladinovic's evidence that she took the view that there were a number of customs as to behaviour in nightclubs which were well known to regular customers at Mooseheads, and which in her opinion should have been known to people of the demographic group attracted to Mooseheads, including the plaintiff and his friends. I am satisfied that she thought it unnecessary to spell out a number of what she regarded as the unwritten rules as to customer behaviour in nightclubs. She made this clear in relation to taking drinks on to the dance floor.

67. I am satisfied that Mooseheads customers such as the plaintiff and his friends were given to understand by Mooseheads staff that entry to the other levels was permitted only on payment of a fee on the night in question. I am satisfied that the management and staff at Mooseheads took no steps to inform customers that payment of the fee was optional. The defendant had a financial incentive to increase the amount collected by way of these payments, whether they are seen as entrance fees or raffle ticket prices. Ms Miladinovic attempted to convey the impression that all of the amounts collected were accumulated into the raffle prize for the night, but this is inconsistent with other evidence, which I accept, that the raffle prize was $200, so that any amounts collected in excess of that sum would represent profit to the defendant. Accordingly the defendant had a disincentive to inform customers that payment was optional. This to my mind provides an adequate explanation for their failure to do so, if indeed they did intend it to be optional.

68. My opinion about this aspect of the matter is reinforced by the evidence of the plaintiff and his friends about stamping on entry. I take notice of the fact that this is a technique commonly adopted at pay-for-entry venues as an alternative to issuing a pass-out to a customer who wishes to leave the venue temporarily and return later. If the amounts collected at the foot of the stairs were purely for raffle tickets and had nothing to do with entry, stamping would be quite unnecessary.

69. It follows from these findings of fact that the defendant represented to customers that entry to the upstairs level was available only on payment of a fee. The plaintiff and his friends accepted this representation in good faith, and paid their money on the night for entry.

Applicable legal principles

70. The authorities relating to the duty of care owed by the occupier of a licensed nightclub to a customer were usefully summarised by Connolly J when Master in Wood v Postnet Pty Ltd [2002] ACTSC 48. The starting point is that since Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, the differing tests which formerly applied depending upon the category of entrant in occupiers' liability cases have been subsumed within the ordinary principles of negligence. In brief, an occupier of premises is required to take reasonable care for the safety of persons entering the premises bearing in mind that what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" (Zaluzna at 488).

71. Notwithstanding this, it has been held in the Courts of Appeal of Victoria and New South Wales that this is not inconsistent with the principle articulated by McCardie J in Maclenan v Segar [1917] 2 KB 325 at 322:

...where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties, unless it provides to the contrary, contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.

72. Well before Zaluzna, this had been accepted in Australia as a correct statement of the principle: Watson v George [1953] HCA 41; (1953) 89 CLR 409 per Fullagar J at 424.

73. The principle was accepted as having continued application following Zaluzna by the NSW Court of Appeal in Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374 and subsequently by the Court of Appeal of the Supreme Court of Victoria in Downunder Rock Cafe Pty Ltd v Roberts [1998] VICSC 101.

74. In the present case, having regard to my findings of fact, it seems to me that the plaintiff should be taken to be a contractual entrant to the upper floor of Mooseheads where he suffered his injury, so that the scope of the duty of care owed to him by the defendant is at the higher Maclenan v Segar level.

75. It seems to me also relevant to the scope of the duty of care that the plaintiff entered the premises, to the knowledge of and with the encouragement of the defendant, for the purpose of consuming alcohol, the consumption of which would inevitably have the effect of impairing his faculties mentally and physically. In some circumstances a tortfeasor will owe no greater duty of care to a victim of the tort merely by reason of intoxication; and in certain circumstances the fact of the victim's intoxication may reduce the scope of the duty or remove it entirely. But the present case is in a different category, by reason of the interest of the defendant in selling alcohol to the plaintiff for consumption on the premises, on which it provided a dance floor and music. This aspect of the relationship, combined with the defendant's knowledge of the presence of glassware, including broken glass, on the dance floor, leads inevitably to the conclusion that a reasonable person in the position of the defendant would have foreseen that the conduct of its business involved a degree of risk of injury to customers in the position of the plaintiff.

76. This is not determinative of whether or not there was negligence. It is also necessary to ask whether the defendant's failure to eliminate the risk of injury showed a want of reasonable care for the plaintiff's safety: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 per McHugh J at 353.

77. The risk itself and the degree of the probability of its occurrence were both, it seems to me, high. I must balance them against the expense, difficulty and inconvenience of taking alleviating action, and also consider whether the system employed by the defendant to minimise the risk of injury should be seen as an adequate one, by analogy with the supermarket cases.

