Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29 (26 February 2009)

Last Updated: 27 February 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29


FILE NUMBER(S):
40024/08
40025/08

HEARING DATE(S):
30 September 2008, 1 October 2008

JUDGMENT DATE:
26 February 2009

PARTIES:
Adeels Palace - Appellant in both matters
Anthony Moubarak - Respondent in matter No. 40024/08
Antoin Fayez Bou Najem - Respondent in matter No 40025/08

JUDGMENT OF:
Beazley JA Giles JA Campbell JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 344/05, DC 4168/05

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
25 January 2008


COUNSEL:
J Sexton SC & M Gollan - Appellant in each matter
D Campbell SC & D Morgan - Respondent in matter No 40024/08
S Campbell SC, J Catsanos & J Raine - Respondent in matter No 40025/08

SOLICITORS:
Lee & Lyons Lawyers - Appellant in each matter
Leitch Hasson Dent - Respondent in matter No 40024/08
Sanford Legal, Burwood - Respondent in matter No 40025/08

CATCHWORDS:
Negligence - conduct of restaurant/nightclub - duty of care owed by proprietor to patrons - can extend to taking reasonable care to guard against injury from intoxicated, unruly or violent behaviour of other patrons - including criminal behaviour - depends on foreseeability of injury from the behaviour and control over it - on facts, duty of care was owed - on facts, was breached and was causation - desirability of discrimination in complaint of erroneous admission or rejection of evidence.

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 28;
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512;
Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222;
Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070;
Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91;
Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239;
Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447;
Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45;
Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155;
English v Rogers [2005] NSWCA 327;
Fraser v State Transport Authority (1985) 39 SASR 57;
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 29; (2002) 211 CLR 540;
Guildford Rugby League Football & Recreational Club Ltd v Coad [2001] NSWCA 139;
Hill v van Erp (1997) 188 CLR 159;
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298;
Kozjak v Fairfax Community Newspapers Ltd [2001] NSWCA 37;
Manly Council v Byrne [2004] NSWCA 123;
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254;
Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631;
Oxlade v Gosbridge Pty Ltd (NSWCA, 18 December 1988, unreported);
Pacific Access Pty Ltd v Davies [2001] NSWCA 218;
Payne v Parker (1976) 1 NSWLR 191;
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLRL 180;
Proprietors of SP 17226 v Drakulic [2002] NSWCA 381; (2002) 55 NSWLR 559;
Public Transport Corporation v Sartori (1997) 1 VR 168;
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330;
R v Abbas [2006] NSWCCA 331;
Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2;
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) NSWLR 113;
Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100;
TAB Ltd v Atlis [2004] NSWCA 322;
TAB Ltd v Beaman [2006] NSWCA 345;
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422;
Wagstaff v Halsem [2007] NSWCA 28; (2007) 69 NSWLR 1;
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

TEXTS CITED:


DECISION:
In each matter appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40024/08

CA 40025/08

DC 344/05

DC 4168/05

BEAZLEY JA

GILES JA

CAMPBELL JA

Thursday 26 February 2009

ADEELS PALACE PTY LTD v MOUBARAKADEELS PALACE PTY LTD v BOU NAJEM

Judgment

1 BEAZLEY JA: I agree with Giles JA.

2 GILES JA: The appellant conducted a business under the name Adeels Palace at premises at Punchbowl, the awning over the entrance to the premises describing it as “ Reception Restaurant”. It held a New Years Eve function at the premises on 31 December 2002-1 January 2003, attended by members of the public on payment of an admission price. In the early hours of 1 January 2003 a dispute on the dance floor escalated, and came to involve a fight between the respondent Mr Anthony Moubarak and a Mr Danny Abbas. Mr Abbas left the premises and returned with a gun. Mr Moubarak and the respondent Mr Antoin Bou Najem were shot.

3 The respondents brought proceedings against the appellant in the District Court, claiming damages for negligence or breach of contract.

4 Sorby DCJ held that the appellant was liable in negligence to the respondents and rejected its contention that Mr Moubarak had been contributorily negligent. His Honour held that the appellant owed the respondents “a general and wide duty ... to take care to avoid injuries caused by the unlawful actions of patrons (or invitees) on the premises during the course of the evening of 31.12.02 and early hours of 1.1.03”, and that the duty of care was breached because the appellant’s security arrangements at the time of the function were “far short of what reasonable care and skill required in all the circumstances”. He held that the inadequacy materially contributed to, and so caused, the injuries suffered by the respondents. He did not deal with the alternative basis of liability in contract.

5 Mr Bou Najem’s damages were agreed at $170,000, and Mr Moubarak’s damages were assessed at $1,026,682.98.

6 By its notices of appeal the appellant challenges duty of care, breach and causation. It also complains of the admission of parts of the reports of Mr Richard Jennings tendered by the respondents as expert evidence and the rejection of the report of Dr John McMahon tendered by it as expert evidence. It does not appeal in relation to the assessment of Mr Moubarak’s damages.

7 By notices of contention the respondents seek to uphold the judgments in their favour on the basis of a differently formulated duty of care or alternatively on the basis of liability in contract.
8 For the reasons which follow, in my opinion the challenges to duty of care, breach and causation fail, and there were no errors in the evidentiary rulings material to the result in the proceedings. It is not necessary to consider the notices of contention. The appeals should be dismissed.

The premises

9 The premises were within a building standing on the street alignment. From the photographs, double doors at the street entry led to stairs up to a landing, the stairs then turning and ascending to another landing and then turning again and ascending to an upper floor level where there were doors into a large room. Within the room there was a seating area for tables and chairs, a bar along the wall on one side of that area, and an adjacent dance floor and a stage in front of the dance floor. There was an opening to a kitchen at one end of the bar, and an office in one corner of the room.

10 As indicated by the bar, the premises were licensed. The licensee at the time was Mr Simon Bazouni, a director and the secretary of the appellant. His co-director was Mr Fouad Kouzi. The licence was an “on-licence (restaurant)”, permitting the service of alcohol together with food between 12 noon and 4 am. The licence stated a seating capacity of 295 persons for the premises.

11 An approval from Bankstown Council authorised the operation of the premises as a place of public entertainment, with a capacity of 283 persons, also between 12 noon and 4 am. Conditions attached to the approval, but it was not suggested that there was breach of the conditions material to the respondents’ proceedings.

12 While it operated as a restaurant, Adeels Palace was often referred to as a nightclub. In a police statement taken after the events at the New Years Eve function Mr Karim El Baz described it as “a nightclub and restaurant that serves Lebanese food”, to which he and his wife went every Saturday night sometimes with their daughters. Ms Olivia Baz described it as “a nightclub which caters for people of Arabic origin, you can get finger food there or you can order dinner”. Her parents went there every Saturday. Mr Moubarak had been going to Adeels Palace since he was a child, and as an adult went with friends and family sometimes on a Saturday night. He said he went without his family “when it was pretty much a nightclub and a restaurant then it turns pretty much a nightclub”.

13 On some occasions the premises were operated as a reception centre for weddings and christenings, and Mr Moubarak said that he had been there for birthday parties. Mr Kouzi said that there were also “community parties or concert; whatever”, but that most buck’s nights were refused.

The New Years Eve function

14 The function was attended by a large number of persons. The trial judge said that the exact number was not disclosed in evidence, but there were some estimates. Mr Bou Najem referred to 250 to 300 persons, although it is not clear whether this was his estimate or what someone told him about the capacity of the premises. Mr Moubarak estimated over 400 persons. Whatever the number, Mr Moubarak said that the premises were “packed out, people everywhere”, and Mr Bou Najem said the premises were full up with people sitting and standing.

15 Many family groups attended, with ages ranging from children to the elderly. There were a number of long tables, and the photographs in evidence show that the room was crowded with revellers. There were a band, singers and entertainers during the function. The bar was operating for the sale of alcoholic and non-alcoholic drinks, and waiters brought bottles to the tables.

16 The admission price was $60 per person, which included food but not alcohol. It was payable on entry at a desk on the first landing. Mr Moubarak said he was not given a receipt, Mr Bou Najem said that he was given a receipt, but there was no evidence of terms of entry or the conditions on a receipt.

17 Mr Moubarak arrived with his girlfriend at about 10.30 on the evening of 31 December 2002. There were other members of the public outside the premises, but no one he understood to be connected with Adeels Palace. He paid $120 at the desk, where two women were sitting. The women were not in uniform. He went up into the reception/restaurant room, and joined friends and family seated at a table.

18 Mr Moubarak knew the “owners”, Mr Kouzi and Mr Bazouni, and saw them in the room. Mr Kouzi came to his table to greet his father, himself and his family, and he saw Mr Bazouni seated at another table: they made eye contact and toasted each other from a distance. Apart from the “owners”, he saw only patrons.

19 At some time after midnight Mr Moubarak and his girlfriend went outside for some fresh air, and returned after about 20 minutes. The two women were no longer at the desk, nor was anyone apparently connected with Adeels Palace at the street entry doors or the entry to the reception/restaurant room. Mr Kouzi was the cook and spent his time in the kitchen, but he came back to join the Moubarak family at their table and was having a drink with them when the dispute on the dance floor began.

20 Mr Bou Najem gave evidence through an interpreter, and perhaps for that reason his oral evidence was less extensive that that of Mr Moubarak. He arrived at Adeels Palace at about 11 pm on 31 December 2002. He paid $60 to a woman at the desk on the landing and went in. He joined some friends at a table. He also knew Mr Kouzi, and saw him “everywhere with the people”, talking and celebrating.

The dispute and the shooting

21 At about 2.30 am on 1 January 2003 there was a dispute between a number of women on the dance floor. There were a lot of people on the dance floor – Mr El Baz estimated a hundred - and loud music. The occasion for the dispute is not particularly clear, and does not matter.

22 The participants in the dispute included Mr Moubarak’s sister, Layla (or Leila). To Mr Moubarak’s eyes, other women were attacking his sister and her friend, and he got up from the table where he was sitting, went to the dance floor, and took his sister back to the table. He said that he, his father and Mr Kouzi, “all got up at the same time” and that the three of them went to separate the disputants.

23 However, the dispute escalated. Mr Moubarak “heard more screaming then I started seeing people gathering in crowds, and I started seeing chairs getting thrown”. He “starting hearing things breaking, sounded like glass”.

