Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem

[2009] HCATrans 233

[2009] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S191 of 2009

B e t w e e n -

ADEELS PALACE PTY LTD

Appellant

and

ANTHONY MOUBARAK

Respondent

Office of the Registry
  Sydney  No S192 of 2009

B e t w e e n -

ADEELS PALACE PTY LTD

Appellant

and

ANTOIN FAYEZ BOU NAJEM

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 SEPTEMBER 2009, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR J.E. SEXTON, SC:   May it please the Court, in both matters I appear with my learned friend, MR M.J. GOLLAN, for the appellant.  (instructed by Lee & Lyons Lawyers)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friends, MR D.R. CAMPBELL, SC and MR D.C. MORGAN, for the respondent in the first case.  (instructed by Leitch Hasson Dent Solicitors)

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR J.W. CATSANOS, for the respondent in the second matter.  (instructed by Sanford Legal)

FRENCH CJ:   Yes, Mr Sexton.

MR SEXTON:   Your Honours, this appeal raises the two questions that were reserved in Modbury by the Chief Justice in paragraph 34 in relation to “foreseeability and predictability of criminal behaviour”, whether those two elements:

could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour –

and the question identified by Justice Hayne at paragraph 117.  What his Honour said there was in the second sentence:

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.

The reason that I mention that at the outset, your Honours, is for two reasons.  Firstly, in the respondent’s submissions in Bou Najem at paragraph 49 they rely on what is referred to as two decades of decisions at intermediate appellate court level which follow the decision in Chordas which Justice Hayne referred to in paragraph 117 and which have extended what was decided in that particular case. 

There were three cases before Modbury was decided.  The first was Chordas in the Full Court of the Australian Capital Territory, the second was Wormald in 1992 in Queensland and the third was Oxlade in 1998 in the New South Wales Court of Appeal.  The point, your Honours, is that to the extent that there has been a body of authority which has developed since the decision of this Court in Modbury, that has to be looked at in the context that this Court expressly reserved the question of whether those earlier three cases were correctly decided.

The other reason I mention it at the outset is because the submissions in the Moubarak appeal proceed on the basis that the type of case referred to in paragraph 117 of Modbury is an exception, or perhaps more accurately, is the type of case that is not covered by the principles applied in Modbury.  What we say about Modbury is that it clearly is not at all fours with this case.  It involved a stranger, in the sense of somebody who was not a patron of the shopping centre, coming onto the land and carrying out a violent attack on somebody who was a lawful entrant.

This case and the other cases that have considered licensed premises since Chordas involve violence by one patron against another patron.  Our submission is that the settled principles which were applied in Modbury and led to the conclusion that occupies an entrance as a class were not in one of the special relationships referred to in earlier cases are relevant and should be applied in these sorts of cases in which there is violent behaviour by one patron against another patron.  That type of violent behaviour is not limited, of course, to licensed premises.  In the New South Wales Court of Appeal case in TAB v Atlis what was involved was violent behaviour by one patron of a TAB agency against another patron.  However, most of the cases have involved licensed premises.

GUMMOW J:   Do you accept what Justice Gaudron said in Modbury?

MR SEXTON:   Paragraph 43?

GUMMOW J:   Yes, 42 and 43.

MR SEXTON:   Yes, your Honour.  If I could come back to that shortly, your Honour.

GUMMOW J:   We have to get to fundamentals, Mr Sexton.

MR SEXTON:   I understand that.

GUMMOW J:   You do not get it by scratching around in these earlier cases in lower courts.

MR SEXTON:   No, your Honour.  What I wanted to do was to identify the process of reasoning in Modbury and then to apply it.

GUMMOW J:   That requires attention to all the judgments of the majority in Modbury.

MR SEXTON:   Yes, your Honour.  Could I start, your Honour, by putting forward in a summary form the manner in which this Court approached the issue in Modbury.  The starting point is the general rule that there is no duty owed in relation to the criminal activity of third parties.  In that context “third party”, in our submission, means the person for whom the occupier is not vicariously liable.  In other words, it does not mean only somebody who comes onto the premises without invitation or without consent.  There is an exception to that rule for special relationships.  The special relationships depend upon the capacity to control one of the parties to that relationship.

GUMMOW J:   What do we mean by “control”?

MR SEXTON:   What we mean by “control” in that context, your Honour, is an obligation other than the power or capacity to remove somebody, in other words, control in the accepted categories, parent and child, gaoler and prisoner and so on.

CRENNAN J:   So it is a capacity for physical control?

MR SEXTON:   No, your Honour.  It is an obligation which does not end or where the problem is not solved simply by removing somebody.  In other words, the parent who has the obligation to control the child does not, if the child is misbehaving, solve that problem by sending the child away.  In the context of an occupier and an entrant, an occupier and a patron, the way in which the control is exercised is by removing that person.  Once the person is off the premises, that is the end of the matter.  It is not the type of relationship in which the person who has liability must continue to exercise control over the other party.  That is the point, your Honour.

CRENNAN J:   Power to remove?

MR SEXTON:   Yes, your Honour, but the point is that ‑ ‑ ‑

GUMMOW J:   Without encountering liability in tort for doing so; for removing, for assault?

MR SEXTON:   Yes, your Honour, which is an incident of the rights of every occupier.  The right of an occupier to send somebody away who is either misbehaving or likely to misbehave does not depend on statute.  Anyone in occupation of any premises can say to somebody, “I do not like the look of you, do not come in here”, or can say, “The way you are behaving is inappropriate, please leave”.

GUMMOW J:   If they do not?

MR SEXTON: You may exercise reasonable force to remove, or you may call the police. I will come back to this in a moment, your Honour, but the statutory provision which is relevant in this case, section 103 of the Liquor Act 1982 (NSW), which is attached to our written submissions, section 103(4) expressly provides that:

Where a member of the police force is requested by a licensee or an employee of the licensee to turn out, or to assist in turning out, of the licensed premises a person whom the licensee is entitled under subsection (1) or (2) to turn out of the premises, it is the duty of the member of the police force to comply with the request ‑ ‑ ‑

GUMMOW J:   To comply how promptly?  These things happen quickly.

MR SEXTON:   Well, they do, or they can happen quickly, your Honour, if they happen.  The power, the capacity of the occupier is to remove, and if that power is ‑ ‑ ‑

FRENCH CJ:   Or to refuse admission.

MR SEXTON:   Or to refuse admission, and if that happens, either somebody does not come onto the premises or somebody having been requested to leave does leave, that is the end of the relationship.  It is not a continuing relationship like parent/child, gaoler/prisoner and so on, the other exceptional category, of course, being employer/employer, but that derives from the obligation to provide a safe system of work rather than because of a particular capacity of an employer to control behaviour.

FRENCH CJ:   That is really control in relation to the exercise of power over persons.

MR SEXTON:   Yes, your Honour.

FRENCH CJ:   Rather than a broader concept of control in relation to a set of circumstances or a situation that might arise.

MR SEXTON:   Yes, your Honour.  Ultimately, your Honours, in our submission, the issue is whether in the case of licensed premises it is sufficient that, so far as the statutory obligations are concerned, it is sufficient that the statutory obligations impose either criminal sanctions or the possibility of the removal of valuable licences being a sufficient incentive for occupiers of licensed premises to comply with the statute or whether, in addition, by way of deterrent effect there should be a tort obligation which sounds in damages if that does not occur.

GUMMOW J: Section 103, to some extent at any rate, is doing more, is it, than restating the ordinary principles of tort as to removal and assault or is it just making the common law clear? I am looking at section (3A).

MR SEXTON:   In my submission, that restates the common law, your Honour.

HEYDON J:   And gives, presumably, the licensee something that can be pointed to.  In lieu of a lecture about licences at will, you can say “You are intoxicated, you are using the premises for prostitution” and so on.

MR SEXTON:   Yes, your Honour.  Your Honours, what Modbury decided was that occupiers and entrants are not a special relationship for the purposes of the categories as special relationships which have been identified both in that case and elsewhere that we have just been discussing.  What this particular case raises as an issue, in particular, in terms of the notices of contention that have been filed by both respondents, is whether occupiers of licensed premises and entrants are a special relationship, a category which is excepted from the general rule, even though occupiers and entrants in general are not.

The reasoning in Modbury was that the relationship of occupier and entrant is not a special relationship.  That did not depend on the type of person who was coming onto the premises and engaging in violence, whether that person was somebody who was a trespasser, not invited, or whether that person was another patron, because the reasoning concentrated on the relationship between the occupier and the person who suffered harm, not on the relationship between the person who engaged in the violent behaviour.  Your Honours, in the reasons of the Chief Justice, his Honour, at paragraph 20, referred to the judgment of Justice Dixon in Smith v Leurs, in which Justice Dixon said:

There are, however, special relations which are the source of a duty of this nature –

and referred to one of them, that is:

a parent who maintains control over a young child –

In paragraph 23 the Chief Justice referred to a submission about an assumption of responsibility and observed that:

the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties.

Then at paragraph 25 said that:

The fact that, as occupier of the car park, the appellant had the capacity to decide when, and to what extent, it would be lit at night, does not mean that the appellant assumed a particular responsibility to protect anyone who might lawfully be in the car park against attack by criminals.

and so concentration on the relationship between the occupier and the injured patron.  Then at paragraph 26:

Leaving aside contractual obligations –

I will come back to that shortly –

there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be.  Such relationships may include those between employer and employee, school and pupil, or bailor and bailee.  But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions.

FRENCH CJ:   The possibility of violent, quarrelsome or disorderly behaviour occurring on licensed premises would not be described as the occurrence of a random or unpredictable event, would it?  I mean, the possibility itself is contemplated in the Liquor Act.

MR SEXTON:   Yes, your Honour, but nevertheless, it is random and it is of low probability when one is considering the position of licensed premises as a whole.  Licensed premises in New South Wales and elsewhere cover a vast array of businesses, from licensed establishments which may have been there for 150 years in which there has never been any suggestion that anyone may act violently.  It is random because one never knows where it may occur.  It is unpredictable for the same reason because even in those sort of establishments which may have a reputation for being more likely than others to involve violence, it is still unpredictable as to whether violence will occur on any particular occasion.

In the present case – and I will come back to this in more detail shortly – but there were a few incidents some time before the particular New Year’s Eve event.  There was no evidence of any violence at previous New Year’s Eve events.  It was, as a matter of fact, random and unpredictable in this case.  The Liquor Act in New South Wales and elsewhere recognises the possibility.  It imposes an obligation on licensees to deal with it, but the fact that the legislature ‑ ‑ ‑

HAYNE J:   Where does the Act impose the obligation on licensees to deal with it? Section 103 gives power.

MR SEXTON: Section 125, your Honour, in the sense that 125 provides that:

A licensee shall not:

(a)      permit . . . prostitution, or

(b)permit intoxication, or any indecent, violent or quarrelsome conduct –

and then imposes a penalty if there is a breach of that obligation.  So, your Honours, recognition by the legislature that there is a possibility that such conduct may occur does not, with respect, say anything about how random or unpredictable it may be, both for licensed premises generally because of the broad spectrum of premises which have licenses, or in relation to any particular premise.  It certainly does not, in our submission, meet the test of highly recurrent and predictable behaviour that the Chief Justice was referring to in Modbury in the passages which I am about to come to.

CRENNAN J:   Does the fact that the assailant was armed have any particular salience in the context of the point you are making?

MR SEXTON:   Well, it certainly makes it more random and less predictable.  There was some evidence in the form of an annexure to an expert report which suggested that offences involving hand guns in New South Wales was something like 1.6 per 100,000 of violent attacks, so that the use of guns is very low in terms of probability, which is a matter I will return to when I deal with breach in terms of the Wyong v Shirt approach to that.  It also demonstrates that, as was made plain in Modbury, when one is considering imposing a duty in relation to criminal behaviour the duty can extend to all manner of criminal activity.

It is one thing to look at a case like this one in which one man re‑enters premises with a gun, but the licensee or occupier of licensed premises considering what to do if there is such a duty has to have regard to the not far‑fetched or fanciful possibility that a large gang of people may for one reason or another seek to enter premises, or that one person even in a remote quiet situation may engage in what has been described as a rampage or a massacre.

The cases at intermediate appellate court level have involved large, busy establishments and physical violence in the sense of fist fights and so on, but the duty, if imposed, has to contemplate a whole range of criminal activity.  That was a reason why the duty was not imposed in Modbury and, in our submission, it is an equally powerful reason why a duty should not be imposed on occupiers of licensed premises because of the random and unpredictable nature of violent criminal behaviour which has to be contemplated.  I have taken your Honours to paragraph 26.  I then go to paragraph 29 where the Chief Justice made a number of relevant comments.  The first is that:

The control and knowledge which form the basis of an occupier’s liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger.

That goes to what I have just been making submissions about, that is that you do not know what type of behaviour you may have to deal with.  If there is a defect in the floor or some other structural defect in premises, then an occupier either knows or should know and can deal with it:

The principle involved cannot be ignored by pointing to the facts of the particular case and saying (or speculating) that the simple expedient of leaving the car park light on for an extra half hour would have prevented the attack on the first respondent.

That is really an aspect of causation but it is relevant to the imposition of the duty.  This is a point that I was making a moment ago:

If the appellant had a duty to prevent criminal harm to people in the position of the first respondent, at the least it would have had to leave the lights on all night; and its responsibilities would have extended beyond that.  Furthermore, the duty would extend beyond the particular kind of harm inflicted by the criminals in the present case.  It would presumably include criminal damage to property.  If the baseball bat had been used, not against the first respondent, but against his car window, or if the car had been stolen, the same principle would govern the case.  The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

Paragraph 30 is the paragraph that leads to what I referred to at the commencement of these submissions about foreseeability and predictably of criminal behaviour.  The Chief Justice observes:

There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictably, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it.

That was suggested in Smith v Littlewoods and then there is reference to the position in America.  Then the Chief Justice in paragraph 31 says:

That does not represent an accurate statement of the common law in Australia.

In paragraph 32:

The factor most commonly taken into account in the United States in determining whether criminal activity was reasonably foreseeable is knowledge on the part of the occupier of land of previous incidents of criminality.

Paragraph 33, that is not this case and the reason that it is not this case is because there had been some incidents but they had been few in number and some time before.

Now, your Honours, in this case, as we will see shortly, there were some incidents involving these premises a couple of years before, and our complaint about the decisions below in relation to breach is that neither of the courts gave any, or alternatively, sufficient weight to the extremely low degree of possibility that there would be violent behaviour at this particular function.

Now, your Honours, this case involved premises at which there were a variety of types of activities, for want of a better word, which varied from Friday and Saturday night at which the premises could be described as a place for young people, a nightclub atmosphere and so on.  On the other hand, there were circumstances in which functions such as birthdays, weddings, christenings were conducted on the premises.  The particular New Year’s Eve function was somewhere in between.  The point of it is that even in this case the facts demonstrate that there was a variation in the type of function that was being conducted at the premises, so that the premises generally did not answer the description of premises at which it was highly foreseeable that violent behaviour would occur.