78. As Handley JA said in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports ¶81-104 (NSW Court of Appeal, 3 May 1991):

There can be no doubt that the law imposes a high duty of care on the occupiers of shops such as supermarkets to protect the public from the risks associated with the presence of material which has been spilled or dropped in areas used by the public. However the duty remains one of reasonable care. The occupier is not an insurer. As Mahoney JA said in Phillis v Daly (1988) 15 NSWLR 65 at 72:

The Court is required to identify what is the thing which the defendant should ... have done and to examine, in terms of reasonableness, the acceptability of it ... the test of reasonableness involves a value judgment. But, by framing the question in terms of what actually happened and what caused it to happen, this approach enables the court to focus upon what precisely it was that the defendant should ... have done and to judge that.

In my opinion an occupier cannot reasonably be expected to prevent material being dropped in areas being used by the public. Nor can an occupier be expected to remove material the instant it is dropped. What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material.

79. This passage is relied on by counsel for the defendant, who submits that the evidence establishes a reasonable system of collection of glasses and bottles, and mopping up of spillages, such that the defendant should not be found liable.

80. The Shoeys passage sums up in a familiar fashion the approach adopted by the courts to supermarket spillage cases. It is common knowledge that spillages happen from time to time in supermarkets. Sometimes the culprit is a staff member, more usually a customer. But although spillages happen often enough for supermarkets to be expected to have a system in place to deal with them, it seems to me that supermarket spillages are in a very different category to glasses on the dance floor at a nightclub. The nightclub sells overwhelmingly alcoholic drinks in glasses or bottles to its customers. The defendant's nightclub has a dance floor adjacent to the bar. The defendant has knowledge of the regular, almost continuous, presence of glasses and bottles, and also spilt drinks, on the surface of the dance floor. The presence of glasses and of spilt drinks on the surface of the dance floor seem to me a virtually inevitable concomitant of the conduct of the nightclub. In this regard a nightclub and a supermarket are at opposite ends of the spectrum. Relevantly for the present case, the point should also be made that supermarket customers are (to use pre-Zaluzna terminology) invitees. The plaintiff and his friends, for the reasons I have explained, were entrants pursuant to contract.

81. There has been no evidence as to the profitability of the defendant's business. Certainly the defendant has not suggested that there were financial constraints which would have prevented it from taking more effective steps to ensure that glasses did not find their way onto the surface of the dance floor, or if they did, that they were detected and removed immediately.

82. In summary, I am satisfied that the defendant's premises failed to meet the Maclenan v Segar test applicable to contractual entrants. The premises were not as safe for their purpose (drinking and dancing) as reasonable care and skill on the part of anyone could make them. There were steps available to the defendant which would have reduced the risk. These included more regular tours of the dance floor, if necessary by the employment of more staff, to detect and remove glasses more quickly; and the placement of rope barriers to direct customers to a single entry point on to the dance floor, so that security officers could more readily have determined whether they were carrying drinks, bottles or jugs; and the strategic placement of notices informing customers that taking drinks on to the dance floor was prohibited.

83. I am unable to make any finding as to how long the glass with which the plaintiff's hand made contact had been on the floor. It is enough to say that it may have been there for ten or even fifteen minutes. A period of that order may be perfectly adequate in a supermarket spillage context but is quite inadequate in the context of glass on a dance floor. The system of collection of glasses in these circumstances cannot avail the defendant.

84. I accordingly find that the defendant committed a breach of its duty of care to the plaintiff, causing him injury. Negligence is established.

Contributory negligence

85. The defendant pleads that the plaintiff was guilty of contributory negligence in failing to keep a proper lookout and failing to take adequate care for his own safety. As I have found, he was bumped, probably inadvertently, by another customer, and lost his footing and fell. He did not have glass in his hand as he fell. I am satisfied that there is nothing he could have done to avoid the accident. It follows that he was not guilty of contributory negligence.

Orders

86. The plaintiff having succeeded in relation to liability, there will be judgment for the plaintiff against the defendant for damages to be assessed. I shall hear the parties as to whether a costs order is sought at this stage of the proceedings, and as to appropriate directions for their future conduct.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 January 2007

Counsel for the plaintiff: Mr I D Bradfield

Solicitors for the plaintiff: Baker Deane & Nutt

Counsel for the defendant: Mr D C Morgan

Solicitors for the defendant: Eakin McCaffery Cox by their agents

Ken Cush & Associates

Date of hearing: 8, 9, 10, 11 August 2005

Date of judgment: 29 January 2007