24 From what was said in the police statements, quite a number of men were involved. It was an ugly scene. The statement of Ms Mansour spoke of Mr El Baz being knocked to the floor and kicked, and -

“11 I then moved back to our table which was located near the back exit door and I noticed about 20 or 30 males approach our table. One of the males in the group who I would describe as being of Lebanese appearance, in his late forties, grey hair, about 168 cms tall, slim build. He was wearing black pants and a grey top. I called the police on my mobile. He looked at me, pointed at me and me motioned with his finger across his throat as if to cut it and said, ‘Your dead.’ I felt very scared and intimidated by his actions. I said, ‘Fuck you’. He then started to run towards me. When he approached me I fell backwards and Olivia tried to stop him. I fell to the ground. He tried to grab me while I was on the floor. I kicked out with both feet and hit him but I don’t know where. I got up and some other males pushed him away. I saw a fight break out between about 20 males near the back exit door. The male that tried to grab me then went around a table and grabbed a bottle of Pepsi and threw it at me. It missed me and I ran away.

12 There were still fights going on amongst the 20 or so guys. I did not know any of them. A male who is one of the owners of the club approached us and set [sic], ‘Get out here.’ I left out the back exit and I saw some guys in a white car. It was dark and I don’t know what they looked like. The driver of the car said, ‘Hurry up and get out of here because there is going to be guns’.”

25 Mr Moubarak saw his father in a far corner attempting to calm things down, and went to get his father. On the way he felt a person grab his wrist. He pulled away, and the person “took a swing at me”. Mr Moubarak “punched him back”, striking him in the face. They exchanged punches two or three times. Mr Moubarak was distracted by a chair thrown at him, which he threw back. He saw the person with whom he had been trading punches leave “towards the exit”, with blood on his face.

26 The trial was conducted on the basis that the person was Mr Abbas, and I will hereafter refer to him by name.

27 Mr Moubarak returned to comfort his mother. He heard people screaming and more glass breaking. He and his mother went towards the kitchen. He heard someone scream out, “He’s got a gun”, and as they were walking into the kitchen he looked back and saw Mr Abbas – whom he recognised by “his size; his appearance; the blood on his face” – with a gun in his hand. Other people were running into the kitchen. Mr Moubarak left the kitchen. He heard gunshots in the kitchen. He took cover. He saw Mr Abbas come out of the kitchen, with the gun, and thought that Mr Abbas was looking for him. Mr Abbas pointed the gun at Mr Moubarak and shot him in the stomach.

28 The gunshots in the kitchen takes the narrative to Mr Bou Najem. He said that he became aware of something happening on the dance floor, and got up. He could hear people screaming and could “see things being thrown like chairs and plates”. He saw people running and they looked scared. He started to walk back to his table, and while he was doing so he heard someone yell, “Gun, gun, run away”. He went straight to the kitchen with a number of other people. He slipped and fell, and as he was getting up saw a man in front of him pointing a gun at him. The man had blood on his face. Again it was common ground that the man was Mr Abbas. He pleaded with Mr Abbas not to shoot him, saying “please, please, please don’t shoot me, I did not do anything, why do you want to shoot me”. Mr Abbas shot him in the leg.

29 The detail and span of events according to Mr Bou Najem differed from that according to Mr Moubarak, and understandably enough neither gave a full account of Mr Abbas’ movements. Mr Moubarak did not give evidence of Mr Abbas leaving the premises and returning, and Mr Bou Najem did not give evidence of Mr Abbas’ movements prior to the encounter in the kitchen. No other witness gave evidence of Mr Abbas leaving the premises and returning with a gun. However, some agreed facts at the trial included -

“8. During the function there was a physical altercation upon the defendant’s premises at about 2.30 am involving many patrons.

9. The altercation involved items of furniture and glassware being thrown.

10. During the altercation the plaintiff [Mr Moubarak] and a Mr Danny Abbas exchanged punches.

11. The altercation involved, inter alia, the plaintiff and a Mr Danny Abbas, and resulted in blows being exchanged.

12. Soon after the altercation Mr Danny Abbas exited Adeels Palace.

13. Having exited Adeels Palace Mr Abbas re-entered soon after.

14. Upon re-entering Adeels Palace Mr Bou Najem was shot by Mr Abbas.

15. Shortly after Mr Bou Najem was shot, Mr Moubarak was then shot by Mr Abbas.”

30 Mr Abbas was charged with offences arising out of these events. He was found guilty, but he successfully appealed and a new trial was ordered (see R v Abbas [2006] NSWCCA 331). The evidence included a letter stating that the Director of Public Prosecutions had directed that there be no further proceedings against him. The common basis remained that the assailant was Mr Abbas.

The security arrangements

31 Going first to security arrangements in general, the agreed facts included -

“7. At all material times a Mr Mohamed Zraika worked for Adeels Palace as licensed security staff.

...

17. Adeels Palace operated a system of closed circuit television cameras on the premises (10 cameras).”

32 There was no further evidence of the monitoring of the security cameras or their other use in the control of incidents at the premises, and it appears that they only recorded footage of locations within the premises. One of the expert’s reports described CCTV footage, said to be of very poor quality. The report included -

“5. Camera three seems to show a constant flow of persons into the club (up the stairs) and post incident, persons making their exit. It does seem to show a person entering at 1828 whom the Plaintiff has identified as ‘the shooter’ and three minutes later this suspect leaving the club again with others. Two minutes later he re-enters the club with friends and a few seconds later the Plaintiff enters the premises with his girlfriend.

6. At 1842 the suspect is seen to run out of the club and one minute later he re-enters again running up the stairs. As he runs up he is seen to be carrying an object in his hand and possibly trying to tuck it into his belt or pocket. This object could be a handgun but the tape quality is not good enough to be sure. At 1845 the suspect leaves the restaurant for the final time and one minute later the Plaintiff is carried out.”

33 Camera three was said to show the staircase down to the street entry doors. Even if the time on the footage be corrected to the early hours of 1 January 2003, the comings and goings within a few minutes are hard to reconcile with the other evidence. It was said later in the report that it is difficult to identify one individual from another.

34 The trial judge said -

“19 Tendered as part of both Plaintiffs’ case on liability was some very poor quality CCTV recording some of the events at Adeels Palace on 31.12.02 and early hours of 1.1.03. The footage was relevant on the question of security in that it showed that such cameras existed on the premises but as to whether they were intended to be preventative or merely provided a visual record of what had occurred in parts of Adeels Palace is not clear. Part of the tapes did show the assailant Mr Abbas leaving Adeels Palace after midnight with many others and returning a short time later. The CCTV tapes tendered, as far as could be seen, did not reveal the presence of security staff on that part of the video tendered.”

35 The CCTV footage was not played on appeal. What was shown on it does not seem to have been greatly relied on at the trial, and was not prominent on appeal.

36 Mr Zraika did not give evidence. Mr Kouzi agreed that Mr Zraika was “employed by Adeels to work at Adeels Palace”, although he was “not sure, whether there’s a contract or not” and said that Mr Bazouni dealt with security staff “most of the time”. Mr Bazouni did not give evidence. There was an astonishing nil return to a subpoena to the appellant requiring the production of documents which would have shed light on its engagement of security staff.

37 Mr Kouzi said, in general terms, that security staff were mainly present for every function, and that “security always at the door downstairs”. His evidence included -

Q. Obviously from your point of view as an owner you would accept that it was important to have security outside the doors at street level?

A. Yes.

Q. Because it was important to control who and in what circumstances could come onto the premises firstly?

A. Yes.

Q. And who left the premises secondly?

A. Yes.

Q. And with respect to those who left the premises, whether or not it was desirable for them to be able to return to the premises thirdly?

A. They wouldn’t have a clue if these coming back or not.

Q. If they’d been causing trouble, like the man you say you put out on the street -

A. Yes

Q. – whether they should be allowed back.

A. No.

Q. For example, if somebody had blood running down their face, having been involved in some kind of altercation, you would expect the security to take steps to prevent the return of such a person onto your premises?

A. True.”

38 Mr Moubarak did not recall seeing uniformed security guards when he went to the premises for weddings and christenings, but thought there had been security guards when he went for a drink with his friends. They had not been uniformed or wearing badges in the manner of other establishments he had been to. It may be that Mr Kouzi had in mind occasions other than weddings and christenings; in any event, he agreed that it was the practice on previous occasions when functions were to go through to 4 am “to have two solidly built security officers positioned on the street”. The reasons, he agreed, were to deter trouble makers from coming onto the premises, and to assist in the removal of troublemakers from the premises, and he added to look after the cars in the carpark.

39 Mr Kouzi said that there had been “one or two” incidents on earlier occasions, which he described as “just a couple of guys talking to each other and I just escorted one of them out”. Putting aside what seems to have been a euphemism, it is apparent that Mr Kouzi rather than security staff attended to the incidents. However, he was the cook and, apart from “meeting and greeting”, spent his time in the kitchen; he was not a substitute for security staff if security staff were required.

40 Turning to the particular New Years Eve function, the evidence included a letter from the appellant’s solicitors responding to a letter from Mr Moubarak’s solicitors requesting particulars of its defence. The letters were tendered in the respondents’ cases. The questions and their answers were -

1. Q. If it is asserted that the Defendant had security guards, how many guards is it asserted that the Defendant had on the premises?A. There were at least two security guards retained by the Defendant on the evening your client was allegedly injured. In addition, the proprietors of the business actively participated in the performance of security work on the premises.

2. Q. What were their designated duties?A. Generally speaking, both guards were assigned to the front door during the early part of the evening. Thereafter, 1 guard was directed upstairs to monitor the patrons whilst the other remained at the front door for the purpose of ensuring unwanted patrons did not come inside.

3. Q. Did they eject the perpetrator of the act?A. Unknown.

4. Q. If so, how was it that he was allowed to return to the premises?A. Unknown.

5. Q. What steps were taken by the Defendant to exclude patrons who had been ejected?A. Ensuring that ejected patrons were refused entry to the Defendant’s premises was the responsibility of the security guards.

6. Q. What was the Defendant’s policy in relation to ejected patrons?A. Generally speaking, a patron ejected from the premises was not allowed to re-enter.

7. Q. Did the Defendant at all times have staff securing the door, noting that it was New Years Eve?A. See above.

41 The trial judge found that “on the evening of 31.12.02 and early hours of 1.1.03 there were no security staff present at Adeels Palace” (at [52]). This finding was not challenged on appeal. An expert’s report tendered by the appellant referred, presumably on instructions, to it being unfortunate that “an incident during trading resulted in the licensed crowd controller withdrawing from work”. From the balance of the report, this seems to have been a reference to Mr Zraika, but was not borne out in the evidence.

42 The respondents relied on the letters, and other evidence of the general presence of security staff, as evidence that security arrangements of the kind stated in the particulars were recognised by the appellant as necessary for the New Years Eve function.