HAYNE J:   Of what importance is it, if any, to recognise that the Liquor Act has as its object – see section (2A):

minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence –

et cetera?

MR SEXTON:   Well, your Honour, in our submission ‑ ‑ ‑

HAYNE J:   Just let me complete the triplet so that you can see them all.

MR SEXTON:   I am sorry, your Honour.

HAYNE J:   Licensees are obliged under penalty not to permit “violent or quarrelsome conduct” and are given powers that may be no more than a replication of common law powers to deal with it, see sections 125 and 103.

MR SEXTON:   Yes, your Honour.  Our answer to that is that, as I said earlier, the legislation expressly contemplates that there will be criminal sanctions or commercial sanctions in the form of removal of licence if there is breach of those provisions.

HAYNE J:   The common law duty found against you in the Court of Appeal is I think captured at page 683, paragraph 80 of the reasons of the Court of Appeal, the last three lines on page 683 if you have them:

taking reasonable care to guard against injury from intoxicated, unruly or violent (including criminal) behaviour of other patrons.

Now, that seems to be an expression of duty that echoes to a large degree what we find in the Act.

MR SEXTON:   It does, your Honour.  The response is that, as your Honour said in Modbury, imposing a common law obligation to pay compensation on an occupier of premises, not licensed premises, has the effect of shifting responsibility for what, if the assailant had the capacity to pay, would be compensation payable by the assailant, not by the occupier of premises, coupled with imposing an obligation on individuals to prevent behaviour which society as a whole, through police force, and elsewhere, can not control.

So that raises the fundamental policy issue of whether, in addition to criminal sanctions, and in addition to the commercial sanction of loss of a licence, there should be an additional financial burden placed on an occupier of premises in order to have a deterrent effect against those type of considerations, because what we are dealing with here is an independent decision of whoever it is that engages in the violence to engage in criminal behaviour.

HAYNE J:   But you at the moment are directing submissions to the proposition no duty at all.

MR SEXTON:   Yes, your Honour.

HAYNE J:   There are separate debates about, if there is a duty, what performance of that duty would require?

MR SEXTON:   Yes, your Honour. 

HAYNE J:   The point, I think, that needs to be addressed immediately is whether the finding of a duty owed by persons operating premises licensed to sell alcohol when there is a public recognition, statutory recognition, that liquor carries with it at least the risk of harm arising from violence and other antisocial behaviours is at odds with the principles of the kind that you have been considering until now in your submissions.

MR SEXTON:   Your Honour, it is important, of course, to bear in mind that we are dealing with a scope of duty, not whether a duty is owed at all, because occupiers owe duties, and the question is whether the scope of the duty owed by occupiers of licensed premises should extend to preventing criminal behaviour and part of that inquiry also involves the question of whether the scope of the duty should extend to the provision of dedicated licensed security guards, as opposed to simply following what is contemplated by the Liquor Act itself, which is that if there is a problem, the licensee or the occupier requests that somebody leaves the premises, and if they do not, calls the police.

Now, Justice Gummow said “Well, how long will that take?”  The police are under a duty to respond, so it raises the issue of whether the scope of the duty is such that it requires an occupier of licensed premises to expend the money engaging licensed security guards to use additional, but reasonable force, to that which the occupier itself can exercise.  That is the issue in this particular case.

FRENCH CJ:   We are not concerned solely with the status of the licensee as occupier but as the provider of a class of service which it is licensed to provide and the nature of which is addressed by the provisions that Justice Hayne has mentioned.  Can one not see within that framework and supported by the provisions he has referred to a spectrum of probabilities of different kinds of behaviour occurring on licensed premises which might range from simple intoxication through to disorderly, through to abusive conduct, through to mild violence, through to low probability of extreme violence of the kind that happened here?  Given that there is a foreseeable range of events, some of low probability, some of greater probability, can one on that basis deny the existence of a duty of care, the question of its standard being another issue, in terms that Justice Giles formulated in the Court of Appeal?

MR SEXTON:   Yes, your Honour, for the reasons I have already given which is that it creates an exception to the general principle and the reasons which we have identified in our written submissions are that there is no distinction between the occupier of licensed premises and any other occupier in terms of the capacity to exercise control, which is either by refusing permission to enter or requesting that somebody leave, and that when one goes beyond that and looks at premises on which there is a foreseeable risk of criminal behaviour, we do not, except in degrees of possibility, find any unique feature of licensed premises.  Criminal behaviour by one patron against another is not unique in terms of licensed premises and there will be many examples of unlicensed premises where the probably of criminal activity will be higher than on many types of licensed premises.

GUMMOW J:   Do you not have to consider whether this is analogous in some way to Pyrenees v Day, namely, the statute either recognises and, in this case, backs up the recognition with a statutory requirement in those two sections which give a significant and special measure of control – impose that upon the licensee as the price for having a licence?

MR SEXTON:   Your Honour, there is no, with respect, special measure of control because it is the same measure of control that any occupier exercises.

GUMMOW J:   No.  It is backed with these various provisions which hinge upon the continued retention of the licence.

MR SEXTON:   Your Honour, I would ‑ ‑ ‑

GUMMOW J:   Without the licence, you are out of business, really.

MR SEXTON:   That is so, your Honour, but I would accept what your Honour said ‑ ‑ ‑

GUMMOW J:   I am not saying it is right or wrong, but that is the sort of area you have got to get into.  You have got to get into cases like Pyrenees and Crimmins and so on, where the statute is used to see something special in the terms of creation of control.

MR SEXTON:   My answer is that the statute does not create any additional power or capacity to control.  It recognises the existing, but it does not add anything, it does not confer on an occupier of licensed premises any greater power, or any additional power to remove somebody, than that which is enjoyed by any occupier.

HAYNE J:   But the ordinary household is not under a statutory obligation not to permit indecent, violent or quarrelsome conduct on his or her premises.  That is the point that is being put.

MR SEXTON:   I understand that, your Honour.

GUMMOW J:   When Justice Gaudron is talking in Modbury, for example, about special knowledge, assumption of responsibility, here the assumption is by force of the statute.  That seems to me a question.

MR SEXTON:   The responsibility imposed by the statute – I am repeating myself now, but it sounds in criminal sanctions or in removal of the licence so it still raises the question whether, in relation to this particular statutory provision, it should carry with it the imposition of a duty of care, and ‑ ‑ ‑

GUMMOW J:   Of course it does.

MR SEXTON:   The reasons, your Honour, that we say it does not is because of the multitude of licensed premises in which this type of consideration will almost never occur.  It imposes a duty on the proprietors of all licensed premises, however small, however quiet, however remote, to then engage in the exercise of determining what is a reasonable response to unpredictable criminal activity which may occur anywhere, at any time.  It is for that reason that we submit that the duty should not be imposed, notwithstanding the provisions of the Liquor Act on occupiers of licensed premises, because it is the nature of the problem that has to be dealt with, which in my submission, is the reason that Modbury dealt with the issue that Modbury was considering at the level of duty, rather than at the level of breach.

Your Honours, they are submissions about whether there should be a duty at all.  I cannot advance anything other than – it is a difficulty of dealing with criminal behaviour that leads to that conclusion.  The next issue, though, is, assuming a duty, what is the scope of it?  This raises the issue of whether the scope of the duty can extend to the requirement to provide licensed security guards or whether the scope of the duty is reflected in the statute, which is the source of the duty once we get to this point, which contemplates the occupier exercising its entitlement, whether statutory or otherwise, to request somebody to leave, to use reasonable force and to call the police.

What we are dealing with, as I said earlier, is the capacity not to control somebody in the way a parent is expected to control a child or a gaoler controls a prisoner, but simply control in the sense of asking somebody to leave if it becomes apparent that they are or likely to misbehave or telling somebody that they cannot come in.  In the same way that, for example, in Mulligan v Coffs Harbour where the scope of the duty did not extend to giving a warning about the depth of the water, in our submission, the scope or the content of the duty requires no more than that when there is an indication one way or another of a particular problem with a particular patron that the licensee or the occupier of the premises then exercise its power of control by requesting that the person leave and if they do not, calling the police.  But it does not entail an assessment of whether prophylactically additional security guards need be employed against the random and unpredictable possibility that violent criminal behaviour may occur on any particular premises.

This issue has been somewhat clouded in the cases at intermediate level because often what has been involved has been premises which, for reasons quite apart from an obligation to do so, have engaged security staff.  We give an example in our written submissions of a bank which may well engage security staff to protect its employees or to protect cash on the premises.  That does not carry with it either recognition of a duty that a bank should provide security guards to protect customers or that the provision of security guards is a reasonable response.  It deals with two aspects of the matter.

HAYNE J:   There seem to be at least three ideas in play in this part of the debate.  Should there be designated persons controlling entry?  Should there be designated persons controlling what is happening within the premises?  Should either or both of those classes of persons have the capacity to enforce it?  That is, should you have someone on the door?  Should the person on the door be big enough and imposing enough to make a suggestion that would be complied with?  Should you have people on the floor who are controlling, observing, seeing what is happening?  Should they be of a kind who might make suggestions that would be followed?

MR SEXTON:   Yes, your Honour.

HAYNE J:   Now, are all of those ideas in play?

MR SEXTON:   Yes, your Honour, plus the other idea that if you are considering those aspects in relation to any particular premises you have to look at it in the context of what the reasonable expectation is about the need for it.  Now, there appear to be suggestions in the respondent’s submissions that if there is any history or even if there is not any history but there is a possibility that there may be misbehaviour, then there needs to be access control, there needs to be supervision or monitoring elsewhere.  What I am endeavouring to do is to take it back a step and consider it in terms of whether such a duty is imposed or should be imposed generally so that the proprietor of a small restaurant – not in Punchbowl but somewhere else – because it is not far‑fetched and fanciful that there may be violent behaviour, has to make an assessment of whether to have a staff member or an independent contractor monitoring access, actively monitoring patrons at all times, or whether the scope of the duty is sufficient if when a problem arises there is a response to it.

It is of fundamental importance in this case because the nature of the events on the particular night were such that certainly one would expect you would need at least one or two people constantly at the door and, so far as the earlier altercation is concerned, it seemed to be the opinion of Mr Jennings, the expert qualified by the respondents, that one would need six to eight people engaged on the premises.  This is in circumstances I mentioned earlier where this was the type of function, namely, a New Year’s Eve function, attended by family groups; a similar sort of function had been held for years previously, there had never been any trouble.

True it is there had been incidents when these premises were being used for a different type of function and true it is that there were some rather extraordinary incidents in the street outside, but one has to concentrate on the particular event.  It points out that in most licensed premises, restaurants, private clubs, hotels, there is not a need for the engagement of dedicated security guards because incidents do not occur, but in terms of legal analysis they are not far‑fetched and fanciful and they would require, if the scope extends to the provision of security guards in case the random or unpredictable happened, that sort of provision in many cases.  We keep coming back to the randomness and unpredictability and irrational nature of violent criminal behaviour.

FRENCH CJ:   The scope of the duty may be influenced or determined by reference to the nature of the function.  We are not talking about something which has the same application to a nightclub in Punchbowl as it does to a licensed restaurant somewhere else.  It does not have to be defined, does it, by reference to the extreme event, that is, somebody walking in with a gun and shooting people?  There would be a question whether, had a duty of providing some sort of security measure been recognised and implemented, there might be a causation question, which is a separate issue, of course.  But one does judge it, does it not, in prospect by reference to the kind of function and then the probability of different things happening, as I mentioned to you before?

MR SEXTON:   Yes, your Honour, but what I am addressing is whether the scope of a duty is limited to an occupier or licensee taking the steps contemplated by the licensing legislation with staff who are there to do or carry out the normal activities.  In other words, whether it is enough for the proprietors, if they be there, or the manager or the bar staff or the waitresses or the two women who in this case were collecting money in any event to, if there is a problem, request that somebody not enter or leave and call police, or whether the duty extends to an assessment in the way your Honour was just outlining of whether additional dedicated security staff are required.

HAYNE J:   How is that question which you describe as a question about scope of duty to be answered?  In particular, is it to be answered in some manner different from Wyong v Shirt, that is, are you suggesting some answer by applying principles other than Wyong v Shirt principles to this inquiry?

MR SEXTON:   Yes, your Honour, in the sense that in Wagstaff v Haslam and other cases in the New South Wales Court of Appeal it has been said that the duty requires intoxication and knowledge, whether actual knowledge or ought to know, of the propensity for violence of the particular assailant.  So that the duty does not require that security guards, dedicated security staff, be provided against the possibility that there may be misbehaviour in that Wyong v Shirt sense, but instead the duty is limited to situations in which the occupier knows or should know that there is a problem.  That, in our submission, is consistent with the licensing legislation which is, by the time we get to this point, the basis of the duty because that licensing legislation specifically assumes that the main way in which an occupier will deal with the problem is by calling the police who would have a duty to respond.

GUMMOW J:   Was any attention given to section 5B of the Civil Liability Act?  Am I right in thinking it was in force at the relevant time?  It was, was it not?

MR SEXTON:   The direct answer to your Honour’s question is no, there was not any specific ‑ ‑ ‑

GUMMOW J:   Then how can we talk generally about Wyong v Shirt without attending to section 5B?

MR SEXTON:   The direct answer to your Honour’s question is we cannot, but the additional answer is that it seems to have been accepted, at least in the Court of Appeal in New South Wales, that section 5B does not add to the Wyong v Shirt – I know “calculus” is a bad word – but to the consideration.

GUMMOW J:   It does not matter.  You have a statute with a section.  It may be old fashioned – and I think you read that.

MR SEXTON:   Yes, your Honour.

GUMMOW J:   It may be a totally eccentric and black‑letter view of things, but the New South Wales Parliament has laboured away and produced section 5B after these intensive inquiries by this committee.

MR SEXTON:   Your Honour, the first thing to observe is that section 5B speaks of a person not being negligent, so it is not apparent from the express words of the statute whether it is dealing with a duty or a breach or both.

GUMMOW J:   That is right.

MR SEXTON:   Certainly in subsection (2)(a) it puts it at the head of the list in terms of whether it is reasonable that a person would have taken precautions against the risk of harm.  The consideration is the probability that the harm would occur if care were not taken, then, of course, as in Wyong v Shirt, the likely seriousness of a harm, the burden of taking precautions and the social utility of the activity that creates the risk of harm.  The question of the social utility of licensed premises no doubt varies depending on what type of premises they are.

We have emphasised, so far as breach is concerned, that the error, in our submission, is that the Court of Appeal and the primary judge took too much from a small number of incidents some time before and did not pay any or sufficient attention to the probability that there would be any sort of violent behaviour at what was essentially a family – or it was a function attended by family groups – and in circumstances in which there had been no previous incident at a function of that type at these premises previously.  It appears that section 5B is directed more at breach than at duty, given the matters set out ‑ ‑ ‑

FRENCH CJ:   The Division is rather misleadingly entitled, is it not?