Prior incidents

43 There had been New Years Eve functions on a regular basis, every year. Mr Kouzi did not recall any “problems in terms of crowd violence or any other disturbance” at prior functions. He said that there had been “a few incidents” at Adeels Palace, although he could not recall whether anyone had been seriously injured. No incident book was kept.

44 The respondents tendered COPS reports, of which the trial judge said -

18 ... These records reveal that Adeels Palace and environs had been the focus of police attention because of reported violence. These reported events occurred on 12.12.98, 17.1.99, 31.7.99, 20.2.2000 and 1.1.02.”

45 The reports recorded eight incidents over the period December 1998 – April 2000. They amounted to the following.

· At about 3 am on 13 December 1998 three persons “at the location for a function” were “involved in a brawl with other patrons unknown to them”. They did not want police action but “wanted to take civil action against security guards for taking no action”.

· At about 4 am on 17 January 1999 a person was drinking at Adeels Palace with colleagues, and -

“Two Lebanese males approached the table that the victim and friends were at. One of the POI’s started to abuse one of the victims friends in Lebanese.

The victim has then told POI 1 to relax and the POI has said, ‘What, do you want a bullet in your head?’ POI 1 has then started to punch the victim numerous times to the face and body. POI 2 has also punched the victim during the fight.

Security staff from the club have attempted to break up the fight and the victim has then left the club.”

· At about 12.30 am on 1 August 1999 a man who had been at a bucks party at Adeels Palace left the function and while on the footpath outside the premises took a pistol from an ankle holster and fired two shots into the air. He and others with him went back inside. This was reported by “security of Adel’s [sic] Palace”. The police attended. When the man and others came out to board a hired bus, the man tried to hide the pistol and holster, but it was found. He told the police he was “just being a dickhead”. He was not licenced to hold the pistol. The reports included “premises has intel for firearms”, but this was not explained.

· At about 1.30 am on 20 January 2000 a “brawl” broke out within Adeels Palace. One of the reports recorded “riot occurring – chairs being used as weapons”, and another that “[d]uring the fight one of the owners of the restaurant has received five centimetre cut to his head”. The fight “spilled out onto the street”, and one of the men produced a pistol and fired three shots into the air. The police believed that this was not a shooting attack but “an attempt to make persons in the area panic whilst fleeing the club after the attack”.

· A report for 6 March 2000 was concerned with a licensed premises inspection. It was noted that the security officer was not displaying his security licence as required. The report was otherwise concerned with a suspected illegal immigrant.

· A report for 10 March 2000 was also concerned with a licensed premises inspection. The security guard, identified as Mr Zraika, was not wearing his licence. Two other persons were found “standing on either side of the doorway acting as security guards”. They were unlicensed and one was an illegal immigrant.

· At about 2.20 am on 7 May 2000 a patron went outside, saw two men leaning on his cousin’s car, and told them not to do so. He was later told by a security guard “not to go down stairs as there were a number of people down there and that him and his cousins should not go down there as there might be a fight”. It was later found that someone had kicked and damaged “his” car.

· At about 9 pm on 4 April 2000 shots were fired outside Adeels Palace, and it was later found by a person who had parked his car at the location that it had two gunshot holes.

46 As to the particular New Years Eve function, Mr Kouzi agreed that in the early hours of 1 January 2003, a good deal of time before the shooting, the police attended at the premises in relation to a complaint “concerning behaviour of some patrons at your premises”. He said that he was called out from the kitchen and “escorted the bloke – that he was making the argument – out and I have said that prior to this.” This may have been the occasion earlier mentioned, although at that point in his evidence Mr Kouzi does not seem to have been referring to this New Years Eve function.

47 Mr Moubarak did not recall an earlier incident at the particular function. COPS reports recorded an anonymous call to the police at 1.43 am on 1 January 2003 reporting a “large brawl” with “20 males fighting” at Adeels Palace, and that when the police attended they found no-one fighting and “persons were dispersed by PO”. Another report at 1.44 am was of 20 people in the street “after a party making a noise”. This incident, whatever it was, appears to have been in the street, and its connection with what Mr Kouzi spoke of is unclear, but there was some connection with the premises.

The expert evidence

48 The respondents relied on three reports of Mr Jennings, a licensed security consultant. The appellant relied on a report of Mr Tony Zalewski, experienced in public safety, security and related areas. The report of Mr Zalewski responded to Mr Jennings’ reports. The reports were lengthy, and as I have indicated there was complaint as to the admission of parts of Mr Jennings’ reports. In addition, the appellant sought to rely on the report of Dr McMahon, a clinical psychologist, and complained on appeal that the judge had rejected the tender of that report.

49 The most convenient course is to set out from the trial judge’s reasons the passages he extracted from the reports of Messrs Jennings and Zalewski when coming to his finding of breach of duty.

50 The extraction was -

“54 Both the Plaintiffs and the Defendant called experts. For the Plaintiffs, Mr Richard Jennings, a licensed security consultant was called and his reports tendered [Ex P]. In his first report of 5.10.04 at p 10 Mr Jennings said:

‘The most common duties designated for security officers at restaurant/nightclub type premises in 2002/3, would most commonly include:

· One or more officers standing at the entry door checking the age, sobriety, dress conformity, behaviour and demeanour of person attempting to enter the premises (as per the Liquor Act and Responsible Service of Alcohol regulations).

· One or more officers in the immediate vicinity of the dance floor, where they may be capable of intervening in any potentially confrontational behaviour before it may escalate into a major problem.

· One or more officers patrolling the licensed area generally monitoring any anti-social behaviour or actions contravening the Liquor Act or other regulation. This includes checking utility areas such as toilets to prevent drug trafficking or other problems in these secluded spots.’

55. The exact number of patrons at Adeels Palace on 31.12.02 is not in evidence but I have accepted the evidence of both Plaintiffs that the premises was at full capacity, whatever the actual number might be. Mr Jennings bases his conclusion as to the actual number of security staff required at a function such as at Adeels Palace on 31.12.03, on information supplied by his solicitors, including the figure of 400 as to the number of persons Mr Moubarak estimated were at the function. He said at p 11 of his report:

‘The evidence before me at this time indicates that the restaurant had just one security officer on duty that night (as was allegedly their common practice on Saturday nights). If as alleged, there were 300-400 persons present in the restaurant/nightclub, then I cannot conceive of how one officer could possibly carry out all of the preventative and security intervention procedures which would be required of this number of patrons.’

He said further at p 12:

‘Based upon what I know of the restaurant’s operations on New Year’s even I would consider that they should have had at least six and possibly up to eight security officers on duty that night. The one or more on the door should have been carrying out a cursory search of all patrons entering aided by some sort of hand held metal detector to ensure firearms did not get in. There should have been at least three closely watching the dance floor depending upon how many person [sic] were on the floor at any one time but in such a position as to quickly see the first signs (verbal or physical) of a problem on that dance floor and being able to intervene within seconds to prevent escalation. Other security officers should have been checking the bar, toilets and other areas of the premises for problems. All of these officers should have been fully licensed under the Act and trained appropriately in the security of licensed premises. Written instructions should have existed which laid down their duties and responsibilities.’

In his report of 27.9.07 at paragraph 13 Mr Jennings said:

’13. With a proper security system in place, implemented by sufficient numbers of licensed security officers, then the person who eventually shot the Plaintiff should not have been permitted to leave and re-enter the venue, certainly without being thoroughly searched upon both entries. It appears as though this attacker left the venue specifically to get the gun, most likely from his car, and under these circumstances would not have been allowed to re-enter with that gun, if properly searched. It is alleged that this attacker had been involved in a fist fight with the Plaintiff and/or other patrons before he went out to get the gun and if there had been an effective security presence, this fact would have been noted and most likely the attacker been ejected without any chance of re-entry that evening.”

56. The Defendant’s expert was Mr Tony Zalewski. He said in his report [Ex 6] at paragraph 12:

’12.1 A clear understanding between the venue and the security provider about its security arrangements. This generally involves a plan as to the duties to be performed by security personnel and the timing of performance of their duties. Although it is preferred such an arrangement is documented common industry practice is often informal and orally based. This does not mean the system is flawed, especially when the arrangement involves one or two staff rather than a formalised team;12.2 A plan to reduce the potential for incidents occurring in or around the venue including access control and managing incidents of intoxication or violence. Such an approach would typically involve alcohol service strategies; monitoring and supervision of patrons; a hierarchy of control involving responsible staff and management; a venue communication strategy, and liaison policy with external agencies including the police;12.3 Engaging and training staff with an ability to fully comply with the plan. Such training should include operational awareness, responsibilities of key stakeholders such as management and a range of preventative and reactive strategies.12.4 Planning and training for intervention when a problem or potential problem is identified to ensure minimal disruption to the environment and limiting the potential for injury to those who may be present or involved; and12.5 Ensuring staff are able to react appropriately during and after an incident to minimise the impact of an incident upon individuals or the venue operation.

He was asked at paragraph 37:

’37 Question 8 – what in your experience is the probability that six or eight security guards could control a fight which escalated within seconds from several women to fifty or more patrons throwing furniture and bottles?Had there been six or eight security staff immediately present and able to respond appropriately at the initial stages it is possible that parties/individuals in conflict might have been separated and the incident controlled. However, this is also contingent upon:

· The personnel being immediately present;

· The personnel are able to identify relevant persons in conflict;

· Are able to control those persons from a further escalation;

· Are able to prevent additional persons entering the melee; and

· Were in proximate location to work as a team rather than individuals.’ (emphasis added)

He further stated at paragraph 39 -

’39 My experience is that an escalation in these circumstances is very difficult to control irrespective of the numbers involved. In particular, those associated or related to active participants inevitably become involved, as either willing or unwilling participants. Many of these participants will try to defuse others however, this just becomes more confusing and generally results in fresh outbreaks as the conflicts snowball.’

Mr Zalewski concluded:

’55 In my opinion, the system of security explained for this venue was not inappropriate for a restaurant and function centre. The venue operators had thought through their general security needs including managing conflicts on the upper level, instructing staff about intoxication and employing the services of security staff for access control purposes at the point of entry from ground level. The fact an incident occurred that escalated is not something the venue could have reasonably foreseen in the circumstances. It certainly was not an incident that typically arose in the venue, especially within the period of about two years previously. There had also not been a previous incident of violence reported during New Years Eve celebrations.56 It is unfortunate an incident earlier during trading resulted in the licensed crowd controller withdrawing from work. This is not common and it would have been very difficult to engage the services of a replacement on such a busy night.’ (emphasis added)”

51 His Honour also referred at [58] to Mr Zalewski’s agreement in his oral evidence “on the need for ‘access controls’ as the ‘front line of defence’ the latter having the purpose of discouraging at least, if not preventing, the return of unruly or troublesome patrons who has [sic] left the premises”.