FRENCH CJ:   The division is rather misleading entitled, is it not?

MR SEXTON:   Perhaps, your Honour, but nevertheless, it has not been suggested, and I am not, at the moment, putting the proposition that 5B converts the Wyong v Shirt inquiry into a question of whether there is a duty owed at all, as opposed to a question of breach.

HAYNE J:   Do you say 5B speaks at all to either the existence of duty or scope of duty in this case?

MR SEXTON:   Yes it does, your Honour, because subsection (2)(a) speaks of probability of harm, and as I endeavoured to say to your Honours earlier, when one is looking at the question of whether a duty is imposed on all occupiers of all licensed premises because of the provisions of the licensing legislation, one has to take into account that whilst it is not far‑fetched or fanciful, the incidence of violence at many licensed premises, and the incidence of violence, even at those which may have a reputation, is low.

It is not an everyday part of the operation of licensed premises that violence occurs.  It is not unique to licensed premises when violence occurs.  Violent criminal activity is a problem for society, generally, in all sorts of situations, and it is not a matter of simply degrees of possibility, it is a question of whether the degree of probability of harm at licensed premises is sufficient to impose a duty on occupiers of licensed premises, which would not impose on occupiers generally.

FRENCH CJ:   I think we are in that limb of your argument which assumes the existence of a duty, contrary to your primary submissions, and looks to the scope.

MR SEXTON:   That is so, your Honour, but Justice Hayne asked whether it‑ ‑ ‑

FRENCH CJ:   Yes, here one is looking to the Wyong v Shirt or 5B(2), the combination of considerations of probability and seriousness of outcome if an event occurs and that depends very much upon the circumstances of the occasion, the nature of the premises.  A New Year’s Eve function which goes until potentially 4.00 am is a very different consideration in prospect from a 60th birthday party at a small café.

MR SEXTON:   That is so, your Honour, but it does not follow that at every function at which there is a large number of people and alcohol is served till the early hours that there is anything more than a very remote possibility of violence.  Despite some of the observations about it being highly foreseeable that violence can occur on premises at which alcohol is served, it is not something which is a daily incident of every licensed premises, or very few of them and it is not unique to licensed premises.

Can I take your Honours briefly, in relation to breach, to some of the evidence concerning the nature of this function?  There were a number of statements – before I do that, perhaps can I say something briefly about the evidence about the consumption of alcohol during this function because it is relevant to the nature of the function?

Firstly, there were seven witnesses who either orally or through statements gave evidence about their attendance at the function.  Only two of them, that is, Mr Bou Najem, one of the respondents, and Mr Moubarak, said that they had anything to drink and both of them said that they had three or four drinks.  Mr Elbaz – who I will come to in a moment – his daughter, Olivia, said that they did not drink and neither did Olivia’s sister or her friend.  So that there was, contrary to what is suggested in the Moubarak submissions, not evidence which supported these premises being ones at which people were intoxicated, or until the fight on the dance floor started, behaving in a way that demonstrated intoxication and therefore increased propensity for violence.

Your Honours, at page 377 in volume 2 of the appeal books there is a somewhat indistinct photograph which was taken at some point during the evening.  That is the photograph which Justice Giles referred to as showing revellers.  In our submission, it does show that the premises were full, people were sitting closely together, but it does not demonstrate frenetic activity.  At page 379 there is a statement from Mr Elbaz, and these submissions go to the nature of the function, the type of people that would be expected to be at this function, when we are considering breach.  Page 379 just below line 30, Mr Elbaz says:

2.I am 56 years of age . . . 

3.         Every Saturday night, my wife Aida and I go to Adeel’s Palace in Punchbowl.  It is a nightclub and restaurant that serves Lebanese food.  Sometimes my two daughters come with us but this would only be about every three or four weeks.  My [daughters] are Olivia who is 23 years old and Amanda who is 16 years old.  I also have two sons but they never come with us.

At line 50, he decided with his daughters to go to the New Year’s Eve function, and then page 380:

6.        I sat at the table all night.  I don’t drink alcohol or smoke cigarettes.  I didn’t talk to anyone during the night.  That is my life, I don’t like to mix with people -

He knew the proprietors – at page 384, the evidence that Olivia Elbaz is the daughter - similar sort of evidence, paragraphs 3, 4 and 5 -

7.        I didn’t drink whilst I was there neither did my sister, parents or friend.  Whilst there I saw similar faces of people I have seen before.  I usually stick to myself and my family.

Paragraphs 9 and 10 show the way in which the fight on the dance floor commenced.  At page 397, Mr Bou Najem says in paragraph 3 that he is invited to go to this function by a friend of his:

He suggested to me that if I was not doing anything I should come along and be with his family.

At paragraph 6 on page 398:

As I entered the club I saw that it was full, it looked like there were about 250 to 300 people at the club –

That is in the context that the licence had a capacity of 295 people.

I could see that there were young children, people my age, other both older and younger than myself of both sexes . . . 

Nicoula had his whole family there, including his children . . . 

had about three to four Jim Beam and Lemonade with ice.  These drinks were not strong . . . 

Everyone in the club was happy and enjoying themselves, when midnight came around we all celebrated the New Year.  People were kiss and hugging and having a good time.

Then he gives a description in paragraphs 12 and 13 of the fight starting, and he mentions there at the end of paragraph 12 that children were apparently still there, because he could hear them screaming.

At 393, I overlooked this, your Honours, Zari Ebrahimi, who was another guest, in paragraph 3 said that she went there with her husband, her daughter and her friend, that they visit every Saturday night, sit on the same table on each occasion:

We had something to eat and drink as well as watching the band that were playing.

Then Mr Moubarak’s oral evidence starts in volume 1 at page 66.  At about line 55 he says he made a decision to go to that function:

Well, my parents made the decision and my mother and dad and I was going to go along with them.

Then:

The family made the decision.  That’s right.

On the next page at about line 15:

We’d been going there for a few years.

He said he had not been there on a New Year’s Eve before:

What sort of functions had you attended there on the occasions you’d been?
A.       Birthday parties, christenings.

Just above line 30:

We had a table so we came as a group.

At page 69 between lines 10 and 20 he recognised friends and family.  At page 121 he was being cross‑examined, he was asked again about going to weddings and christenings.  He said his parents regularly went to the premises but they went there without him.  Then at page 123 he said that there were 30 people on the table, friends and family, the parents were in their 50s, there were children there, elderly people, a full range of family members, other tables were the same sort of size with a “full range of family members, elderly people, middle‑aged people, young people” who had never seen the gunman before.  At page 125 above line 10 again, he had been to weddings and christenings and then evidence about security guards on other occasions.  At line 20:

Q.       So sometimes there were security apparently employed and sometimes not.  Is that right?
A.       Yes.

So, your Honours, it was that type of evidence about this particular function which, in our submission, both the primary judge and the Court of Appeal either had no regard to or had insufficient regard to in balancing the question of the probability of there being misbehaviour, including violent behaviour, at this particular function which would require the provision of licensed security guards as opposed to simply other employees of the business if there was a problem asking for somebody to leave, which had happened in relation to one person earlier on this particular evening in any event.

Your Honours, can I now turn to the issue of causation?  Our submission in relation to causation is that the error in both of the courts below was the failure to address the evidence which came from what actually occurred concerning the irrationality and the determination of the gunman.  This is in the context that the Court of Appeal found, although the primary judge had not, that what was required at least was access control at the front door, probably two guards, and the issue is whether in circumstances in which the gunman came back into the club, shot Mr Bou Najem who he had never seen before, notwithstanding the pleas from Mr Bou Najem not to shoot him and the fact that Mr Bou Najem was lying on his back on the floor, and then he sought out Mr Moubarak and shot him, whether unarmed security guards at the front door would have made any difference.

This raises a question about what is required as a matter of principle in terms of proving causation and, in our submission, this falls into the sufficient reason to the contrary concept referred to by Chief Justice Dixon in Betts v Whittingslowe in terms of when it is permissible to draw an inference or reach a conclusion that if there is a breach and the risk eventuates that causation in fact is established.  The error, as I have said, so far as the courts below is concerned, is in not addressing the matters that I just identified. 

In our submission, it is whether the test review is that identified by Justice Heydon and Justice Callinan in Dederer or whether it is the requirement that there be a clear error.  In our submission, both of those tests are met in this case because it is clearly, in our submission, a matter of speculation as to what would have happened if unarmed doormen had been there in circumstances where a very determined and clearly irrational person had gone outside to get a gun for the purpose of reprisal, had been requested not to enter or some physical but unarmed intervention had taken place.

HEYDON J:   Did Mr Jennings give any evidence as to industry practice in terms of searching, personal searching of persons who wish to enter?

MR SEXTON:   He gave some evidence about searching, but he did not say that it was a uniform practice and there was some cross-examination about whether it was reasonable for proprietors to take into account whether the patrons would like being searched in terms of deciding whether or not people should be searched.  In terms of causation, our submission is that even if unarmed security guards had said, “Empty your pockets”, that it would not have prevented this determined man from exacting revenge, which is clearly what he was about.

It is suggested in the submissions by the Moubarak respondent at paragraph 45 that it was not suggested to either of the security experts called that the presence of security would have made no difference to the eventual result.  Strictly, that may be so, but what was put to Mr Jennings repeatedly was that it was a matter of speculation as to what would have occurred if there had been an attempt by unarmed security guards to prevent re-entry, this being in the context that Mr Jennings had expressed, and this is the passage that is picked up by the primary judge in paragraph 65 of his reasons at page 606 of volume 2 of the appeal books.

HEYDON J:   “Should not have been permitted to leave” the venue”.

MR SEXTON:   And re‑enter – leave the premises, your Honour.

HEYDON J:   Apparently it would have answered the duty if he had been arrested on the way out.

MR SEXTON:   There are two difficulties with that.  One is that the statutory power and the usual rights of an occupier do not extend to preventing somebody leaving as opposed to ejecting them.  The main point, and the point on which the Court of Appeal determined this issue, is that the plaintiff should not have been permitted to re‑enter the venue.

FRENCH CJ:   Importantly, there is a finding – the Court of Appeal seems to have reconstructed the primary judge’s reasoning on this and then attributed to him a finding at 692 at 107, I think:

On the balance of probabilities, security staff at the street entrance would have deterred or prevented Mr Abbas’ re‑entry –

et cetera.  Does your submission in relation to that amount to anything more than that there was no sufficient evidential basis for that conclusion?

MR SEXTON:   Yes, your Honour, and further that the error in the Court of Appeal’s reasons was not to deal with the submissions that had been made both at first instance and before the Court of Appeal and repeated again in this Court that the actual behaviour of the gunman in going and getting a gun, re‑entering the premises and shooting two people in front of many witnesses showed a degree of determination and irrational behaviour.

FRENCH CJ:   You would say the evidence pointed the other way.

MR SEXTON:   Yes, your Honour.  So that, firstly, the Court of Appeal had to deal with that and did not, in our submission; and secondly, it precludes, in our submission, a common sense finding about what would have occurred if the reasonable response had required unarmed security guards at the door.  It is really as simple as that, your Honour, that one cannot assume that a criminal – and Justice Callinan observed in Modbury that criminal activity can occur even in situations of high security, it does not follow that because security is provided that there will be prevention.

Betts v Whittingslowe involved the question of whether a guard or machinery would have prevented the injury which occurred to the plaintiff because the machinery was unguarded.  That is a completely different type of factual scenario to the question of whether any particular preventative action would preclude a criminal from carrying out what he appears to have been determined to carry out.  It is one thing to say that if a bank puts money in a safe that may prevent somebody doing something with it.  It is another thing to draw an inference which depends upon an assumption that somebody will react in a rational way when there is evidence which demonstrates the irrationality of their behaviour.

Your Honours, the next question is the contractual warranty issue which is raised by the two notices of contention.  Do your Honours wish me to deal with that now or to ‑ ‑ ‑

FRENCH CJ:   You can proceed now if you wish, Mr Sexton.

MR SEXTON:   Thank you, your Honour.  The issue, your Honours, is whether the contractual relationship issue arises because of the payment of a cover charge results in there being a contractual warranty which imposes an implied obligation which goes beyond that which would be imposed on the appellant in any event under the duty of care and our submission in that regard is that the contractual warranty which was set out ‑ ‑ ‑

HEYDON J:   We are talking about a section 74 warranty, are we, or ‑ ‑ ‑

MR SEXTON:   No, your Honour, at the moment we are talking about the Watson v George implied term.

FRENCH CJ:   It is page 3, I think, in the pleading, paragraph 6.

MR SEXTON:   Yes, your Honour.  The question is whether an implied contractual warranty to make the premises safe for the purpose of the contractor’s reasonable care on the part of anyone who could make them extends to protection from criminal activity or other activities of other patrons as opposed to a physical state and condition of the premises.  All of the cases which have considered the contractual warranty, as stated in Watson v George, have been cases involving the physical state and condition of the premises. 

In Calvert v Stullznow, which is referred to in paragraph 10 of our submissions in reply in Moubarak proceedings, the New South Wales Court of Appeal, Justice Samuels said two things.  Firstly, that the warranty is only implied into contracts where the contract involves a payment for access to the premises as opposed to the situation in which somebody goes, and the example there was a restaurant, onto the premises and buys a meal or a drink, but, secondly, it was referred to there as being a warranty in relation to structural integrity.

We then on that point go back to the submissions made earlier about why there is not a duty of care in tort and rely on the same propositions for the submission that there is no reason to extend the implied contractual obligation in the way contended for by the respondents if there is not a tort obligation which would cover this type of obligation in any event.  Then, your Honours, both in relation to that implied contractual warranty and in relation to the statutory implied warranty under section 74(1) of the Trade Practices Act, both import the concept of reasonableness as opposed to being absolute promises to prevent injury from criminal activity.

So that again we repeat our submissions in relation to breach, and in our submission, there is no difference in terms of causation between a breach of the contractual warranty and a breach of the tort duty, at least in the way that this case has been conducted because both breach of the contractual warranty and of the tort duty said to be in terms of the failure to provide access control so that we end up with the same issue so far as causation is concerned.

FRENCH CJ:   You say that your success on the appeal would necessarily mean success in relation to the contention?

MR SEXTON:   Yes, your Honour.  They are my submissions, your Honour.

FRENCH CJ:   Thank you very much.  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, like all cases which rely on an analysis of the law of tort this case is one which cannot be decided in a vacuum.  It is no good getting out your textbook or getting out the last 50 years of the Commonwealth Law Reports and looking at the cases.  You have to first know what the facts show and then point to the law as it applies to them.  In this case my learned friend has substantially depreciated the knowledge and the nature of activities which actually occurred on those premises on that night.