52 Two page references were given for Mr Zalewski’s agreement in his oral evidence. The evidence at the first of the pages was, in summary, his agreement that one of the purposes of having “two prominent persons on a door” would be to discourage a person trying to return, that if satisfied that a patron who had been in an altercation was the aggressor action would be taken to remove him from the premises, and -

“Q. Having had him leave the premises with blood on his face, you would be particularly astute to do your best to prevent him coming back, wouldn’t you?A. If the circumstances warranted and allowed you to do that, yes.”

53 Mr Zalewski also agreed that it would be desirable to have staff “at the point of entrance and exit and also positioned at the spot where the patrons are participating in the event that is being conducted”. The evidence at the second of the pages to which the trial judge referred took this up, and was -

“Q. In any event, you would regard it as having been good practice for someone to have been so placed?A. Yes, it is good practice.HIS HONOUR: Q. To minimise risks?A. Yes.Q. Minimising risks also incorporates the concept of the deterrence if you’ve got somebody on the door?A. It can. Yes.”

Duty of care

54 The trial judge set out the competing submissions at length. They revolved around Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 and whether it precluded recognition of a duty to take reasonable steps to prevent injury from violent, as distinct from intoxicated, patrons on licensed premises. However, his Honour did not conclude that the appellant owed the duty of care to the respondents by analysis or application of the decisions to which he was referred. His Honour said only -

“44 The general determinant of the existence of a duty of care is proximity which has been said to be a ‘broad and flexible touchstone’ (Cook v Cook [1986] HCA 73; (1986) 162 CLR 376). In my view the duty arises in the Plaintiff’s case because the Plaintiffs were both invitees and contractual entrants to a licensed premises thus satisfying the proximity test and the Defendant owed a general and wide duty to the Plaintiffs to take care to avoid injuries caused by the unlawful actions of patrons (or invitees) on the premises during the course of the evening of 31.12.02 and early hours of 1.1.03.”

55 At least since Hill v van Erp (1997) 188 CLR 159 proximity has not been a determinant of the existence of a duty of care, even in cases of personal injury as distinct from economic loss: see for example Hill v van Erp at 177-8 per Dawson J, 188-9 per Toohey J, 210-11 per McHugh J and 237-9 per Gummow J; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 at [238] per Kirby J; Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 at [27] per Gaudron J and [70]-[74] per McHugh J. McHugh J said in the lastmentioned case at [74] that “[t]he reason that proximity can not be the touchstone of a duty of care is that it ‘is a category of indeterminate reference par excellence’.” With respect, the trial judge’s reasoning is not consistent with current jurisprudence.

56 The appellant’s submissions on appeal, as at the trial, were founded on Modbury Triangle Shopping Centre Pty Ltd v Anzil, from which was taken the principle that the occupier of premises does not owe a duty of care in relation to the criminal conduct of third parties. It was submitted that, although an exception to this general principle had been recognised in the case of occupiers of licensed premises in cases such as Wagstaff v Haslem [2007] NSWCA 28; (2007) 69 NSWLR 1 and Collingwood Hotel Pty Ltd v O’Reilly [2007] NSWCA 155, there was no reason why the mere fact that the premises were licensed premises should bring a duty of care extending to guarding against the criminal conduct of third parties; for example, in the case of a small licensed café, or even in the case of a large number of patrons enjoying the facilities until a late hour (the example given was a legal Bench and Bar dinner, although that involved assumptions which need not be explored). The submissions did not draw the distinction which appears to have been drawn at trial between injury from intoxicated patrons and injury from violent patrons.

57 The appellant submitted “formally” that decisions of intermediate appellate courts in Australia which had held that an occupier of licensed premises over a duty of care in relation to the prevention of violent criminal acts by one patron against another were inconsistent with Modbury Triangle Shopping Centre Pty Ltd v Anzil and wrongly decided. It said that cases where such a duty of care had been recognised depended upon actual or constructive knowledge of the dangerous propensities of a particular person or group of persons, and did not support a duty of care “prophylactically [to] provide dedicated security personnel against the possibility that there may be violent behaviour”.

58 The respondents submitted that Modbury Triangle Shopping Centre Pty Ltd v Anzil was a very different case, and that the present case fell within the recognised exception. They said that intoxication or actual or constructive knowledge of propensity for violent behaviour before the duty of care arose was “a stricture not discernable from any authority”, and that “it is the general nature of the activities being conducted on the premises and the element of control which gives rise to the duty”.

59 The difference between the parties was in part one of law and in part factual. The appellant’s position was that there could not be the duty of care unless there was knowledge of risk from a particular patron or group of patrons, and that there was no knowledge sufficient for that requirement at least until the fight between Mr Abbas and Mr Moubarak. The respondents’ position was that more general knowledge of a risk of violence from a patron or patrons, coupled with control over the violence occurring or leading to injury, could give rise to the duty of care, and that there was knowledge sufficient for that requirement.

60 There was a flow-on from the competing positions to the questions of breach and causation. The respondents’ case was that there should have been security staff who or whose presence would have controlled the dispute on the dance floor and re-entry by Mr Abbas, and so prevented the shootings. It was not clear that the appellant accepted that it owed duty of care in relation to the conduct of Mr Abbas from the time of the fight between him and Mr Moubarak, but it said that no duty of care called for prophylactic security staff and that the dispute escalated so quickly, and the shootings were so unexpected, that (security staff being out of consideration) there was nothing it should or could reasonably have done which would have prevented the shootings. The difference came down to one over a duty of care whereby security staff should have been present from the beginning of the function.

61 That does not mean that the question is whether there was a duty to have security staff present from the beginning of the function. A duty of care is not properly stated so specifically, see for example Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [309]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 29; (2002) 211 CLR 540 at [106]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [20]- [22] and [118]-[119; and particularly the discussion by Kirby J in Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 at [50]. To do so, to adapt the words of McHugh J in Graham Barclay Oysters Pty Ltd v Ryan at [106], “invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred)”.

62 The duty of care, if extending to taking reasonable care to guard against injury to persons in the position of the respondents from the criminal conduct of third parties, was a duty to take reasonable care in the circumstances. Whether security staff should have been present from the beginning of the function went to breach – was that the reasonable response according to the balancing described in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40? As was said by McHugh J in Vairy v Wyong Shire Council at [26], in relation to motorist’s duty of care -

“ ... the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence.”

63 The appellant’s submissions may have accepted that the duty of care arose when the fight broke out between Mr Abbas and Mr Moubarak. This led the respondents to submit at one point that, upon knowledge of “either impending trouble or trouble which might escalate”, the duty of care recognised in cases such as Wagstaff v Haslem “descends and is activated”. They said that in the present case the duty of care descended “no later than the altercation between the women” but, in response to a question from the Court, “no earlier ... than the earlier trouble during the night”.

64 These submissions departed from correct principle, and were not consistent with the respondents’ submissions in other respects. The appellant owed a duty of care to the patrons at Adeels Palace, at least as occupier. If it owed a duty to take reasonable care to protect patrons not only in relation to the physical state or condition of the premises, but also in relation to the criminal conduct of another patron or other patrons, the duty of care in the latter respect was owed at all times the patrons were on the premises in the same way as the occupier’s duty of care in relation to the physical state or condition of the premises was owed at all times the patrons were on the premises. The occupier’s duty of care did not spring up when a dangerous defect in the condition of the of the premises came about in the course of a function, nor if there were the further duty of care did it spring up when a fight presenting risk of injury to the patrons broke out. In either event there may have sprung up occasion to do something in discharge of the duty of care, but that is another matter.

65 In Modbury Triangle Shopping Centre Pty Ltd v Anzil the plaintiff was attacked and badly injured while walking to his car in the outdoor carpark of a suburban shopping centre. It was accepted that the defendant owed a duty of care to persons lawfully upon its premises, but it was held that the duty of care did not extend to taking reasonable care to protect persons in the position of the plaintiff from the criminal conduct of third parties. The essential basis of the holding was that the common law does not ordinarily impose liability for omissions, and that the knowledge and control which form the basis of an occupier’s liability in relation to the physical state or condition of land and which take the liability beyond liability for an omission are not present when the possibility of criminal behaviour on the land by a stranger is involved. Absence of control over the third party’s criminal conduct was at the heart of the decision, see at [29] per Gleeson CJ; [43] per Gaudron J; [108]-[114] per Hayne J.

66 However, it was recognised that there could be a duty to take reasonable care to prevent harm from the criminal conduct of a third party. Gleeson CJ referred at [30] to foreseeability of harm “attended by ... a high degree of foreseeability, and predictability”, referring to “[t]he possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct could arguably give rise to an exceptional duty”. His Honour said at [34] that it was unnecessary to express a concluded opinion. Hayne J said -

“117 Established principle provides the answer to the present problem because it reveals that there is no duty to control the criminal conduct of others except in very restricted circumstances. Being an occupier of land should not be added to those exceptional cases, at least where the complaint that is made by the plaintiff is not about the occupier failing to control access to or continued presence on the premises. I would wish to reserve for consideration in a case in which they are raised the questions that are presented by a complaint of that last kind. Further, like Gleeson CJ, I would wish to leave open for consideration the appropriate approach in cases where an occupier has a high degree of certainty that harm will follow from lack of action.” (citations omitted)

67 The cases cited for the possible qualification concerning the occupier failing to control access to or to continued presence on the premises were Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91 and Public Transport Corporation v Sartori (1997) 1 VR 168. In the first of these cases it was accepted that a hotel owner had a duty to take reasonable steps to protect a patron from the foreseeable risk of injury from the acts of another patron who was well affected by liquor, but it was held that there was no breach of duty because the other patron was not causing trouble or known to cause trouble or be aggressive in drink. In the second of these cases it was held that an employer’s obligation to provide a safe system of work extended to the safety of an employee, expected to use late at night an employee carpark which the employer had sought to make secure, who was injured by a trespasser when the gate was not properly locked.

68 There have been a number of other employee cases, before Modbury Triangle Shopping Centre Pty Ltd v Anzil (Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070; Fraser v State Transport Authority (1985) 39 SASR 57) and afterwards (Kozjak v Fairfax Community Newspapers Ltd [2001] NSWCA 37; Pacific Access Pty Ltd v Davies [2001] NSWCA 218; Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 28; Cheng Fung Pty Ltd v Heloui [2005] NSWCA 222; Coca Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45; TAB Ltd v Beaman [2006] NSWCA 345). These cases have been applied to recovery by a cleaner from both his employer and the hotel he was required to clean when thieves held him up, treating the cleaner as in a relationship with the hotel akin to employment (English v Rogers [2005] NSWCA 327). They may be put aside, as the relationship of employer and employee brings special considerations.