In the first place - and I will make these submissions good by taking your Honours to the facts but I will set them out - at about 12.30 there was some sort of altercation on the premises which caused a Mr Kouzi, who was one of the owners and who was the cook on the night, to escort someone off the premises.  Now, Mr Kouzi says “There were one or two people talking to one another so I took one off the premises” and that is – we say you can read a bit more into talking to one another than having an amicable conversation.

In the expert report of Mr Zalewski, who was retained by the defendant, there is a reference to four to seven people having a scuffle on the premises before the incident which led to Mr Moubarak’s injury.

HEYDON J:   What page is that, Mr Toomey?

MR TOOMEY:   I am sorry, your Honour, I will give you that.  The report starts at 553, your Honour – no, the joint appeal book at 561, your Honours, at 14.22.

HEYDON J:   He says “there was a scuffle”.  Did he see it, or is that an assumption?

MR TOOMEY:   Your Honour, he was ‑ ‑ ‑

HEYDON J:   “I am asked to assume the following facts”, he says ‑ ‑ ‑

MR TOOMEY:   No, with respect, your Honour, that runs out at a point before he makes the statement about the scuffle.  On 559, he says at 14:

In relation to this particular case, I am asked to assume the following facts -

but then he goes down to 14.19 on the next page, and says:

We note the following further matters in relation to the security arrangements for the premises -

and we say that does not appear to come within the assumptions.  We would say it amounts to statements of fact made to him by the people for whom he is giving the report.

HEYDON J:   That is, a hearsay statement.

MR TOOMEY:   Yes, but it is in, your Honour, and there is something to hang it on because Mr Kouzi, who gave evidence, said that there was this earlier altercation:

a scuffle inside the venue involving between four and seven men.  Security asked one or more of the men involved to leave the venue and they left.

Of course, there was no security.  Then at 509 in appeal book 2, this is a police COPS entry and is a business record:

CIDS Incident:  BRAWL

That is a reported incident.  At about line 20:

ADEELSTALCE PALACE – 20 MALES FIGHTING
           LARGE BRAWL

created “01/01/2003” which is the night in question, “1.43”.  It has attendance details “01:47 to 01:53”.  So before the incident which brings us before this Court, which occurred at about 2.42, there was an incident for which there is some evidence – there is the hearsay evidence, as your Honour Justice Heydon points out – of Mr Zalewski’s report.  There is the direct evidence of Mr Kouzi that “Some people were talking to one another and I showed one out”.  There is the police record of the report of a large ball at the premises, at Adeels Palace.

HAYNE J:   Four minutes later it is reported as “NO PERSONS FIGHTING.  PERSONS WERE DISPERSED”. 

MR TOOMEY:   By PA, your Honour, yes.  Well, by the time they got there no persons were fighting, but there was a report.  Someone thought it was important enough to report to the police that there were 20 persons fighting.  This is in the context, may I remind your Honours, that this was really a bit like going to see the crib on Christmas Day, this place.  There were the children and the old people and it was really a lovely, quiet night.  If you read the reports of the people who were there as to what happened during the quiet night once the fighting broke out, you would think that these people were not gentle, law‑abiding citizens at all. 

FRENCH CJ:   How does this inform your argument about duty of care?

MR TOOMEY:   Your Honour, it informs our argument because if there were matters before the incident which caused the injury to the respondent, which should have put those in charge of the premises that it was fraught, on edge, that there were people who were prepared to act violently, then they should have done something about it long before ‑ ‑ ‑

FRENCH CJ:   Was that how you ran your case?  Is that how the case was run?

MR TOOMEY:   It was part of our case, your Honour.

FRENCH CJ:   What, that they should have done something as events unfolded during the night?

MR TOOMEY:   Yes.  That they should have had ‑ ‑ ‑

CRENNAN J:   It is not just about access control, but about control of the ‑ ‑ ‑

MR TOOMEY:   Your Honour, of course if it had got bad enough – and we cannot suggest that it did – but had it got bad enough, they would have had to close the premises.

HAYNE J:   Good luck closing the premises if the premises were inhabited by people of the kind that you describe.  Your case is that these are people who are not tractable.  You are straddling two very distant poles, Mr Toomey.

MR TOOMEY:   Your Honour, our case is that the people were of such a nature that there should have been security there.  That is our case.  Our case was that if you had had some large chaps, perhaps from the Pacific Islands who appear to be the best, on the premises instant action to prevent what was foreseeable, that is the eruption of some sort of thing.  It is 2.40 in the morning.  The premises opened, I think, before 10.  The suggestion of my learned friend that really there was no alcohol there is negatived by the fact that on every table, according to the unchallenged evidence, there was a bottle of whisky.

HAYNE J:   But these are decisions to have security that would have to be taken days before.  What are the circumstances that you say lead to the conclusion that there should have been security personnel there?

MR TOOMEY:   We say that there are going to be 300 or 400 people there, depending on your acceptance of the evidence.  There is evidence that there were about 300, there is evidence that it was full to capacity, which is more than 300, that they would be in a position where they could buy drink either from the bar or from the waiters until 4 o’clock in the morning and, in our respectful submission, the real possibility, not just a faint possibility, but the real possibility in those circumstances that there could be violent incidents during the night.

HAYNE J:   But, Mr Toomey, I want to understand quite plainly, do you say that the combination of numbers plus licence to serve liquor until 4.00 leads to the conclusion security must be provided?  I want you to list comprehensively the matters which you say bore upon the decision made before New Year’s Eve whether security should be engaged or no.  You have mentioned numbers, alcohol, length of service.  I understand that.  I am not saying that the argument is wrong.  I just want to know what the argument is.

MR TOOMEY:   I understand what your Honour says.  We listed in our submissions in paragraph 14 the matters which we say led to liability.  We say in broad terms, and I will narrow them down, that the occupier created the milieu which led to the violence by gathering 300 or more people in a room for many hours until the early hours of the morning while plying them with alcohol.  My learned friend objects to the plying them with alcohol.  There was a bar from which they could buy liquor.  There were waiters who served liquor to the tables and every table had a bottle of whisky on it.  No one was forcing them to drink but they were there for the purposes of a celebratory occasion and it would be highly unlikely if a large number of them did not drink. 

There was the fact that the appellant gave extraordinary information to the respondent, which is reproduced at pages 519 and 520.  Some particulars of the defence were sought by my instructing solicitors.  Did they have security guards, what were their duties, did they eject the perpetrator, how was it he was allowed to return, what steps were taken, et cetera.  The answer addressed affectionately to my instructing solicitor as “Dear Tony”:

We refer to the above matter and your letter dated 9 November 2006.

We provide the following in response:‑

1.There were at least two security guards retained by the Defendant . . . In addition, the proprietors of the business actively participated . . . 

2.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.

The steps taken by the security guards was:

Ensuring that ejected patrons were refused entry to the Defendant’s premises ‑

That was their responsibility –

Generally speaking, a patron ejected from the premises was not allowed to re‑enter.

This does not directly answer the question that your Honour asked of me, but it is an absolute fabrication by the defendant of what the situation was that night, because there were not any security guards there at all.

CRENNAN J:   I may be wrong about this, but I thought the evidence was that there was a single security guard only who was injured during the course of the night and went off to hospital.

MR TOOMEY:   I thought he was sick, your Honour, but your Honour may be right.

CRENNAN J:   I thought he had contact with a chair.

MR TOOMEY:   There is no evidence about it, your Honour.  It was an assumption somewhere, there was no evidence that that was the fact, anywhere.

CRENNAN J:   I see.

MR TOOMEY:   It was found by both the trial judge and the Court of Appeal that there were no security guards and there is no appeal against that finding.

CRENNAN J:   Yes, very well.

MR TOOMEY:   But, your Honours, the question that I have been asked goes to the foundation of the duty.  We say that there should have been security guards there because of the nature of the occasion, and if your Honour puts to me, as I see you are going to do, “Do you say that generally?”  I say generally an occasion of this size, of this nature, there would be a general duty for there to be security guards there.  However, we go beyond that and say that in the circumstances in this case there were opportunities for the owners of the premises to do something anyway.

Had the security guards been there at the time the incident happened they could have stopped the initial fight between, it appears, a group of four women on the dance floor when one brushed the hand of another with her lighted cigarette.  That escalated.  There can be no precise proof of how long the events took, but one person called Mr Toauk, who was an eyewitness and who gave oral evidence, said that in his view, it took 10 to 20 minutes between the start of the brawl until the shooting.

If I can take your Honours to some of the material which outlines the concatenation of events, it will be seen, in our respectful submission, that it could not have happened in two or three minutes.  Mr Moubarak, the respondent, at 85, 50, had given evidence that he had gone out with his girlfriend for a cigarette and a walk.  At line 40:

Q.       Do you remember how long you stayed outside . . . 
A.       It was probably about . . . 20 minutes.

Q.       When you came back did you go back to your table?
A.       That’s right.

Q.       Did you sit down again?
A.       That’s right.

Q.       Same seats that you’d been in before?
A.       That’s right.

Then there is an obscure question.  He had seen no disturbance before he went out with his girlfriend or up to the point when he returned.  He noticed something coming from the dance floor.

It was my sister’s friend and my sister on the dance floor.  They went into a little scuffle . . . 

Q.       You saw a scuffle . . . 

Q.       What were they doing?
A.       Just like pushing and shoving . . . 

Q.       Could you make out the content of any of the noise that was emanating from their mouths or not?
A.       I could hear from the girls, both girls.

That would appear to be screaming.  Could not hear the words.  It was his younger sister, Leila, who was involved with her friend, Michliene.  There were a couple of other girls there.

A.       Yeah, they were trying to attack each other . . . 

A.       The girls were attacking my sister and Michliene.

HIS HONOUR

Q.       So other girls were attacking your sister? . . . 

A.       My sister was trying to break them up sort of thing.

Q.       So did you then decide to do something?
A.       Yep . . . 

A.       Go and get my sister.

Q.       So you went towards the dance floor where they were?
 . . . 

Q.       Did you arrive where they were?
 . . . 

A.       I grabbed my sister and took her back to the table.

. . . 
A.       Well, there was my father and Fouad –

Fouad was Mr Kouzi who was the joint owner – were at the table –

they all got up . . . 

Q.       And you went there and the three of you, as it were, separated those that were involved.
A.       That’s right.

Q.       You took your sister back to the table.
A.       That’s right.

Michliene was there –

Q.       Did you then hear something else happen?
A.       Well, I heard more screaming then I started seeing people gathering in crowds and I started seeing chairs getting thrown.

Q.       Did you hear something in relation to the chairs being thrown?
A.       I started hearing things breaking, sounded like glass

. . . 
I seen my father, and that’s what made me go to get my father.  I seen him in the far corner on right‑hand side of the club, so I went to get my father because I seen him around where the crowd was and he was right away from where our table was.  It was on the other side of the club.

. . . 
A.       He was pretty much trying to calm things down.  They do gestures – the elderly people you know -

He went across to the far corner where his father was –

A.       He was on his own in the far corner and he was surrounded by a crowd of people – and chairs are getting thrown and I wanted to go and get my dad.  Can’t leave him there by himself.

. . . 
A.       As I was getting there it was only a short distance before I got to my dad and I got grabbed.

. . . 
A.       On my left wrist.

. . . 
A.       Once he grabbed me I looked at him . . . 

I said to him, “It’s got nothing to do with you, I need to get my father.”

This was the gunman, as later appears.  He pulled his hand away, and at line 30:

Q.       What did he do?
A.       He took a swing at me.

. . . in self‑defence I punched him back.

. . . 
A.       In the face . . . 

bridge of the nose . . . 

upper eye area.  In the meantime, he was throwing punches back at me.

. . . 
A.       I get another chair thrown at me by someone.  I don’t know who it was, another guy, and then the guy that I had hit, he had left and then by that time I looked back to see where my father was –

Your Honours, there is other evidence to which I will take you, which is perhaps even more discursive, but you are not talking about a fight which happens and is over in 30 seconds.  Had there been security officers there, it would surely be probable that when the scuffle started on the dance floor that they would have stepped in and counted down immediately.  It is also, in our respectful submission, pretty well certain, on the expert evidence of Jennings and Zalewski, that a man with blood on his face who had tried to go out would not have been allowed to go out.  One of the things you do not do, from the expert reports, is that you do not allow people to get out, for all sorts of reasons.  You have got to lock it up; you have got to close it down.  But had he got out, you certainly would not have allowed him to come back in again.  Had there been security guards there, one of the duties which Mr Kouzi, the owner, said the security guards performed, was to keep an eye on the car park which was right in front of it.

The overwhelming inference from the departure of the assailant from the club and his return a minute or so later is that he went to a car and got his gun.  He is then seen on the poor‑quality closed‑circuit television coming up the stairs with something in his hand.  You cannot see that it is a gun and my learned friend, Mr Sexton, when this was being agitated at the trial, helpfully suggested to his Honour that it could be a mobile phone.

FRENCH CJ:   He was seen to put whatever it was in his waistband, was he not?

MR TOOMEY:   Yes, he was.  I am as yet unaware of a mobile phone which fires bullets.  In any event, he came up, he is seen on the stairs with something in his hand, he has left the premises, he has blood on his face, he comes back in with blood on his face and he starts hunting down certainly the first respondent and, in the course of lining him up, he shoots the second respondent.

FRENCH CJ:   This is telling us all about the character of the events which occurred.  Is this going to causation or something else?

MR TOOMEY:   Yes, it does go to causation, your Honour.  The major complaint is that there was no one there looking after security.  The general description of the events that I have given, in our respectful submission, suggests that had there been security men there the shooting would never have occurred.  May I remind your Honours that the phrase used in Moubarak was whether there was a duty to hinder or prevent.  Your Honour Justice Hayne gave some weight to that in, I think, paragraph 109 in Moubarak.

FRENCH CJ:   Modbury, you mean.

MR TOOMEY:   Modbury – I am sorry, your Honour.  I have been doing that all day.  In a New South Wales case called Drakulic, in which your Honour Justice Heydon sat on the New South Wales Court of Appeal, you dealt at length in paragraphs 94 and 95 with that phrase “hinder and prevent” and you actually went to the meaning of “hinder”.  It is on our list, your Honours.  It is paragraphs 94 and 95 where your Honour dealt with that.

We say that what can be said about this case is that had there been security guards there, the chain of events would not have been the same.  One gets to the position then of saying once the negligent failure to provide security guards is proved, there must surely be some evidentiary onus on the defendant to prove that had they been there, the events would still have happened.  My learned friend attempts to do that by saying that this man was mad, deranged, all sorts of adjectives are used, but he says it would not have been any good, he just would have gone ahead and done it.  If you had had two trained security men then there, he could not have gone ahead and done it in the way he did and there must be a real possibility that the security guards would have prevented or hindered him or precluded his re‑entry to the premises.