69 There have also been a number of hotel or club cases, after Modbury Triangle Shopping Centre Pty Ltd v Anzil, recognising a duty of care to the effect of that accepted in Chordas v Bryant (Wellington) Pty Ltd. An early such case was Guildford Rugby League Football & Recreational Club Ltd v Coad [2001] NSWCA 139, in which it was held by Ipp JA, Rolfe AJA agreeing, that the club was in breach of the duty of care owed to a patron by failing to employ security guards on the particular evening. The duty of care was, however, conceded by the club, based on Chordas v Bryant (Wellington) Pty Ltd and the earlier decision of this Court in Oxlade v Gosbridge Pty Ltd (18 December 1988, unreported).

70 In Wagstaff v Haslem the plaintiff’s husband was assaulted by a fellow patron of a hotel and she was punched by the patron when she went to her husband’s aid. Basten JA, with whom Santow and Bryson JJA relevantly agreed, observed with reference to Modbury Triangle Shopping Centre Pty Ltd v Anzil that the basis of the duty said to be owed to her “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]). Public Transport Corporation v Sartori was regarded as resting on the relationship of employer and employee (at [27]). Chordas v Bryant (Wellington) Pty Ltd was apparently accepted (at [29]-[30]), and it was noted that it had been applied in this Court in Oxlade v Gosbridge Pty Ltd on the basis that the hotel manager knew of facts requiring intervention in order to protect other patrons (at [32]). His Honour said (at [39]) that the duty of care might 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.”

71 In the subsequent hotel case of Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100 a licensee’s “duty of care owed to patrons in relation to the risks of violent behaviour of other patrons” was recognised, referring to Chordas v Bryant (Wellington) Pty Ltd and other cases; it was firmly tied to control, as distinct from a “special relationship” (at [49]-[50], [55] per Basten JA, with whom Beazley JA agreed and McColl JA agreed with a presently irrelevant reservation). In relation to control, Basten JA said at [50] -

“ ... First, it is clear from the authorities which have upheld the existence of a duty of care owed by a licensee to patrons that that conclusion depends not on the existence of a “special relationship” recognised by law, but on the element of control. Although the Liquor Act 1982 does not impose a statutory duty of care on licensees, enforceable by patrons, by conferring a power of control and an obligation to exercise that power, the statute provides the basis for a finding with respect to control, which in turn attracts the common law duty of care and informs its content. The relevant statutory provisions may be found in s 2A of the Liquor Act which identifies 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)”, in combination with s 103(1) which empowers a licensee or an employee of a licensee to “turn out, or cause to be turned out of the licensed premises”, any person who is intoxicated. The section authorises the use of “such reasonable degree of force as may be necessary” to turn a person out: s 103(3A). In addition, s 125 of the Liquor Act provides:

‘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’.”

72 In Collingwood Hotel Pty Ltd v O’Reilly Basten JA again delivered the principal judgment. His Honour said -

“21 The Appellants accepted that the relevant principles governing their potential liability in negligence for the deliberate acts of third parties were those explained by this Court in Wagstaff v Haslam and Anor [2007] NSWCA 28 and in Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, applying, amongst other cases, Chordas v Bryant (Wellington) Pty Ltd [1988] FCA 462; (1988) 20 FCR 91 (FCAFC). These cases held that someone in the position of a hotel manager or licensee may be liable for injury to a patron caused by the deliberate and unlawful act of another patron. The duty which gives rise to this liability depends upon the capacity, and indeed the statutory obligation, of the hotel manager or licensee to control conduct on licensed premises, pursuant to ss 103 and 125 of the Liquor Act 1982 (NSW). These provisions not only permit the licensee to “turn out, or cause to be turned out” any person who is intoxicated, and to use reasonable force to that end, but also impose an obligation on a licensee not to permit intoxication on licensed premises, an offence which is deemed to be committed by the presence of a person who is intoxicated on the premises, unless the licensee has asked the person to leave the premises, sought police assistance to remove the person and refused to serve the person alcohol: s 125. As will be seen shortly, there was a complaint that the relevant employee of the hotel believed that a number of patrons were sufficiently affected by alcohol to justify refusal of service, yet no steps were taken to eject those persons from the premises, until the relevant outbreaks of violence. However, it should be emphasised there is no statutory cause of action for breach of the Liquor Act, if such a breach occurred. Rather, the relevant duty to exercise reasonable care for the safety of patrons, depends upon proof that the hotel manager or licensee knew or ought to have known facts requiring intervention to protect patrons and, in those circumstances, failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm: see, generally, Wagstaff [2007] NSWCA 28 at [28]- [37].”

73 One of the cases to which Basten JA referred in Spedding v Nobles was Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447, where the plaintiff was a police officer injured in a brawl at a club on the occasion of a debutante ball. It was said in that case that the facts “bear no resemblance to those in Modbury Triangle Shopping Centre Pty Ltd v Anzil” (at [34]), and that the assailant was allowed to misbehave “when he should have been kept under control by the club which had invited him onto its premises and allowed him to remain there for the purposes of its business” (at [36]). The duty of care was found as follows -

“[36] Quite apart from what the expert and other evidence disclosed in this case, it is a matter of common sense and experience that, where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time, there is a danger of drunkenness and violent and other offensive behaviour. There is a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate. What the club was really doing here was, in the course of its business, creating a potentially dangerous situation on its own premises, as it recognised, even before the night began, by its engagement of five crowd controllers. Crowd controllers are there to control crowds;5 they are there because of the danger that things will get out of control, notably, one might add, in relation to physical violence. As the regulations already referred to show, one of the functions of the crowd controller — again this is only a matter of common sense and common experience — is to assist in maintaining order by removing disorderly persons from premises. Persons in the position of the club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty — we are not here concerned with rights of action for breach of a statutory duty — to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises.

[37] It is difficult to imagine a greater contrast between the facts of the present case and those of Modbury. The club concedes that it owed a duty of care to patrons to protect them against attacks by other patrons on the premises and that if the plaintiff in the car park here had been, not a member of the police force, but a patron, then no question would have arisen about the existence of a duty of care in relation to the kind of harm done. In our opinion a duty of care was owed to the plaintiff.” (citation omitted)

74 The duty of care in the hotel and club cases has been held to arise from the combined position that the manager or licensee “knew or ought to have known facts requiring intervention to protect patrons” and had “the capacity ... to control conduct on licensed premises”, taking these phrases from the passage last cited from Collingwood Hotel Pty Ltd v O’Reilly. In Proprietors of SP 17226 v Drakulic [2002] NSWCA 381, (2002) 55 NSWLR 559 at [113] Heydon JA said of “cases like the Chordas case” -

“They recognise that the duty to take reasonable care to avoid a reasonably foreseeable risk of injury to lawful visitors owed by the occupier or person in control of a restaurant or other outlet for the on-site consumption of alcohol extends to the injuries caused by tortious or criminal acts of other lawful visitors. A justification for this is that it is highly foreseeable that some patrons may either arrive intoxicated or become intoxicated, and a segment of these may become violent.”

75 However, in Club Italia (Geelong) Inc v Ritchie at [44] the Court questioned whether that case was rightly characterised as one of harm arising from criminal conduct, suggesting that it was one of harm arising from a state of affairs created by the club. In like manner, I would question whether the duty of care presently under consideration is to be regarded as particular content of an occupier’s duty of care owed to persons who come onto the occupier’s land.

76 The link with occupier’s liability has particularly come about through the reference to Chordas v Bryant (Wellington) Pty Ltd in the reservation expressed by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil, but it is not an essential link. The preferable approach, in my respectful opinion, is that the knowledge of facts requiring intervention to protect patrons may come from the nature of the establishment or the function to be conducted at the establishment, in the manner described in Club Italia (Geelong) Inc v Ritchie, and it is the foreseeability of injury from conduct on the premises plus the capacity to control the conduct, rather than the status of occupier, from which the duty of care comes. The status of occupier, of course, may be important because it provides the ability to control entry upon and conduct on the premises, but a licensee or manager of licensed premises may have control although not the occupier. That the conduct may be criminal is not of itself a bar. As was said in Club Italia (Geelong) Inc v Ritchie at [44] in relation to the state of affairs created by the club, “the club's position, as regards duty of care, might be no different if, instead of being attacked by a trouble-making ruffian, the plaintiff had been unintentionally struck by a peaceable patron defending himself against an assault, or accidentally knocked to the ground by non-violent patrons trying to avoid the melee.”

77 References in the cases to the licensee of premises does not mean that the duty of care can only be owed by the licensee. A licensee is frequently a natural person distinct from, although connected with, the person or corporation conducting the hotel or club, but through the licensee the hotel or club has the capacity to control the conduct of hotel patrons. So in Collingwood Hotel Pty Ltd v O’Reilly Basten JA referred to “someone in the position of a hotel manager or licensee”. Collingwood Hotel Pty Ltd was the occupier, the licensee was Mr Porter (at [16]): his Honour noted that their responsibilities were treated by the parties as the same (at [55]). In Wagstaff v Haslam the defendants were Mr Haslam, the licensee, and D & D Haslam Pty Ltd, the occupier of the premises. No distinction was drawn between them in relation to the duty of care. As has been seen, his Honour saw the basis of the duty said to be owed to the plaintiff in the control and knowledge of the occupier, and the licensee is often equated with an occupier. In Spedding v Nobles the cases to which there was reference for support for a duty of care owed “by licensees” to patrons in relation to the risks of violent behaviour of other patrons included South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) NSWLR 113, referring at [153] to the duty owed “by the occupier or person in control of a hotel, restaurant, bar or similar establishment”.

78 The cases to which there was reference also included TAB Ltd v Atlis [2004] NSWCA 322. TAB Ltd v Atlis was not a hotel case at all: the defendant was the occupier of a TAB outlet. Mason P said bluntly at [3] that the defendant owed a duty of reasonable care to patrons who came to its premises to place bets, the content of which extended “to the taking of reasonable measures to control rowdy and dangerous patrons whose activities had the potential to thereafter threaten the safety of other patrons”. Ipp JA, with whom Beazley JA agreed, said after referring to the duty of care as recognised by Mason P In Oxlade v Gosbridge Pty Ltd -

“35 Such a duty is capable of being extended in scope. In my reasons in South Tweed Heads Rugby League Football Club Limited v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 (with which Heydon JA and Santow JA agreed) I said (at 137, [152]):

‘[The general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant] ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.’