HEYDON J:   Is real possibility enough?  Causation has to be proven on the balance of probabilities.

MR TOOMEY:   Your Honour, both parties are labouring under the difficulty that the believed assailant, Mr Abbas, was not called to give evidence and no doubt was not all that keen to come to talk to anyone.

HEYDON J:   Just on that subject if it does not interrupt your flow so much, what actually happened to the assailant?

MR TOOMEY:   He was charged.  He fled the premises, he was charged, he was tried, convicted and the Court of Criminal Appeal set aside the conviction on the basis of identification difficulties because the CCTV was very poor quality and the identification evidence was not terribly good.

HEYDON J:   So he won on the basis that no reasonable jury could have convicted him?

MR TOOMEY:   Yes, your Honour, on the identification basis, really.  Sorry, I have lost myself.

HEYDON J:   I am sorry for interrupting.  We were talking about real possibility ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour.  My learned friend’s causation argument essentially is that the man was of such a character and his behaviour of such a quality that even had there been security guards there, he would have got in and shot the respondent.  In our respectful submission, there is actually evidence from one of the security experts, for what it is worth in this context, but there is evidence from one of them that had the security guards been there, the chain of events would have been different. 

It may be no more than common sense, but it may indicate his belief that trained security guards would in some way have hindered the criminal intent, the effectuation of the criminal intent, of the assailant.  I think I said that had there been a security guard at the top of the stairs and at the bottom of the stairs – there were substantial doors both below and above.  The doorway to the room in which the assault took place was up two flights of stairs, one floor, two flights.

There are photographs of the doors at 343, your Honours.  There is a series of photographs, 343 are the downstairs doors and they are solid and they are covered by a metal screen.  The upstairs doors are shown in 346.  Your Honours will see that the left‑hand wing of the doors is closed, it is wood.  The right‑hand wing is open, and your Honours can see that it is of solid construction and it appears to have one of those security bars on it on the inside.

The view that the security men would have had can be pieced together from 343 where you are looking up the stairs from the downstairs doors, 344 where you are looking down the stairs to the landing, and 345 where you are looking down to the front doors from the first landing.  At 486, Mr Jennings said:

This suspect had been involved in a major violent incident within the club and when he got up and left he should not have been let back into the club.  I would question where the security –

This was written at the time when the defendants had provided us with a detailed account of what security men were on.  In fact, there were no security men.  At paragraph 11:

If the gunman had ignored the security officer and there was no security hardware such as such as automatic door locks which could have been used to stop him getting into the actual club or sounding of any alarm, then the security officer could at least alert the people inside and the suspect would have found it very difficult to identify and attack the intended target in the ensuing panic.

HAYNE J:   It involves provoking a panic and a stampede.

MR TOOMEY:   Your Honour, if someone is coming up the stairs with a gun in his hand ‑ ‑ ‑

FRENCH CJ:   Just shout “Fire”.

MR TOOMEY:   You could shout anything.  The very first thing you would do is shout, “Shut the door”.  That would be the very first thing you would do.  Had there been a security man downstairs, he may never have got inside the downstairs door.  It is a matter of probability.  Can I say this, that the extraordinary letter from the defendant’s solicitor to the plaintiff’s solicitor in which he set out the number of people and where they were and what they did during the evening suggests some sort of – assuming, as one must, that that was the information which was given to the solicitor by the defendant – that shows a very considerable load of guilt on the defendant.

FRENCH CJ:   It was used in the Court of Appeal, was it not, as a support and inference of foreseeability of risk on the part of the ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   Or actual foreseen risk on the part of the appellant.

MR TOOMEY:   Yes, because they said, “That is what we do.”  And you only do that if there is, as your Honour says, foreseeability of risk.  Your Honours, can I just take you to some other material which we think is very material on the duration of the fight.

FRENCH CJ:   Just before you – we are really in an area of speculation rather than assigning probabilities, are we not, in looking at this counterfactual that you propose, namely, what might or would have happened had there been security guards.  I mean, another possibility is you would have shot both of them.  How can a court assign probability or a likelihood to some different outcome other than what happened in this case?

MR TOOMEY:   Your Honours, there are a number of steps.  In the first place we say that had there been security guards there – if we are right in saying that there was a substantial period of time between the start of the fight and the altercation between the respondent and the assailant and then a further period of time when the assailant left the room and came back again, there were many opportunities for trained security guards to calm it down and to get it to a point where it did not finish up in the awful consequences that were had in this case. 

To suppose that if there were no security guards there they would not have been able to alter the course of events and alter the seriousness of events, in our respectful submission, is against the probabilities.  The gun is, to an extent, a furphy, if I may descend into the vernacular, because he could have come back with a cosh or a knife.  The gun is just a weapon and what had to be guarded against was violent attack on the plaintiff. 

Your Honours, I was going to take you to Mr Toauk because we do see the duration of the events as being pretty important.  I think your Honour Justice Gummow said earlier these things can just flare up.  Well, so they can, but this one did not just flare up.  It burned for some substantial time before the explosion occurred.  On page 272 at line 15 Mr Toauk begins a description of what happened.  He is asked:

Q.      I want you to describe for me what you saw, how you saw this event develop?  What did you see?
A.      Well, I was near the dance floor itself; our table was right on it, and everyone was dancing as usual then you just see a few girls going at it.  There was screaming and that, you know.  So I got up to have a look because I knew we had some of our friends up there as well, so I just got up to have a look.  And then it just got a bit out of control so I kind of stepped in to try and pull apart who was having a go at each other, you know.  There’s a few other people there helping, you know, trying to break it up . . . 

Q.      You’ve just described how you went up there to intervene yourself.  Just take us through.  Describe what happened and what you did?
A.      Basically just went up there and there was a few hands in there at each other and the closest people to me I was just trying – it was very crowded.  There was a lot of people on the dance floor and around the place so there was a lot of pushing and shoving and stuff but whoever was in front of me grabbing each other.  I was just trying to pull them apart . . . 

Q.      Did you see the chairs being thrown, anything like that?
A.      Yes, it started to escalate with that, and I seen a few cups and that, you know, plates and that and then eventually as it went on, yeah, it started to get pretty violent.  Chairs started to fly and it got out of control then I just phew.

Q.      You say, “as it went on”.  How long did this event continue for?
A.      It would have went for at least 10 minutes.  Off the top of my head from what I can remember at least 10 minutes worth and then it just got worse after so it carried on until maybe about 20 minutes then after that – that’s my recollection.

Q.      At some stage during this event your attention was drawn, was it, to the kitchen for some reason?
A.      Yes, it was.  I heard a bang; a real loud bang . . . as I came over Anthony Moubarak had come running out . . . as he ran out and come round I’ve looked at him and then another fellow come out behind him.  That fellow that had come out behind him had taken his – drew his gun and he wasn’t looking.  He just had it – and I was just staring at him as he came out and Anthony ran out just in front like it was just really quick, it was.  And he’s just taken two lucky shots – like he just took two shots . . . 

A.      This is what I saw.

If the general description by Mr Toauk is to be given any sort of coherence it is that this was an event which started from a small altercation and expanded until there was general fighting.  Had there been security men there it is our respectful submission the probabilities are clearly that it would have stopped or would have been stopped or substantially ameliorated, remembering that the shooting was an event which more or less stopped the violence.  People no doubt were so shocked that that was about the end of it.

So Mr Toauk’s 10 to 20 minutes gives us a lengthy period during which security men could have stopped it, could have done something.  Even if they had not, they surely would not have allowed a man with blood on his face to run out of the place – no one pursuing him is the evidence.  He runs out of the place with blood on his face, comes back in a minute or two later, still with blood on his face, with something in his hand.

In our respectful submission, the reality is that it is probable (a) if the duration was in fact so long that the security guards could have got it under control; flowing from that (b), the plaintiff would not have got into the fight he had with the assailant; and (c), in any event the security guards would have stopped the supposed assailant, Mr Abbas, from getting back in.

FRENCH CJ:   The primary judge actually made no finding, did he, about the duration of the events?

MR TOOMEY:   No.

FRENCH CJ:   Look at 580, paragraph 5, it seems to be, “Within a very short time the dispute . . . escalated” and so on.

MR TOOMEY:   Yes, but that is the escalation, your Honour.  That is escalation, that is not the duration of the fight.

FRENCH CJ:   Yes, but he made no finding about the evidence you have described.

MR TOOMEY:   That is correct, your Honour.

HEYDON J:   Mr Toauk was a martial arts practitioner.

MR TOOMEY:   Yes.

HEYDON J:   He was not able to stop the fight, or he tried to.

MR TOOMEY:   No.

HEYDON J:   You keep saying security guards and correctly so, but what is your submission as to the totality of the manpower needed on the evening?

MR TOOMEY:   Well, Mr Jennings said, I think, six to eight and Mr Jennings said that the supposed staff on the night, the non‑existent staff which had been set out in the letter from the solicitors, were a not inappropriate response to the risk, that is, the risk arising out of the occasion.  Sorry, Zalewski said that.  Jennings said six to eight ought be there.  Mr Zalewski said that the letter at page 520, the prescription in that was not inappropriate and that prescription is:

at least two security guards . . . 

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.

In fact, Mr Jennings says that that is not inappropriate, at page 565.

FRENCH CJ:   Mr Toomey, that might be an appropriate time to ‑ ‑ ‑

MR TOOMEY:   I am sorry, your Honour, I keep on saying “Jennings”.  It is Zalewski.

FRENCH CJ:   We will adjourn until 2.15.

MR TOOMEY:   May it please, your Honour.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Toomey.

MR TOOMEY:   May it please, your Honours.  Your Honours, the best I can do on causation I think is to give your Honours a summary of the materials which we say entitled the courts below to find on causation, having regard to the statements of this Court over the years of the robust nature of the decision on causation that the Court is entitled to take a robust view of matters and having regard to the, in our respectful submission, unquestioned negligence of the defendant in failing to have any efficient security of any sort.

We say that had there been security there proper early intervention would have stopped the violence so no altercation would have come about between Mr Moubarak and his assailant.  The violence having occurred so that the assailant was leaving the hall hurriedly with blood on his face and having been involved in an incident which plainly, in our submission, was such as would cause a young man to harbour thoughts of reprisal, he should have been stopped from leaving, at least leaving without some intervention and some attempt to find what he had in mind.

The suggestion by my learned friend in his written submissions, in his submissions in reply and in this Court that there would be no right to stop him in our respectful submission overlooks the Liquor Act because the Liquor Act requires the prevention of violent or quarrelsome behaviour.  If that required the prevention of someone temporarily leaving, in circumstances where they might come back with violence in mind, that is covered by the statute.

HAYNE J:   What, it gives a power of arrest, does it?

MR TOOMEY:   No, but it gives a power of intervention to prevent foreseeable possible violent or quarrelsome behaviour.

HAYNE J:   By detention.  That is what you are putting, Mr Toomey.  You use other words, but what you are saying is, “Don’t let him go”.  That is detention.

MR TOOMEY:   Yes, your Honour.  Well, we would say that if that is what is required for the purpose of the statute you would be entitled to do so.  Supposing for instance that the man said, “I’m going out to get a gun and I’m going to come back in here,” what right of detention would there be then?  It would be a stronger case but it is the same case.

FRENCH CJ:   You have to find it in the statute, do you not, on your case?

MR TOOMEY:   Yes, we would have to find that.

FRENCH CJ:   That sort of thing is usually made pretty clear, is it not?

MR TOOMEY:   It is a pretty general subsection, your Honour, that is to prevent ‑ ‑ ‑

FRENCH CJ:   Yes, that is why I say it.  You do not pick up the tension as an implication.

MR TOOMEY:   Except that if the duty on you is to prevent this happening and the only way you can prevent it is by laying hands on someone and restraining him, then, in our respectful submission, there is not much difficulty in inferring that intent in the statute.  The third step is that, had the security men been there who should have been there, he should have been stopped from re‑entering whether by combining the efforts of both of the security men or by simply closing the premises.  The evidence is that when seen coming up the stairs on the security video, he has something in his hand.  There is an available inference that it was probably the gun. 

He has, it is accepted by all parties, probably gone and got the gun from the car and taken it back to the premises.  Closing of the door would have prevented the whole business, this specific part of the business.  It would have prevented him re‑entering the premises, it would have prevented any further violence between him and either of the respondents.  The door could have been closed at ground level by a security man there.  Part of his duty was to supervise the car park.  He must have been able to see the man approaching with the gun in his hand. 

It could have been done at upper level either because the upstairs guard could see, as the photographs show, the full extent of the upper flight of the stairs, and they are substantial, it is not just a couple of steps.  Further, the general operation of security guards is that when there are a couple of them on they are linked by walkie‑talkie and so there could have been a warning.  Had he attempted to force his way past the lower guard or in fact forced his way past, the upper guard could have then warned so as to ‑ ‑ ‑

FRENCH CJ:   Is that a matter of evidence or are you telling us that?

MR TOOMEY:   I am sorry, my learned junior, who knows more about the facts of this case than I do, says there is evidence of that, your Honour.  I think it is the evidence in the experts who say that the normal practice is that you have them in communication with one another.  So either by reason of seeing him come up the stairs with what may be the gun in his hand or being forewarned from downstairs, the upstairs guard closes the door.

That is our framework, your Honours.  The question of causation is also affected by the line of authority running from Chappel v Hart through Naxakis and getting a mention by Justice Kiefel in Royal’s Case.  In Chappel v Hart 195 CLR 232 at 239, starting at line 10, your Honours:

The matter can be put another way.  If the foreseeable risk to Mrs Hart was the loss of an opportunity to undergo surgery at the hands of a more experienced surgeon, the duty would have been a duty to inform her that there were more experienced surgeons practising in the field.  Because the risk was a risk of physical injury, the duty was to inform her of that risk.  And that particular duty was imposed because, in point of legal principle, it was sufficient, in the ordinary course of events, to avert the risk of physical injury which called it into existence.  And the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury unless there is “sufficient reason to the contrary”.

At page 244 in Chappel v Hart, Justice McHugh said at paragraph 27:

Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury.  In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases –

and below his Honour notes in this context, including creates –

the risk of injury to another person.  If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.  If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff.  That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff’s injury unless the fact of that particular time or place increased the risk of the injury occurring.

One would infer, in our respectful submission, from that passage from Justice McHugh that there would be a reversal of the onus.  Now, that point was picked up by Justice Gaudron in Naxakis v Western General Hospital 197 CLR 269 by Justice Gaudron at pages 278 to 279. Her Honour said:

There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases.  For the purposes of the allocation of legal responsibility, “[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring”.  And in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.

FRENCH CJ:   Does it make any difference that the case you are running is one of a duty to reduce risk, a pre‑existing risk, rather than engaging in conduct which creates a risk or increases an existing risk?

MR TOOMEY:   Well, your Honour, putting it on the question of causation and the case that has put against us is that it would have happened in any event.  So we are attempting to meet that by saying that even assuming that there was a risk that the assailant would have got through into the restaurant hall and shot the plaintiff, that that risk was materially increased by the fact that there were no security guards or is materially increased – I am sorry, your Honour, I have mucked that argument up.

FRENCH CJ:   You said the material contribution referred to in Chappel v Hart relates to the creation of or the increase of an existing risk, that is, an increase in the probability of something bad happening.  Here you have what we might call a pre‑existing background probability of something happening which is bad and the question is whether failure to take steps to reduce that probability means that you have materially contributed to the bad outcome.

MR TOOMEY:   Your Honour, the material increase in the risk must be the material increase by not having guards as against the risk that would have existed even had there been guards.

FRENCH CJ:   It is a failure to reduce risk, really, rather than material increase.

MR TOOMEY:   I suppose that is right, your Honour, yes.  But I think on one view of it, so was Chappel v Hart, because your Honour Justice Gummow found for the plaintiff in that case on the basis of the respondent in that case on the basis that the warning if given would have changed the course of events, so that the particular events which resulted in Mrs Hart’s injuries would not have occurred.  She might have been injured in some other way but not by the events which injured her.

Your Honours, that question, so far as we are aware, and I believe I can say this, has not been considered by this Court in Banco, but we would say that the sources of the statements – I should say that Justice Callinan agreed with Justice Gaudron on that point in Naxakis at 312 and at paragraph 127 cites the passage I have quoted, your Honours, from Justice McHugh in Chappel v Hart and says he does not think that is affected by the fact that his Honour Justice McHugh was then in dissent.

There are, in our respectful submission, in any event, powerful social reasons which ought to affect this Court in the decision of the causation argument, an argument which founds on the basis that it would not have been any good to try and stop him because, quite apart from later shooting two other people, he might have shot two more.  It is not an argument which the law should readily embrace unless forced to do so.  The suggestion that causation is affected by the possibility that the person would have committed other and more serious crimes ought not, in our submission, draw the favour of this Court.

In any event, we say that it is problematic in the least to say that had there been two security men there standing at doors which could be closed, it is not open to say on the balance of probabilities that they probably would have prevented this man doing these acts.  His Honour’s consideration of causation begins at paragraph 101 on page 690 and his Honour sets out in paragraph 101 the plaintiff’s submission on the appeal.  Paragraph 102:

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”.  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’.”

Now, I would submit it is a fair comment to say that the appellant’s statement of what would not have been effected, that is, “deterring or dissuading or preventing” leaves it pretty open.  We would say that that is consonant with what your Honour Justice Hayne said in using the phrase “hinder or prevent” in Modbury and in the consideration by your Honour Justice Heydon in Drakulic of the same phrase.

My learned friend said to your Honours early in his argument that the Court of Appeal had not considered the argument about the possibility that even with security men there that the assailant could have got through.  Well, that would not appear to be correct because at paragraph 107 on 692 his Honour said this:

Although not fully articulated by his Honour –

that is his Honour the trial judge –

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.

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.

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” –

and he cited Modbury and other cases.  His Honour goes on –

these, however, were general statements, and the present question is one of particular fact.

Now, that is so much for my learned friend’s argument that that argument on causation was not considered by the Court of Appeal.  The Court of Appeal went on:

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).

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.

In our respectful submission, his Honour took into account the argument my learned friend advanced.  It certainly is not true that the Court of Appeal did not consider it, and it is our further submission that his Honour was correct in the conclusion he arrived at, having regard to the extreme nature of the potential acts, which my learned friend must suggest prevented causation being found, that is, that he would have shot or in some way intimidated or got past the guards by, if necessary, seriously injuring them.  They had done him nothing, no harm, they were not involved.  They were not even people at the party.

HAYNE J:   That focuses upon preventative effect, are you saying?

MR TOOMEY:   Or deterrents, your Honour.

HAYNE J:   Are you saying that the presence of two security personnel at the door would have deterred this person from entering?

MR TOOMEY:   We say that it is likely that had they been there, that he would not have committed the crime he did against the respondent on the basis that specifically, that his Honour put, that he thought it was quite unlikely that he would have used force against the security guards.  Mr Jennings said that he had never heard of such an event occurring.  Now, that is opinion evidence of limited weight, but it is there, and as I have said before ‑ ‑ ‑

HEYDON J:   It is not opinion evidence, actually.

MR TOOMEY:   I am sorry, your Honour?

HEYDON J:   It is factual evidence, it is not opinion evidence.

MR TOOMEY:   I am sorry, your Honour is perfectly right, but I think it has been extended into an opinion that it would not have happened, and it is certainly not that.

FRENCH CJ:   Does your case turn on the proposition which seems to inform the Court of Appeal reasoning that, had there been security guards present, then it is more likely than not that at least re‑entry would have been deterred.  Previously, you were talking in terms of risk, and is it sufficient for your case that the presence of security guards would have reduced the risk of re-entry, or in some other way, the events occurring and that that is enough to get material contribution?

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   Well, which?

MR TOOMEY:   I am sorry.  The material contribution, your Honour, by the failure to have the security guards.

FRENCH CJ:   That is not how the Court of Appeal dealt with it.  The Court of Appeal dealt with it on balance of probabilities rather than risk reduction, did it not?

MR TOOMEY:   They did.  That is perfectly right.  We would say we could win on either, but we say that the balance of probabilities is the way that we say it ought to have been found and was found.

FRENCH CJ:   If it goes the other way, would you require a notice of contention to support that, because it is an alternative basis upon which the Court of Appeal did not proceed, is it not?

MR TOOMEY:   Yes, your Honour.  Your Honours, that is all I wanted to say about causation but there are a couple of other things I would like to – your Honours, at appeal book 319, line 15, Mr Zalewski, who was the defendant’s expert, said:

Q.       You’ve mentioned something I was going to come to in a moment, and that is, one of the important aspects of security in the modern age is the having of the ability for each of the security guards, wherever they’re positioned, to communicate with one another.
A.       That is a common approach and it’s certainly a recommended approach.

Q.       That’s the use of little portable radio‑transmitters?
A.       Well, that is one way to communicate, but it depends on the venue.  Some venues, of course, you can’t hear using radios so there are other strategies as well.

Q.       There are other means of doing the same thing?

A.       But certainly communication is one of those important points, yes.

Your Honours, my learned friend advanced an argument to your Honours on the ‑ ‑ ‑

GUMMOW J:   Let us be clear, Mr Toomey, what was the purpose of taking us to Chappel v Hart and talking about risk?

MR TOOMEY:   The material contribution – the increase of risk amounting to a material contribution, your Honour, our submission being that the absence of guards materially increased the risk of the plaintiff being shot.

FRENCH CJ:   I asked you whether that would require a notice of contention and you said yes.

MR TOOMEY:   I thought your Honour asked me would we be prepared to put on a notice of contention and I said ‑ ‑ ‑

FRENCH CJ:   I am asking you whether it would require one and you said yes.

MR TOOMEY:   I see.

FRENCH CJ:   There was a sort of pregnant silence after that.

GUMMOW J:   Where do we find it?

MR TOOMEY:   If your Honours are of the view that we are precluded from raising that point, there is nothing we can do.

HAYNE J:   I still do not know what course you are adopting, Mr Toomey.  No doubt that is my fault, but I do not know what your position is.

MR TOOMEY:   Well, if your Honours believe that we are not entitled to raise that without a notice of contention, we would ask your Honours’ leave to file a further notice of contention.

FRENCH CJ:   Why should you have leave?

MR TOOMEY:   I am afraid I cannot advance any reasons to your Honours, although the second respondents raised the point in their submissions.

GUMMOW J:   Whereabouts?

MR TOOMEY:   In their notice of contention at page 722 in paragraph 4, line 10.

HEYDON J:   That is the dance floor.  That is not refusing re‑entry.

MR TOOMEY:   That is true, your Honour.

HEYDON J:   I have to just say, if this is the only point between you and success, it does not turn on any point of evidence, what is the difference between filing a notice of contention ‑ ‑ ‑

MR TOOMEY:   We would respectfully request that if your Honours thought there was anything in the point, that you should allow us to put on a notice of contention.

GUMMOW J:   We will not tell you first, Mr Toomey.

MR TOOMEY:   You will not give me judicial advice, your Honour?

HAYNE J:   In a case where you have ‑ ‑ ‑

MR TOOMEY:   I am sorry, your Honour.

HAYNE J:   I am sorry.

MR TOOMEY:   Your Honour, it was raised before the trial judge, but it seems to have vanished.  It appears at 605, your Honour.  It is the start of causation on page 604, paragraph 61 and his Honour there set out the passage from Chappel v Hart on which we rely.

GUMMOW J:   Paragraph 62.

MR TOOMEY:   Yes.

He said the contribution of the inadequate (or non‑existent) security was material (more then de minimus) and can thus be regarded as causative.

HEYDON J:   Something which is more than de minimus is not necessarily material.

MR TOOMEY:   No, but, your Honour, it is clear that the submission was that it was, with respect ‑ ‑ ‑

HEYDON J:   Yes, I appreciate your position on that.

MR TOOMEY:   Yes, your Honour.  I am not sure whether his Honour is there suggesting that Mr Campbell characterised the contribution as being simply more than de minimus, with or without a “u”, your Honour.

HEYDON J:   Did his Honour ever deal with that argument?

MR TOOMEY:   I am sorry, your Honour.

HEYDON J:   Did Judge Sorby ever deal with the argument which Mr Campbell is recorded as having put in paragraphs 61 and 62?

MR TOOMEY:   Your Honour, I think he did.

HEYDON J:   Paragraph 66, perhaps.

MR TOOMEY:   The use of the phrase “materially contributed” would certainly suggest, your Honours, that indeed he did because causation does not necessarily rely upon the phrase “materially contributed”.  Your Honours, having regard to that later material and the fact that the argument was at least embryonically before the Court, we would seek your Honours’ leave to rely on that argument and of course to file a notice of contention, if your Honours were to give us leave.

FRENCH CJ:   How would you formulate the grounds in your notice of contention - just the substance of it, at the moment?

MR TOOMEY:   That the failure of the defendant to provide appropriate security guards materially increased the risk of the occurrence of the attack upon the plaintiff and thus materially contributed to his injury.

FRENCH CJ:   We will in due course hear from Mr Campbell, and then Mr Sexton in reply.  It might be possible in the meantime for something to be formulated in writing, but otherwise, we will ‑ ‑ ‑

GUMMOW J:   You have two juniors there.

MR TOOMEY:   I will employ them immediately.  Your Honours, my learned friend said to your Honours that all the cases of contractual entry and the duty arising therefrom were cases which involved the physical state of the premises.  That is an incorrect statement.  There is a case in this Court called Australian Racing Drivers Club v Metcalf 106 CLR 177. The Bench was Chief Justice Dixon, Justices McTiernan, Kitto, Taylor and Owen, and in that case, a man was admitted to a racing circuit for reward. A car ran out of control, struck him. The allegation was that he should not have been allowed to be where he was by reason of the possibility of that happening. He succeeded, despite the fact that there was not said to be any deficit in the premises and it related to the activity upon the premises.

There is another case called Cox v Coulson, which is an old English case referred to in Charlesworth, where a man went to a restaurant cabaret where there was a tightrope walker above the heads of the diners – I am not suggesting it was a very high‑class restaurant, your Honours – and in the course of walking across the tightrope, the tightrope walker dropped a chair

which he was holding and caused considerable harm to the chap below him, and the plaintiff was entitled to succeed on the basis there should have been a safety net, which is not, in our respectful submission, a deficit in the premises but a failure to safely carry on the activity, and that is what our case is here.

Furthermore, in Thompson’s Case, Thompson v Woolworths, your Honours actually referred to the artificiality of any distinction between the state of the premises – I am sorry, injury caused by the state of the premises or by activity carried on on the premises.  So, in our respectful submission ‑ ‑ ‑

GUMMOW J:   What citation is that, Mr Toomey?

MR TOOMEY:   It is at 221 CLR 234, your Honours, and the ‑ ‑ ‑

FRENCH CJ:   This only arises if you are successful on causation but fail on duty of care in the tortious context and you then get into the contractual duties you substitute basically.  Is that how it works?

MR TOOMEY:   Yes, if we fail on duty we do not go anywhere, and if we fail on causation we do not go anywhere, but this was on the duty point, your Honour.

FRENCH CJ:   Yes.

MR TOOMEY:   It is on page 243, your Honours, but I regret I cannot – I am sorry, your Honours, I simply cannot find it, but no doubt we will.  Just a couple of other matters, your Honours - Mr Elbaz, whom my learned friend relied on for saying that he did not drink and he went there with his family quite often, was one of the witnesses my learned friend relied on as establishing the quiet and un‑violent atmosphere of the place.  Mr Elbaz said that he thought the men who became involved with his daughter were drunk.  I think it is page 380 in paragraph 7.  He says he saw three men dancing who he thought “must be drunk and I was worried about my daughter”.  May it please your Honours, those are our submissions.

FRENCH CJ:   Yes, thank you, Mr Toomey.  Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, I wish to take my submissions a little out of what might be the order that your Honours might expect and I would like to go immediately to the question that Justice Hayne asked this morning of my learned friend about what was it that should have led the respondent in the time when it was planning this function for 31 December 2002 to come to the conclusion that it ought to have engaged, designated, to use the expression that has been used in the appellant’s submissions, security guards.  I would then like, your Honours, to go on and say something about this issue of causation upon which much of the dialogue has been concentrating and finally return to those questions of duty which were ventilated this morning and are at the heart, as I apprehend it in any event, of the appellant’s appeal. 

Before answering the question that Justice Hayne raised could I say this, your Honours, that obviously in any case of negligence the various aspects, ingredients or parts of the tort, duty, scope, breach, causation, damage are not freestanding, as it were, they inform one another.  So that it is relevant, we respectfully submit, when you are asking a question about breach to bear in mind what it was that was decided about the existence of a duty and of scope and, moving a little ahead of myself, your Honours, when you look especially at that causation issue, it is absolutely, we respectfully submit, fundamental that you bear firmly in mind at all times what it is that has been decided about the existence of the duty, the scope of it and the aspects going to breach. 

Having said that, your Honours, could I then answer that question, if I may, and could I say in answering it, your Honours, that there are 11 points and those 11 points, we submit, bring together those aspects to which I have adverted in my opening.  Could I list them in this way, your Honours.  Firstly, the relationship between the parties, that is to say, the relationship between the appellant as the manager of premises licensed for the sale of onsite consumption of alcohol, secondly ‑ ‑ ‑

FRENCH CJ:   Relationship between whom and him – between it and?