Nothing in the reasons of the High Court in this case (Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29; (2004) 78 ALJR 933) is inconsistent with these remarks.

36 The opponent complains that the claimants negligently failed to control the continued presence of the two young men on the premises. The facts in the present case, therefore, differ fundamentally from Modbury. In fact they fall squarely within the possible exception to the rule in Modbury explained by Hayne J (at 293-294 [117]).

37 In Modbury Hayne J (at 292 [112]) observed that “[t]he occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land”. Hayne J remarked that that power of control established a relationship between occupier and entrant that could suffice to create a duty of care.

38 Accordingly, while it is true that no liquor was sold at the TAB, that is by no means conclusive of the question.

39 Foreseeability of harm is an important factor in this context. It is very much to the point that, by the time Mr Youngman spoke to the two men, he realised that their activities on the claimants’ premises constituted a risk of injury to the other patrons.”

79 The duty of care in the hotel and club cases can be owed in relation to violent behaviour, whether from intoxication of a patron or for other cause. Intoxication may be a common cause, and may be what brings occasion for intervention to protect other patrons, but it is not essential. The Liquor Act’s strictures have extended and extend to indecent, violent or quarrelsome conduct (see s 125 in the citation from Spedding v Nobles, and now Liquor Act 2007, s 73). In Oxlade v Gosbridge Pty Ltd Mason P referred to the duty to protect patrons “imposed on the manager of a hotel as regards intoxicated or dangerous customers” (emphasis added). Club Italia (Geelong) Inc v Ritchie had involvement of liquor, but the focus was on the known extreme aggressiveness of the assailant (described at [44] as “a trouble-making ruffian”). As has been seen, in Wagstaff v Haslem the duty of care was stated in terms of a patron or patrons whose presence was or should have been known “to constitute a source of danger to other patrons”. See also the citation from TAB v Atlis, above, and in Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 decided after the hearing of the present appeal the Court spoke at [33][35] of a duty to exercise reasonable care arising out of the intoxicated or dangerous condition of its patrons.

80 In accordance with these principles, for the reasons which follow in my opinion the duty of care owed by the appellant to patrons attending the New Years Eve function extended to taking reasonable care to guard against injury from intoxicated, unruly or violent (including criminal) behaviour of other patrons. That does not mean a duty owed to the intoxicated, unruly or violent patron or patrons to guard against injury to themselves, which is another matter and does not arise for consideration.

81 Adeels Palace was not a small licensed café, and for what it is worth the New Years Eve function was not a Bench and Bar Dinner. Although the function was attended by family groups and persons of a broad range of ages, that did not dictate the nature of the premises or of the function any more than what might be understood from the function in Club Italia (Geelong) Inc v Ritchie being a debutante ball. The function was also attended by many who readily joined in the dispute and, as the statement of Ms Mansour indicates, were offensively aggressive; indeed, that she was told that there were going to be guns suggests that resort to weapons was not unfamiliar to some patrons. The premises were filled to capacity, and very likely beyond capacity. Alcoholic liquor was readily available over the long period of the function, and Mr El Baz thought some patrons were drunk. The function should have been seen beforehand as having a potential for drunken or violent behaviour.

82 To an extent that potential is supported by the earlier incidents in the COPS reports. The March 2000 incidents may be put aside, and there had been no reported incidents for nearly two years. But the incidents in 1998, 1999 and January 2000 shed some light on the nature of the establishment, and its patrons, and even if the violence was in the street outside Adeels Palace it gave a guide to the kind of persons who were reasonably to be expected to be patrons within the premises.

83 These matters may not of themselves be significant, but of particular significance, in my view, is the appellant’s ordinary engagement of Mr Zraika, or according to Mr Kouzi two security staff, in order to deter troublemakers from coming onto the premises and to assist in the removal of troublemakers from the premises. Similarly significant is the appellant’s own assertion in the letters (although found to the contrary), of engagement of at least two security guards on the occasion of the New Years Eve function, one to monitor patrons inside and the other to keep unwanted patrons out. The appellant considered that there was a need to have security staff because troublemakers might try to enter or might have to be removed. Its own conduct reflected foresight of troublemakers, which would have included drunken or violent patrons.

84 The appellant had the capacity to control behaviour within the premises, through its director Mr Bazouni who was the licensee but also through its ability as occupier to control who entered and remained in the premises. This ability was ordinarily exercised by the presence of security staff.

85 In the circumstances of this case, then, there was foreseeable behaviour of a patron or patrons presenting a danger to other patrons and the capacity to exercise control over that behaviour. The duty of care owed by the appellant extended, in my opinion, to taking reasonable care to guard against injury to the respondents by the unlawful conduct of another patron or other patrons.

Breach of duty

86 I have set out the evidence of Messrs Jennings and Zalewski on which the trial judge came to his finding. He came to it as follows -

“57. There was no evidence before me as to what the ‘venue operators’ had instigated at the premises Adeels Palace by way of security. Nor was there any evidence of a ‘licensed crowd controller withdrawing from work’. The only evidence of security on the night of 31.12.02 was the evidence of the Plaintiffs (there was no security personnel present) and the co-owner of Adeels Palace at the time, Mr Kouzi, which was of limited assistance.58. In my view the expert opinion of both Mr Jennings (principally) and Mr Zalewski, the latter at least in evidence agreeing on the need for ‘access control’ as the ‘front line of defence’ the latter having the purpose of discouraging at least, if not preventing, the return of unruly or troublesome patrons who had left the premises

[T 344; 349], leads me to conclude that the security arrangements at Adeels Palace on the relevant evening was far short of what reasonable care and skill required in all the circumstances.”

87 The trial judge’s reasoning was not extensive, but is clear enough from the evidence of Messrs Jennings and Zalewski to which he referred. It did not depend upon acceptance of Mr Jennings’ opinion that there should have been six to eight security officers on duty and the detail of their locations and duties. The reasoning did not go beyond the need for planned security arrangements, including access control and managing incidents of intoxication or violence. That called for at least some security presence in a position to respond to an incident developing on the dance floor, but particularly (and also in Mr Zalewski’s opinion) for security staff for access control. There was no security staff. Mr Kouzi’s presence was inadequate. So there was breach.

88 The appellant submitted that there was no breach of duty because an available reasonable response to the risk of injury from violence of one patron to another was not to have any dedicated security personnel. It submitted that because it was a function attended by family groups, it could reasonably be thought that any incidents which might develop would be minor and able to be dealt with by staff other than dedicated security personnel, in the way Mr Kouzi said he had dealt with an incident by escorting out one of the couple of guys talking to each other. The appellant reiterated that mere numbers or service of alcohol did not make the New Years Eve function into one in which a more major incident was foreseeable. It referred to TAB Ltd v Atlis as a case when there was no question of dedicated security staff and it was held that there was no breach of duty: the manager could not reasonably have been expected to eject the offenders.

89 The appellant also said, although I do not think it of significance because it was not shown to be within their domains, that neither the Licensing Court nor the Council required that security staff be engaged at the premises. It drew attention to evidence from Mr Kouzi that after the incidents in the street he asked the police what more could be done to “make us feel safe about it” and the police told him “to put monitors”. Since at the time the appellant had security staff at the street entrance, I do not see that this assists it.

90 I have set out the passages extracted by the trial judge from the reports of Messrs Jennings and Zalewski, and the oral evidence of Mr Zalewski to which his Honour also referred. I deal later with the complaint of erroneous admission of parts of Mr Jennings’ report.

91 The appellant submitted that Mr Jennings’ report was infected by his view of a history of violent incidents at the premises, taken from the COPS reports including those at 1.43 am and 1.44 am on 1 January 2003. In his third report dated 27 September 2007 in particular, Mr Jennings purported to summarise the incidents and expressed the view -

“12 These incident [sic] clearly indicate to me that the proprietors of this venue should have been very well aware of the ongoing danger of serious violence inside or in the immediate locality of the venue (but involving their patrons), for at least five years prior to the shooting of the Plaintiff. In particular, they should have been aware that their patrons had an obvious propensity towards the use of firearms in settling the disputes, let alone the use of chairs and other weapons not commonly used by restaurant patrons to settle disputes.”

92 Mr Jennings’ summary lacked moderation. There was room for greater evidentiary objection to his reports, in this and other respects, than was taken, and it should be said that counsel for the respondents accepted that his evidence could properly be criticised.

93 However, in my opinion there remained available from Mr Jennings’ reports the need for access control as found by the trial judge, a need which Mr Zalewski’s evidence supported notwithstanding the conclusion in his report that the system of security as explained to him (but not borne out in the evidence) was “not inappropriate for a restaurant and function centre”. The system as explained to Mr Zalewski included employing security staff “for access control purposes at the point of entry from ground level”, and it is pertinent that his expressed agreement with “most of Mr Jenkins [sic] comments about access control and minimising the risk of a patron reentry” included agreement with Mr Jennings’ statement, “It was standard practice in the licensing and security industries at this time that person who had left voluntarily or been ejected from a venue, who have a history of violent [sic] or threat should not be allowed back in.”

94 In my opinion, no error has been shown in the trial judge’s finding of breach of duty.

95 The appellant submitted also that Mr Jennings’ opinion was infected by his references to Adeels Palace as a nightclub, and to it being in a local government area with statistically significant violent criminal behaviour. As I have described, a number of persons referred to Adeels Palace as a nightclub. Mr Jennings referred to it as a restaurant/nightclub, and I do not see any error. It was relevant, although perhaps of little weight, that the premises were within an area statistically suggestive of particular need for security arrangements, and I do not think Mr Jennings said more than that; see later in relation to objection to some of this part of the report.

The Jones v Dunkel inference

96 As I have said, Mr Kouzi gave evidence that Mr Bazouni dealt with security staff most of the time. Mr Zraika was ordinarily on duty for security purposes, but not on the night in question. Neither Mr Bazouni nor Mr Zraika gave evidence.

97 The trial judge said -

“22 [Counsel for Mr Moubarak] submitted that the arrangements for proceedings for security at Adeels Palace at the material time was central to the proceedings and was very much within the Defendant’s knowledge. The expert relied upon by the Defendant, Mr Zalewski, was asked, as disclosed in his report (Ex 6) to assume certain facts including, at paragraph 555 ... ‘The operators had thought through their general security needs including managing conflicts on the upper level, instructing staff about intoxication and employing the services of security staff for access control purposes at the point of entry for ground level.’