MR CAMPBELL:   I beg your Honour’s pardon.  It is between the appellant and each respondent individually, but, of course, at the time prospectively this matter is being contemplated, it is the relationship between the appellant and the class of persons who will be their patrons on the night in question.  Then, your Honours, the next point is their statutory obligations.  The statute does not only exist in the books, your Honour, it is there to govern the behaviour of people engaged in the industry to which it applies.  The appellant ought to be taken to know of its statutory obligations whether it does or it does not. 

Next, your Honour, the third point, is the appellant’s knowledge of the nature of their own business and that includes, your Honours, the knowledge of their business at the operational level, that is to say, what type of functions and activities they carry on, what numbers of people attend and what they do when they get there, but also the type of incidents which have occurred in the past, may I put it this way, your Honours, having regard to the contents of the COPS reports in this case, in and about the immediate vicinity of their premises. 

The fourth point, your Honours, is the long hours during which they expected to be open for this function during the whole of which they expected to be serving alcohol to the patrons.  The fourth point, your Honours, the expectation that they must have had on the basis of their previous experience when contemplating this function that they would be full to capacity and beyond, bearing in mind that their licence authorised them to admit 295 patrons. 

The fifth point, your Honours, the expectation that the principals of the business, of whom there were two, and that the staff of the business – may I interpolate, we do not know how many, but we know there was a barman and some waiters – would be busy performing their normal tasks and therefore not able to attend to security, notwithstanding their statutory obligations under sections 103 and 105 of the Liquor Act.  Your Honours, could I say here that it is an old adage that a task which is everybody’s job is nobody’s job. 

The next point, your Honours, is the knowledge that if trouble was not able to be suppressed quickly, patrons innocent of any participation in the trouble or the disorder would be unlikely to be able to protect themselves, that is to say, vulnerability, your Honours, is relevant, we submit, not only to duty, the existence of it, the scope of it, but also to the breach of it. 

FRENCH CJ:   Now, that was your seventh point, is this eight?

MR CAMPBELL: This is eight, your Honour. Thank you, your Honour. I am afraid I have got them as bullet points and I had lost count a little. This is eight. The statutory regime requiring the performance of statutory activities by licensed personnel is a relevant matter that they had to consider. Can I just say about that, your Honours, that in terms of section 103 which authorises not only the licensee but the employees to eject and to refuse readmission to the premises, eject from and refuse readmission of troublemakers to and from the premises, that can be done without a security licence, obviously, but if you are going to employ people, your Honours, to be engaged on security activities you need to comply with that statute.

FRENCH CJ:   That is the same as point two, is it not?  Point two is the appellant’s statutory obligations.

MR CAMPBELL:   It is a different regime, your Honour.  I am sorry if I have not made that clear.

FRENCH CJ:   Yes.

MR CAMPBELL:   I am talking now about the regime under the Security Industry Act 1997 which we have referred to in our written submissions, in particular, your Honours, the definition of “security activities” and section 7 of that Act which prohibits non‑licensed personnel from carrying out security activities. Nine, your Honours, is the evidence of the experts about industry practice in relation to the door, the dance floor and a general patrol of the area. Ten is the appellant’s own usual practice, and we have given your Honours the transcript references to this in our written submissions but can I simply remind your Honours that there is evidence about that at page 300, lines 25 to 42? Also – perhaps I have got these back to front, I am sorry, your Honours – at page 299, lines 45 to 55.

Now, your Honours, the final and eleventh point or factor which we say should have led them in prospect to engage licensed security for this function is what we would call, borrowing a phrase from Lord Hoffman, their economic interests.  Your Honours, could I take your Honours to a case that we have on our list, the decision of the New South Wales Court of Appeal in Ashrafi Persian Trading v Ashrafinia (2002) Aust Torts Reports 81‑636. This is a decision of the Court of Appeal in which, of course, your Honour Justice Heydon gave the leading judgment which is relevant to the Modbury principle as has been applied in subsequent cases.

The point, your Honours, which I wish to make, and this is a convenient place to make it, is at paragraph 63, page 68,334, and the part which I am going to refer to is in the right‑hand column on that page.  Now, these are three factors which Lord Hoffman, your Honours, identified as being political, moral and economic matters which Lord Hoffman identified as underpinning the general principle identified in Modbury.  On that second column your Honours will see, about a quarter of the way down the quote, the last two words on the line are:

In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs.  If it benefits from being able to impose some of its costs on other people (what economists call ‘externalities,’) the market is distorted because the activity appears cheaper than it really is.  So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities.

Now, as I say, your Honours, at the outset that is a consideration going to duty perhaps, but ‑ ‑ ‑

GUMMOW J:   Stovin v Wise has been quoted at least nine times in this Court.

MR CAMPBELL:   Yes, your Honour, including, your Honours, I think in Pyrenees Shire Council v Day.  If your Honours asked me, I could have referred to something from the Commonwealth Law Reports.  I am sorry I did not, your Honour, but the case was otherwise relevant and it was a convenient place to source it, so I apologise for going to that form of report rather than to the authorised reports, your Honour.

Your Honours, those are the factors which we say inform the
breach question in this case and which indicate that the appellant should have engaged security services in advance of the function on New Year’s Eve on 31 January 2002.

HEYDON J:   How does the last one fit in - this Lord Hoffmann’s reliance on Professor Calabrese’s line of thought?

MR CAMPBELL:   Your Honour, I accept that it is not a factual consideration as much as some of the other considerations are factual.

HEYDON J:   Justice McHugh seemed to take it as an argument to support the correctness of the common law even though it was harsh.  In other words, it is not favourable to plaintiffs.

MR CAMPBELL:   My submission about Lord Hoffmann’s view on that duty question, if I can put it that way, is that the way he expressed the ideas underlying the common law’s reluctance to impose a duty to control the conduct of others – if you look at it from the point of view that in economic terms, the way it was expressed, that is actually a factor which would favour the imposition of a duty in certain circumstances.  The political and moral ones may not, your Honour, as expressed by his Lordship.  For instance, his moral term, if I can use that expression – the “Why me?” point is against the imposition of a duty, but in a case like the present where the enterprise has an economic interest in generating the activity which has given rise to the risk of injury and it benefits from it economically then the cost produced in economic terms should not be put on the community generally but rather should be borne by the appellant in this case or by the entrepreneur conducting the business.

CRENNAN J:   A policy argument, in essence, about allocation of risk.

MR CAMPBELL:   Yes, it is, your Honour.  I understand that the common law in Australia proceeds on the basis of principle not policy, but these factors are relevant considerations going to duty.  I suppose in the context of breach in which I advance the argument, your Honour, it could be put a little less flamboyantly or elaborately by saying it was in the business interests of the appellant to organise proper security, to have a plan, adequate personnel and to get people who are licensed and trained to do it.

Could I turn to the causation issue.  I hope it is not out of place for me to say that one of the reasons why this might be the focus of so much attention in this case and it might be seen as a matter which gives rise to difficulty is because, of course, the revulsion that anyone would feel about circumstances where one member of a community comes into an enclosed space armed with a firearm and inflicts serious injury on two other members of the community with that firearm.

MR CAMPBELL:   The question underpinning that revulsion then becomes, well, why should this appellant be responsible for that type of conduct on the part of a patron?  Now, your Honours, that then leads to the difficulty how do you prove that the negligence of the appellant actually caused the injury, given the means by which the injury was inflicted?  Can I say this, your Honours – and we have said this in the written submissions so please forgive me if I am going over ground that your Honours are well aware of – but absolutely fundamental, with respect, your Honours, to answering any question of causation for the purpose of not only the law of torts but for any branch of the law where causation is a relevant consideration is to identify clearly the purpose for which the question is asked.

Your Honours, could I say here, and flag in advance, that I will be going back to what we have said in writing about Club Italia and paragraph 44 thereof and the creation of disorder.  I will not go to that case right now, your Honours, because I want to go to another case.  The question, of course, as Justice Gaudron put it in Chappel v Hart and as we have extracted in writing is that questions of causation do not arise in a legal vacuum.  So you have to properly identify the environment in which and the atmosphere in which the question of causation is being asked.

In this case, your Honours, we submit that the context or atmosphere is not simply the law of negligence but it is the law of negligence giving rise to a duty which in itself is informed by the contents of statute law, as was debated in this Court this morning.

Could I take your Honours to Travel Compensation Fund v Tambree. Your Honours, we have put some references to this in the written submissions, but there are some additional ones we wish to give your Honours. It is (2005) 224 CLR 627. Your Honours, we have referred at page 639 to the passage from Chief Justice Gleeson’s judgment at paragraphs 28 to 30, pointing out the extent to which questions of causation are always imbued with values or policies. The value or policy relevant in that case was the values and purpose of the statute.

Your Honours will recall the facts in Tambree, involving, as it did, a claim by the statutory Compensation Fund against accountants who had given a business, which was in a perilous financial state, a clean bill of health, as it were, in relation to it.  Your Honours will recall that the cause of action considered in Tambree was basically one under section 42 of the Fair Trading Act (NSW) which gives rise to, at the State level, the same obligations or the same rights as arise under section 52 of the Trade Practices Act.

Your Honours will also recall, because it is relevant for the purposes of the present debate, that one of the facts going to the determination of the causation question was not just trading whilst insolvent – itself, of course, an illegal activity – but also trading without a licence, so that the conduct of the insured travel agency was unlawful conduct – perhaps not of the same magnitude of unlawfulness as we find in this case, your Honours, but it is relevant to note unlawful conduct.

Could I then, your Honours, go to paragraph 32, and this of course, is a relevant consideration, your Honours, except that this is trite law.  The search for cause is not a search for sole cause, there may be separate and independent causes and yet the tortfeasor in this case might remain liable for the consequences of its breach of duty.  So the first sentence there his Honour says:

Misrepresentation will rarely be the sole cause of loss.

Then, your Honours, the part that I wish to emphasise was this, towards the end of the paragraph, towards the end of the fifth‑last line:

if misleading or deceptive conduct takes the form of participating in providing false information, and the very risk against which protection is sought materialises, it is consistent with the purpose of the statute to treat the loss as resulting from the misleading conduct.

So your Honours, if here, as, with respect, your Honours Justices Gummow and Hayne said in Cole v South Tweed that the purpose of the cognate provisions of the Registered Clubs Act, cognate to the provisions of the Liquor Act 1982, were to maintain order in the licensed premises and an injury occurred through the breach of duty and allowing disorder to occur, propagate and get out of hand so that in the course of it someone was shot, then it is still possible, your Honours, to say as a matter of law, that it was consistent with the purpose of the common law and duty here informed by statute to treat the loss to the respondents as resulting from the breach of duty. Your Honours, could I ‑ ‑ ‑

GUMMOW J:   Have you left Tambree?

MR CAMPBELL:   I was going to give some references to the joint judgment in Tambree, your Honour.  Could I just give the references?

GUMMOW J:   I think paragraph 46 is very important.

MR CAMPBELL:   That is where I was coming to, may it please the Court.  I did want to point out in advance, your Honours, paragraphs 40 and 41 where your Honours Justices Gummow and Hayne agreed with what the Chief Justice said about the very type of thing that was likely to happen and then at 45 your Honours make reference to Allianz Australia Insurance:

it is doubtful whether there is any “common sense” notion of causation which can provide a useful, still less universal, legal norm.

particularly in the context of a statute, your Honours.  Then at paragraph 46, your Honours:

In Allianz, McHugh J noted that considerations of legal policy may enter into the selection of those causative factors which are determinative of liability.  However, to accept that proposition, as it should be, is not to adopt a quite different proposition that in any given case the ultimate issue is whether “the defendant ought to be held liable to pay damages for [the] harm [suffered]”.  This approach to questions of causation taken by Ipp JA in Ruddock v Taylor was adopted by the Court of Appeal in the present case.

GUMMOW J:   Maybe by the House of Lords as well.  You look at paragraph 48.

MR CAMPBELL:   Paragraph 48, your Honours?

GUMMOW J:   Yes, Lord Nicholls in the Kuwait Case.

MR CAMPBELL: Yes, your Honour, and, indeed, what we say about that, and we are not saying that the defendant ought to be held liable to pay damages for the harm suffered. What we are saying is that when you look at the causation questions according to the purpose of the statute, one purpose of which as expressed in section (2A), as also given effect to by sections 103 and 125, is to maintain order by putting an absolute duty in terms of 125 upon the licensee, a statutory duty, in the context of the criminal law, to prevent disorder occurring on the premises, being violent, quarrelsome, et cetera, behaviour.

The duty for which the respondents contend, then, of course, is a duty arising under the law of negligence but is a duty arising under the law of negligence which is informed, imbued with and given content by the statutory obligations that one party to this relationship is subject to.  It then becomes much easier to put to one side one’s natural revulsion, then becomes much easier, your Honours, to put to – rather than, say, rely upon common sense notions of causation because of the difficulty of doing that in a statutory context, as was pointed out in Tambree, becomes much easier to see what happened in this case as caused by or materially contributed to by the breach of the relevant duty by the appellant.  It is not the sole cause, your Honours, but so far as we are concerned here, it is the relevant cause, we respectfully submit.

HAYNE J:   Now, is that proposition so expressed the last formulation you have just given, a proposition that the presence of security personnel more probably than not would have deterred or prevented?

MR CAMPBELL:   Yes, your Honour. 

HAYNE J:   It is not a material contribution proposition?

MR CAMPBELL:   Well, your Honour, can I answer your Honour’s question, and this is a direct answer to the question, by saying there are two aspects to it.  The first is – and this might be a reasonable way of moving into the duty question – that if you accept that this is not an instance of harm inflicted by a criminal act but rather is an injury or a species of harm created by the conduct of the appellant, then we can say, having created the environment in which disorder would occur, the failure to adopt a security plan which involved the engagement of properly qualified security guards, the complete absence of those provisions did cause or materially contribute to the injuries that suffered the respondents in this case.

HAYNE J:   One gets to questions of causation only if one has first concluded that the venue should have had but did not have designated security personnel.

MR CAMPBELL:   Yes, your Honour.

HAYNE J:   I can understand the proposition which seems to be the finding in the Court of Appeal that the presence of security personnel more probably than not would have deterred or prevented the shooter from entering.  That proposition is right, wrong, that is a separate debate.  What I am presently not understanding is what is the content of the proposition about material contribution, that is, the presence of security personnel or the absence of security personnel.  How does one complete that proposition?

MR CAMPBELL:   Your Honour, the answer to which we would give to your Honour’s question, is by reference to what the Supreme Court of Victoria Court of Appeal said in Club Italia at paragraphs 36 and 44, and that, your Honours, is at (2001) 3 VR 447, paragraph 36 is at page 457. I am sorry, your Honours, that we refer to it in our written submissions as page 456. We wish to correct that. Paragraph 44 is at page 460. May I say, with respect, to your Honour Justice Heydon, that is the matter which your Honour referred to as an interesting possibility in Drakulic at paragraph 115.