23 No such evidence was before me from either side, but such evidence was more likely to be the preserve of the Defendant particularly as the Defendant’s expert had, it is assumed, been provided with that information from the Defendant via its solicitors. I do not consider that drawing an inference that the evidence of Mr Zraika and principally Mr Bouzani was not going to assist the Defendant fill in a gap in the plaintiff’s case. The Plaintiff’s case is that there was no security staff on duty at Adeels Palace at the relevant times and in particular at the point of entry at ground level. In these circumstances I am prepared to draw the inference that evidence from Mr Bouzani and Mr Zraika would not have assisted the Defendant’s case in the central factual issues in the case, that is what were the security arrangements in place at Adeels Palace at the relevant time.”

98 There is a difficulty with the grammar and sense of the second sentence of [23], but the trial judge was prepared to draw the inference expressed in the last sentence of that paragraph. The appellant submitted that it was not clear what inference the trial judge actually drew, but that whatever it was he should not have drawn it, because Mr Bouzani had resigned as a director of the appellant in March 2003 and Mr Zraika “was either a former independent contractor or employee and equally available to be called by the respondents”. It referred to Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239, in which it was held (at 259) that a former director of Claremont was equally available to both sides and the Jones v Dunkel inferences cancelled out.

99 Mr Bouzani was more than a director of the appellant, being principally responsible for its security arrangements at the time of the New Years Eve function. It is arguable that he would be expected to be called by the appellant, which was concerned to uphold the sufficiency of the arrangements he was in charge of, rather than the respondents: see various other tests stated by Glass JA in Payne v Parker (1976) 1 NSWLR 191 at 201-2. I do not think the evidence established whether or not Mr Zraika remained as a contractor to or employee of the appellant, but perhaps it would be inferred that by the time of the trial in November-December 2007 he had moved on, and at least in his case it may not have been correct to infer that his evidence would not have assisted the appellant’s case.

100 In either case, however, any inference drawn by the trial judge added nothing. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 expresses available modes of reasoning. Despite the enthusiasm with which it is commonly invoked, reliance on it is often of little or no significance. An inference that the evidence of Messrs Bouzani and Zraika would not have assisted the appellant would not have counted against the appellant if its case had otherwise been accepted, see Manly Council v Byrne [2004] NSWCA 123 especially at [74]-[75] per Campbell J, although that does not arise. Nor could it make up for any deficiency in the respondents’ cases, and there is no indication in the trial judge’s reasons that what he said in the paragraphs I have set out had any effect on his decision-making. His Honour was called upon to evaluate the cases of the respondents, and of the appellant, on the evidence before him. He was drawn by counsel’s submission into a statement of no consequence, without expression of what might have been had Messrs Bouzani and Zraika given evidence.

Causation

101 As recorded by the trial judge, the respondents submitted -

“62. ... that the inadequate provision of security arrangements by the Defendant (in particular access control) did, as a matter of robust common sense, materially contribute to the further violent conduct engaged in by Mr Abbas when he was able, freely without any monitoring or supervision, re-enter Adeels Palace and to do so armed with a weapon. He said the contribution of the inadequate (or non-existent) security was material (more than de minimus) [sic] and can thus be regarded as causative. Further there was no evidence to support a conclusion that, had there been proper arrangements for security including access control, Mr Abbas would in any event have entered the premises successfully to conduct further violence.”

102 Also as recorded by the trial judge, the appellant submitted that causation had not been established because it had not been shown “that a reasonable response by the Defendant to any perceived risk would have had any effect on the gunman, Mr Abbas” (at [63]). This was amplified as the submission that -

“64. ... it was speculative as to whether any of the security precaution by way of personnel would have any impact on quelling the fight in the reception area on level two of Adeels Palace or in deterring or dissuading or preventing the gunman ‘from proceeding with his desire to get a weapon and using it inside the venue as a reprisal for being punched by Mr Moubarak’.”

103 Observing that material contribution was sufficient for causation, the trial judge came to his conclusion -

“65 ... Mr Jennings said in his report of 27.9.07 at paragraph 13 to which I have referred said that with a proper security system in place (and he gave evidence as to what he considered that should be) ‘implemented by sufficient numbers of licensed security officers, then the person who eventually shot the Plaintiff should not have been permitted to leave and re-enter the venue certainly without being [thoroughly searched] on both entries ... ‘.

66 I therefore find on the balance of probabilities that the failure of the Defendant to have an adequate or any security system and principally including security personnel in place on the evening of 31.12.02 and 1.1.03, materially contributed to injuries suffered by both Plaintiffs and the causative link is established.

104 The appellant submitted that the respondents’ submissions as set out by the trial judge could involve reversing the onus of proof, and that if the trial judge adopted those submissions there was error.

105 I do not think that the judge’s reasoning, which was but briefly expressed, reversed the onus of proof. It should be remembered that the agreed facts included that Mr Abbas left the premises and re-entered soon after. While Mr Jennings inferred that Mr Abbas had left the premises in order to get the gun, most likely from his car, it does not matter whether or not he carried the gun at all times. The critical matter, in the judge’s reasoning, was that on the probabilities Mr Abbas would not have been permitted to re-enter the premises if there had been a security presence providing access control.

106 In coming to his conclusion the trial judge did refer to Mr Jennings’ evidence of a proper security system with sufficient numbers of licensed security officers. I do not think his Honour intended to take up the six to eight security officers deployed as Mr Jennings had described. It was sufficient for his reasoning in relation to breach of duty to consider access control – one or perhaps two security staff providing access control as the front line of defence “having the purpose of discouraging at least, if not preventing, the return of unruly or troublesome patrons who has [sic] left the premises” (at [58]), cited more fully above).

107 Although not fully articulated by his Honour, the reasoning must have been as follows. From the evidence, security staff would have been aware of a significant fracas on the dance floor. Even if Mr Abbas had not been identified at the time as the man who had got into a fight with Mr Moubarak, the presence of blood on his face would have caused the security staff at the street entrance, particularly with knowledge of the fracas, to deny him entry, or at least to require that he submit to search as a condition of being permitted to enter. On the balance of probabilities, security staff at the street entrance would have deterred or prevented Mr Abbas’ re-entry, and he therefore would not have shot Mr Moubarak and Mr Bou Najem.

108 The appellant submitted to the effect that the dispute on the dance floor escalated so rapidly and unexpectedly that it was speculative that the presence of security staff would have quelled it, but that submission does not meet causation as was in my view found by the trial judge.

109 More relevantly, the appellant submitted that Mr Abbas was not acting rationally, and that both his irrationality and his determination were demonstrated by the fact that he shot Mr Bou Najem although Mr Bou Najem was not shown to have offended him and despite Mr Bou Najem’s plea not to shoot him. So, it was submitted, as a matter of common sense the presence of security staff would not have deterred Mr Abbas from obtaining a weapon and returning to use it inside the premises, he being “an obviously determined man, who was prepared, following a relatively minor physical altercation, to shoot someone he had never met before in front of many witnesses, apparently as a reprisal for merely being punched”. It was added that “the law recognises the arbitrary, capricious and unpredictable nature of a criminal’s behaviour”, referring to Modbury Triangle Shopping Centre Pty Ltd v Anzil at [30] per Gleeson CJ; [136] per Callinan J; Proprietors of SP 17226 v Drakulic at [132]-[139]; and Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 at [10], [131]-[146]; these, however, were general statements, and the present question is one of particular fact.

110 In short, the appellant submitted that the causation as found by the trial judge was no more than speculation. Its submissions went so far as to include that in his irrational and determined state Mr Abbas would have gained entry despite the access control by using his gun against the security staff. (It should be said that it was not suggested that the security staff should have been armed.)

111 I do not agree. In my opinion, the finding of fact was open to the trial judge, and was correct. The trial judge was called upon to decide on the balance of probabilities, and was entitled to regard use of force against the security staff as quite unlikely and to conclude that that presence would have had a successful deterrent or preventative effect.

Rejection of parts of Mr Jennings’ reports

112 I refer here to the parts of Mr Jennings’ reports other than those associated with the complaint of rejection of Dr McMahon’s report, to which I will come. Dr McMahon’s report went to causation. The appellant’s written submissions complained only of the admission of expert opinion evidence ”tendered by the respondents going to the issue of causation”, and most of the parts of Mr Jennings’ reports identified in the grounds of appeal did not go to the issue of causation. The appellant’s oral submissions went further, and are now considered.

113 The appellant objected to a sentence in para 18 of Mr Jennings’ report dated 5 October 2004 stating, “There is evidence that the Bankstown area of Sydney has, in recent years, developed a well founded reputation as a centre of the violent crime in this State, along with the Fairfield/Liverpool area”. The sentence was the preface to reference to a publication of the New South Wales Crime Statistics and Research analysing occurrence of violent crime over the years 1997 to 2000, and Mr Jennings said that he believed that “such data should have been considered when assessing and developing a security and safety management plan for the premises” with “higher than average physical security measures to compensate for these increased risks”.

114 The sentence to which objection was taken in its context could go no further than the underlying study, to which objection was not taken. The trial judge pointed this out when ruling on the objection. His Honour showed considerable doubt that the general level of crime in the area was relevant, but allowed the sentence with the observation that it was “a question of weight”. I have earlier referred to this. The evidence in the study was relevant, for the purpose indicated by Mr Jennings, although the sentence in question put a gloss on the data in the study which would have better been avoided. Weight was another matter.

115 The appellant objected to paras 19 to 24 of the same report of 5 October 2004. They appeared under the heading, “Principles of Security Officers’ Work at Licensed Premises”, and provided a discussion of availability of licensed security officers and common arrangements for their provision by security service providers.

116 The appellant’s objection at trial was that “[t]he principles of employment of security officers ... have nothing to do with this case. This is all about licensing and so on”. It was elaborated on the basis that, because the respondents alleged that there were no security officers, the question of security officers was irrelevant. There was considerable debate, in the course of which counsel for the appellant said that there would be “evidence that there was security officers [sic] there up until a particular point in the evening”. That rather undermined the basis of the objection, which in any event was unsound – the respondents’ allegation that there should have been security officers was the occasion for the discussion. The trial judge said that the paragraphs “should stay in until such times as we hear further evidence about what security officers were there, if that’s going to be the evidence of the defendant”.

117 With hindsight, the debate was not particularly illuminating. The appellant did not call evidence that Mr Zraika (or any other security staff) had been on duty until an incident caused him to withdraw, but did not renew its objection to the paragraphs. In the result, the admission of the paragraphs does not appear to have played any part in the trial judge’s decision-making.

118 Some understanding of the availability and arrangements for provision of security staff was appropriate, although perhaps not in the detail given by Mr Jennings. In my opinion the trial judge took an appropriate course in the circumstances, but if there were error in the admission of the paragraphs it has not been shown to have caused a substantial (or any) miscarriage of justice: UCP Rules r 51.53.

119 The appellant objected to the second sentence of para 12 of Mr Jennings’ report of 30 November 2006. The complete paragraph read (the oddities in phrasing are in the original) -

“12 It was standard practice in the licensing and security industries at this time that person who have left voluntarily or been ejected from a venue, who have a history of violent or threat should not be allowed back in. It is a widely accepted principle that person voluntarily leaving a venue after a problem will often go to their cars and get weapons with which to carry out revenge attacks. This no re-entry rule must therefore be strictly adhered to stop those weapons getting back.”

120 The ground for the objection was not stated. The trial judge was at first against the admission of the sentence, saying, “I think I know what he’s trying to say but he’s not saying it”. Counsel for Mr Moubarak sought “leave to deal with the issue in chief”, and the trial judge said that he would “allow it in, to allow some evidence about it” and “[i]f you can’t meet what is said, it will go out.”

121 Mr Jennings was asked in chief for the “basis” on which he made the statement in the sentence, and explained that he had experience “where that sort of circumstance has occurred”. There was no objection to this evidence, nor were we referred to any subsequent mention of the status of the second sentence.

122 The appellant apparently acquiesced in the view that the problem lay in the basis for Mr Jennings’ assertion of a “widely accepted principle”. It was for the appellant to renew its objection, but it did not do so. Mr Jennings’ experience was relevant, it informed the sentence in question, and there is no basis for complaint on appeal.

123 The appellant objected to para 7 of Mr Jennings’ report dated 27 September 2007. It began, “The Police COPS record of violent events at or close to, the venue, prior to the shooting of the Plaintiff gives indication that the venue has a history of such violence.” There were then accounts, in context taken from the COPS reports, of incidents on occasions from December 1998 to January 2003. I have earlier referred to this, and to the conclusions to which Mr Jennings came in the following para 8 of the report.

124 The appellant objected on the ground that the first sentence in para 7 “is a matter for your Honour”, and that Mr Jennings did not have an advantage over the trial judge in reading the COPS reports. The objection was stated, “So it’s objectionable in form, your Honour”. The trial judge allowed the paragraph, observing that he thought “it’s his way of introducing the COPS evidence. That’s as far as it goes ... “.

125 In providing his opinion Mr Jennings identified what for the purposes of his report was an assumption, a history of violence associated with the premises. The source of the assumption was explained, and had to be separately established by evidence. The COPS reports were separately tendered. They may or may not have made good the assumption, but the objection was not on the basis that they failed to make it good. In due course it was open to the appellant to submit that Mr Jennings’ opinion lacked foundation so far as resting upon the COPS reports, but that was a different matter. Given the basis of the objection, there was no error.

126 The appellant objected to part of para 10 of the report of 27 September 2007, so far as Mr Jennings expressed the belief that “this venue was in fact a ‘nightclub’ serving alcohol until the early hours of the morning with a history of violence”. The ground for the objection was not explained, but counsel for Mr Moubarak said it was “his commentary on the COPS report [sic]” and it appears to have been accepted that it was in the same position as para 7 of the report.

127 I do not think any error has been shown in these evidentiary rulings material to the result in the proceedings.

Rejection of Dr McMahon’s report

128 The appellant tendered Dr McMahon’s report for the opinions that Mr Abbas had demonstrated “a high degree of persistence against the present inhibiting factors”, that “there were identified situational factors to motivate violence, and cultural factors that condone violence”, and -

“Given the proximal nature of the assault by Mr Moubarak upon Mr Abbas and the degree of persistence displayed by Mr Abbas, in my opinion it is likely that despite the presence or intervention of unarmed security operatives Mr Abbas would have completed the assault with a firearm, either at the premises or outside the premises. He was suitably motivated to gather the weapon, that he likely would have engaged in concealment against casual inspection [sic].”

129 The trial judge rejected the tender of the report, after some discussion, essentially on the basis that “[t]his man is giving a psychological opinion about a person he’s never seen, based on facts and supposition that simply can’t be substantiated”.

130 The report of Dr McMahon was obtained by the appellant as a response to certain parts of Mr Jennings’ reports. The appellant was rather ambivalent on appeal concerning the rejection. It pointed to the admission, despite its objection, of portions of Mr Jennings’ reports which it said involved the implicit opinion “that the particular gunman would have been deterred or prevented by unarmed security personnel from returning to the premises and shooting the respondents.” It said that “either none of the evidence should have been admitted or only Dr McMahon’s evidence should have been admitted, on the basis that he was qualified to give evidence of that nature whereas Mr Jennings had no relevant qualifications, training or experience to opine on the reaction of the actual gunman to any particular security measures.” But it acknowledged that Dr McMahon’s evidence “was not of much probative value”, and its central position was that none of the evidence should have been admitted.

131 The appellant accepted that the trial judge’s decision on causation did not involve any apparent reliance on the relevant parts of the reports of Mr Jennings, and in my opinion there was no such reliance.

132 The relevant parts of Mr Jennings’ reports were –

(a) para 14 of his report dated 30 November 2006, reading -

“All of the above does no [sic: not] change or limit any of my original comments that this incident would most likely have not have occurred if the proprietors of the restaurant had adopted a proper system of security and safety as was in common use at that time and commensurate with the viable foreseeable risks”.

(b) the first sentence of para 15 of his report dated 27 September 2007 , reading -

“This Defendant, by all reasonable standards of security and safety accepted in the industry as at 2003, met none of the requirements of reasonableness which, if met, would almost certainly have deterred this crime from having occurred in the first place.”

(c) Para 17 of the report of 27 September 2007, in like terms to para 14 of the earlier report.

133 The trial judge admitted para 14 with the remark that it was “vague enough, general enough, perhaps to remain in. What weight I give it is a different matter.” The ruling as to para 15 is far from clear, apparently dependent upon further evidence “and then we’ll deal with that, whether it should stay in after that”. Counsel for the appellant accepted that para 17 was in the same position as para 14.

134 The better view may have been that, at least so far as expressing a view on causation, these parts of the reports should have been rejected. However, it is plain that the trial judge did not at the time see them as carrying weight as to causation, and when he rejected the report of Dr McMahon he observed, “That’s not to say ... I haven’t got reservations about Mr Jennings, but I’ll hear in due course about that ... “. Mr Jennings was not expressing (and could not express) an opinion on Mr Abbas’ psychological disposition, and it is quite clear, in my view, that the trial judge did not act upon such opinion as Mr Jennings expressed on whether Mr Abbas would have been deterred by a security presence at access control. If his Honour was in error in admitting the relevant parts of his reports, there was no substantial (or any) miscarriage of justice within r 51.53.

135 That sauce for the goose is sauce for the gander is not a principle of the law of evidence. A reading of the report of Dr McMahon makes clear that he came to his opinion with limited information concerning factors material to Mr Abbas’ propensity to violence – even his age was unknown. Dr McMahon described the “degree of certitude” of his conclusions as “moderate”, on the basis “that no examination proper had been made of the offender”, and qualified his opinion by stating that he was “unable to conclude regarding [Mr Abbas’] behaviour in the presence of metal detectors or other methods of inspection, or security in general” (emphasis added). In my opinion the report carried no weight and was correctly rejected.

136 Two observations are appropriate. First, it is desirable that the ground for an objection and, if reasons are given for the ruling, the basis of the ruling be clearly articulated; from the transcript, that did not always occur. Secondly, where the trial has been before a judge alone, complaint on appeal of erroneous admission (or rejection) of evidence should not be made unless there is some point to it in challenging the judge’s substantive decision; perhaps greater discrimination could have been exercised in the present case.

The result

137 I propose that the appeals be dismissed with costs.

138 CAMPBELL JA: I agree with Giles JA, but should state the basis upon which I agree with para [75].

139 I accept that the duty of care arises from the foreseeability of injury from conduct on the premises, plus the capacity of the defendant to control the conduct. However, there are many cases in which the fact that the defendant is the occupier of the premises is of significant importance in it being foreseeable that injury could arise from conduct on the premises, and in the defendant having the capacity to control the conduct.

140 In the case of bodily injury arising from the physical state of the premises, it is often because the defendant is the occupier that it knows or ought to know about the physical condition of the premises, and thus that bodily injury arising from those deficiencies in the physical condition is reasonably foreseeable. It is often also because the defendant is the occupier that it has the opportunity to prevent bodily injury arising in that way, whether by fixing the defects or warning about them.

141 It is no different concerning bodily injury arising from the activities of other people on the premises. Having the continuing relationship with the premises that comes from being an occupier is often why the occupier knows, or ought to know, the type of conduct that persons who come to the premises could reasonably be foreseen to engage in, and the likelihood of them engaging in such conduct. Often it is the status of occupier that gives a defendant the opportunity to promote, on the premises, the carrying out of the type of activities from which the foreseeable injury arises. Often it is the status of occupier that confers on the defendant the capacity to control the conduct of people on the premises. In other words, the status of occupier can be very relevant to the reasons why a duty arises to take reasonable care to prevent bodily injury arising from the conduct of other people on the premises. However, it is not in itself the fundamental reason why the duty of care arises.

142 Here, the appellant organised the provision of food, drink and entertainment in a manner deliberately calculated to attract patrons to the premises. The type of activities carried on there involved numerous people gathering in close proximity to each other, at least predominantly for the purpose of social interaction, over many hours, in circumstances where alcohol was readily available. The availability of alcohol is part of the reason why a duty of care exists, even though it is not shown to have played any prominent part in the way the respondents’ harm arose in this particular case. The history of the club, as well as the inherent probabilities of the type of activity being carried on in the club (of the type explained in the extract from Club Italia set out at para [73] of Giles JA’s judgment), made it reasonably foreseeable that the patrons would include the potentially troublesome and violent.

143 In a hotel the proprietor can influence the way patrons conduct themselves by measures like aiming to attract a particular market segment (through matters such as décor, facilities, entertainment offered, and pricing policy); having security staff identifiable as such whose presence in itself can have a deterrent effect; having visible security cameras that act as a reminder that the acts of patrons will not go unobserved and unrecorded; having trained and competent bar staff and security personnel instructed to act in a way calculated to prevent trouble arising or to defuse trouble if it seems to be brewing; and having procedures and security staff that result in troublemakers being removed. However hotels are usually the sort of premises that any adult can enter if minded to do so, and multiple entrances to the premises are quite common. The Appellant had even greater capacity for control than most hotel proprietors have because at the Appellant’s premises, public entry was permitted only through one set of doors at street level, which led up a set of stairs, and only upon payment of admission.

144 I agree with the order proposed by Giles JA.

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LAST UPDATED:
26 February 2009