FRENCH CJ:   Insofar as you rely on material contribution in the sense of a failure to reduce risk or to engage in risk management as going to your causation argument, how does that fit in with the general principles in section 5D of the Civil Liability Act, namely (1)(a):

that the negligence was a necessary condition of the occurrence of the harm –

and also in relation into 5E is the onus of proof “on the balance of probabilities”.  Can a material contribution which merely increases risk be a necessary condition of the occurrence of the harm?

MR CAMPBELL:   Your Honours – I am sorry, to your Honour the Chief Justice - your Honour, I ‑ ‑ ‑

FRENCH CJ:   It is all right.  You can speak to all of us.

MR CAMPBELL:   Thank you, your Honour.  Perhaps I should.  Could we say that in paragraph 44 we are – as we accept it is not part of the ratio, their Honours in the Court of Appeal made that very clear, but if this Court, which has the constitutional capacity to declare the common law in Australia, adopted that as part of the rationale for a duty imputed to those who manage premises for the onsite consumption of alcohol, then we come into the territory, your Honour – and I hope this is an answer to your Honour’s question – where by bringing these people together for this function in the circumstances which I have outlined already, this was a case where the appellant created the risk of harm that came home.

Given that it had created the risk of harm that, in our submission, came home in the way the Court of Appeal explained in Club Italia at 44, then the omission to have security guards was really an omission as part of a course of conduct upon which the appellant was engaged which led to the creation of the state of affairs, and it was that creation of a state of affairs that caused or materially contributed to the plaintiff’s injury.

MR CAMPBELL:   We would characterise it not as an obligation to, in the special circumstances of the case, reduce a harm that existed anyway but as a case of the generation of harm in the course of their obligations to others which generated the risk and the risk occurred.

FRENCH CJ:   If material contribution does not fit into factual causation, you have to bring it into 5D(2), do you not?

MR CAMPBELL:   Yes, your Honour.  Would your Honour pardon me while I just obtain my copy of the section?

FRENCH CJ:   We have had more than one case in which the Civil Liability Act applied.  Nobody seems to want to talk about it much.

MR CAMPBELL:   I was in court when your Honour Justice Gummow spoke about the Bar being a bit slow to latch on to this, but could I say, your Honours, by way of interpolation, that often the view has been taken – perhaps erroneously no doubt in a particular case – that the provisions do not make much practical difference, but that may not be a correct approach.

Your Honours, the only answer I can give to your Honour’s question is that the causation provisions, or the provisions in relation to causation, made by the Civil Liability Act 2002 do concentrate, like the common law, on terms of both causation and fact and also in terms of the normative standards that have to be brought to bear to make that decision.

GUMMOW J:   Section 5D(2) seems to postulate something that ordinarily seems repugnant to judicial function – namely, a declaration as to anterior rights.  It seems to be saying whether or not responsibility should be imposed on the negligent party.  It seems to be reverting to Kuwait Airways, which we were looking at a minute ago, in the United Kingdom, which we were not very happy with in Tambree, and to be putting it in a statute – there it is.  Would this be a subsection (2) case of 5D?

MR CAMPBELL:   It would not be if your Honours accept the case which we are advancing.

GUMMOW J:   Because?

MR CAMPBELL:   Because (a), it is not an exceptional case, we would say, your Honour, because it is a case which is determined entirely in accordance with orthodox tort law.

GUMMOW J:   Does the Act tell you what an exceptional case is?

MR CAMPBELL:   It is not defined, your Honour.

CRENNAN J:   Established principles.

MR CAMPBELL:   Yes, your Honour.  One would have to have regard to the basic principles and perhaps ‑ ‑ ‑

FRENCH CJ:   It is looking at a situation where a case in which the question arises whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation.  At first blush, it seemed to me that if one is talking about material contribution on the basis of increasing risk as distinct from in all probability it would not have happened if you had done your duty, if one is looking at that, one is looking at a 5D(2) situation.

MR CAMPBELL:   Could I say this, your Honour.  The gravamen seems to be, as your Honours have been asking me about, at the end of the subsection, whether or not and why responsibility for the harm should be imposed on the negligent party.

FRENCH CJ:   This is the area the notice of contention takes us into.

MR CAMPBELL:   Yes, your Honour.  Could I say the “whether or not and why” is really, we would respectfully submit as I have put already and I am sorry if I am repeating myself, engaging or drawing upon the type of normative considerations which inform the law of negligence as Chief Justice Gleeson referred to by way of analogy in Tambree.  One thing that is defined, your Honours, and which might throw some light upon this is that section 5A of the Civil Liability Act gives a definition of “negligence” for the purpose of Part IA where section 5B appears.

Your Honours will see that the definition of “negligence” includes causative action based upon not only the tort of negligence but contract and breach of statutory duty. So that in a given case – and we are not arguing this – say we persuaded your Honours that this was really a case of breach of statutory duty and the duty imposed by section 125, then the relevant question, if subsection (2) was engaged, would be what are the normative standards informing the legislative purpose of section 125 which give us the answer whether or not and why responsibility for the home should be imposed upon the party in breach of the statutory duty.

GUMMOW J:   What do you say about the phrase “necessary condition” in section 5D(1)(a)?

MR CAMPBELL:   I say that firstly it picks up the dichotomy of the difference between a factor being necessary but not sufficient for some legal purpose.

GUMMOW J:   What I am asking, I suppose, is what is the connection, if any, between this phrase “necessary condition” in 5D(1)(a) and the notion of material contribution as explained in various cases including Chappel v Hart?  Does the statute seem to be designed to pull that back in some way?

MR CAMPBELL:   Your Honour, the necessary condition - my submission is that it picks up the “but for” test, that is to say that this would not have happened but for the negligence of the defendant so that the negligence is in that sense a necessary condition but not a sufficient condition to satisfy the relevant legal tests as to factual causation bearing in mind that the context in which this question arises, as your Honours have pointed out to me already, is an exceptional case.  So that in an exceptional case it is not enough that you can say, but for the negligence of a defendant, bearing in mind the extended meaning of “negligence” under section 5A, the harm would not have occurred.  You need to go beyond that and say whether or not and why should responsibility be attributed to the negligent party even if but for its negligence the harm would not have ensued.

HAYNE J:   In this case is 5D(1)(a), when applied to the facts of this case, but for the absence of security personnel this shooting would not have happened?

MR CAMPBELL:   Yes, your Honour.  That is our case.  Then we go on to say, well, the negligence was a necessary condition.  Then you have to go onto the second limb of it, which is, well, what is the scope of the tort?  So the causation question broken – and, your Honours, there is an echo here of what Chief Justice Mason said in March v Stramare about causation, in fact, being a common sense test informed by normative considerations.

GUMMOW J:   Yes, I know, something which I have never accepted.

MR CAMPBELL:   Well, that is what it seems to suggest.

GUMMOW J:   As we were trying to point out in Tambree.  It just does not take you anywhere to talk about common sense.  It is just a common law papering over activity.

MR CAMPBELL:   Yes, your Honour, and I think what your Honour said about arguments by analogy in Dederer, your Honour, in relation to common law method and technique.  Could I say this, your Honour, that what was said Tambree, with respect, by your Honour Justice Hayne was, of course, in the context of causation for a statutory cause of action.  So that in particular it was hard to fit the common sense, such as it is, test into the confines of a statutory cause of action, as Justice McHugh recognised in Allianz v GSF; you have got to look at the purpose of the Act.

GUMMOW J:   What March v Stramare is saying is that you cannot simply say a but for test is sufficient.

MR CAMPBELL:   Yes, your Honour.

GUMMOW J:   It is certainly saying that.

MR CAMPBELL:   Yes, your Honour, and ‑ ‑ ‑

GUMMOW J:   What is then offered in further explanation of that gets one into trouble.

MR CAMPBELL:   Yes, your Honour.  Could I submit, with respect, that 5D(1)(a) is saying that as well, that a but for test is not sufficient, you have got to look at the normative considerations or the normative standards which the particular law invoked is seeking to uphold.

HAYNE J:   Well, that seems to be giving work to 5D(2) in cases where but for is not satisfied.  Is that right?

MR CAMPBELL:   Yes, your Honour.

FRENCH CJ:   If his notice of contention were to be accepted, that would be Mr Toomey’s fallback position.

MR CAMPBELL:   Yes, your Honour.

FRENCH CJ:   Is it yours?

MR CAMPBELL:   I did not think it was my fallback position, your Honour.  This argument I thought I was advancing for the reasons I have sought to rehearse ‑ ‑ ‑

FRENCH CJ:   You put a necessary condition argument up‑front.

MR CAMPBELL:   Yes, your Honour.  Your Honours, we have put Smith v Littlewoods Organisation Ltd on our list of authorities because your Honours might think that what Lord Goff of Chieveley had to say was influential in the thinking of Chief Justice Gleeson in Modbury.  I wanted to cite it in the context of this present debate, your Honours, in relation to causation, to demonstrate and only demonstrate at what might be a superficial level, with no disrespect to his Lordship, about how, in a case like this, those causation considerations that had been referred to, operate.

Now, could I just recap very briefly, your Honours.  Our argument is that there is a duty which is informed by the statute.  The scope of that duty extends to maintaining order on the premises - to exercise reasonable care for the maintenance of order on the premises extending to risks of injury arising because of the tortious and criminal conduct of other patrons.

So that then, your Honours, becomes the normative standard that both the law of negligence and the statute uphold because of the intersection between them both in a case like this.  So then we say that is the normative standard.  We know that there was no security at all, because that is found below, and it is not challenged now.  Let us assume for the purposes of the argument that your Honours have accepted our argument that the performance of the duty or the discharge of it required the engagement of licensed security services in this case – breached because it was not done, as we know.

Then we have an incident, and this argument is informed by the notice of contention as well as by what we say in‑chief, your Honours, but if I can just put it this way – then we have the incident that starts the descent into disorder on the dance floor and as an incident of that disorder, in the way explained by the Victorian Court of Appeal at paragraph 44, one of the patrons goes and gets his gun to take out revenge on Mr Moubarak and shoots my client as well.

In that situation, your Honours, we say there is obviously two causes here, in our submission.  One is the breach of duty by the appellant, the second is the shooting by, we will call him, Mr Abbas.  They are separate independent causes, your Honour, but where – I am about to go to what Lord Goff said – so we say but for the absence of security because they would have intervened as soon as trouble erupted, this would not have occurred or but for adequate security at the door, he would not have got back in.  Even though his act is one of the causes, the cause constituted by the breach of duty remains inoperative, a cause of the respondent’s loss.  So that, in effect, it is treated, as the Court said in Club Italia, as an incident of the disorder or it could be put another way, your Honours, that the shooting is actually a consequence of the breach of duty of the appellant.  Your Honours, Smith v Littlewoods [1987] 1 AC 241 at page 272 your Honours will see at that part of the page there is a reference at the top of the page to Weld-Blundell v Stephens:

“In general . . . even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.”  This dictum may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, “breaks the chain of causation.”  But it also expresses a general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others.

This is the part I wish to emphasise, your Honours:

Of course, if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty.  We are therefore thrown back to the duty of care.  But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing.  There is no such general principle.  We have therefore to identify the circumstances in which such liability may be imposed.

His Honour goes on to set out the various categories, as his Lordship saw them, which we have set out in our written submissions.

MR CAMPBELL:   Your Honours, during the course of the dialogue this morning reference was made by your Honour Justice Gummow to decisions of this Court concerning negligence in a statutory context, including Crimmins and, of course, Pyrenees Shire Council.  Could I say, your Honours, as your Honours will well remember, I am sure, that those principles have been revisited recently by the Court in a case in which your Honour the Chief Justice and all of the Justices sitting today, of which your Honours were members, and that is of course Stuart v Kirkland‑Veenstra [2009] 83 ALJR 623. It is not on the list of authorities and for that I apologise. We have copies from the internet. May I have leave to hand those up, your Honours.

I only proffer this, your Honours, as a – can I put it this way – shorthand way of your Honours refreshing your judicial memory to the extent to which it may need refreshment as to the principles that are established by Crimmins and Pyrenees Shire Council.  Could I just give your Honours some references to it.

In the judgment of your Honour the Chief Justice, the legal analysis – if I can put it that way – concerning the interface of tort and the statute commences at paragraph 59 and goes through to paragraph 63.  Your Honour at 47 to 52 discussed generally the interplay of statute and common law and referred expressly to what Justice Gummow said in Pyrenees Shire Council v Day at paragraph 52.

Could I say that the joint judgment of your Honours, Justices Gummow, Hayne and Heydon, commences to discuss the relevant question at paragraph 111 with the question:

Why, then, does the common law not impose a duty of care?

That is in that case, your Honours, why your Honours came to the conclusion that the duty of care did not arise in that case, notwithstanding the statutory context and your Honours can see ‑ ‑ ‑

GUMMOW J:   These are all cases about statutory power conferred upon public authorities.

MR CAMPBELL:   They are, your Honour.  This case is quite different.

GUMMOW J:   This is a case about an obligation imposed by statute upon a trader as a condition for carrying on a particular business in a particular place.

MR CAMPBELL:   Yes, your Honour, so it is not directly covered by the considerations which form the ratio of either Pyrenees Shire Council or Crimmins, and that distinction perhaps always ought to be borne in mind.  We would submit, your Honours, that given the nature of the obligation in this case, in the context of the express purpose enunciated by section (2A), it is much easier to come to a conclusion that there is a duty imputed by the law of negligence than there is in cases involving statutory authorities or statutory officers. 

Your Honours, could I quickly go the notice of contention and simply say this, that we have set out our arguments in this regard in our written submissions.  We have dealt with it at pages 13 to 15 and part of the reason why we have done that, your Honours, is to look at the idea that does form the ratio in Club Italia that the relationship here of operator of licensed premises and patron is a special duty.  Could I say, your Honours, before I go on that it is remiss of me that I forgot to mention the judgment of Justices Crennan and Kiefel in Stuart and your Honour Justice Crennan and Justice Kiefel dealt with these questions starting at paragraph 131 through to about 138. Could I also say, however, that at paragraph 127 which commences with this statement:

The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm.

But Justices Crennan and Kiefel referred to examples of special relationships which rather went beyond those which were expressly identified in Modbury.  Your Honours will see that added to the list are “carrier and passenger, shipmaster and crew”, the latter perhaps having some relationship with employer and employee in a non‑technical sense. 

It is clear from what the Court of Appeal of Victoria said at paragraphs 40 to 43 and 45 to 46 of their judgment that they drew down upon the reasoning of your Honour Justice Heydon at Ashrafi Persian Trading Co v Ashrafinia, and we have set out at paragraph 51 of our written submissions the particular passages.  They are 65 and 69, your Honours, of Ashrafi, of your Honour Justice Heydon’s analysis of the importance of control, and it is the control that may be exercised over the persons, in particular the perpetrator, which is critical.  Your Honour, I move on, this is not critical to our argument on appeal.

MR CAMPBELL:   Your Honours have heard from my learned friend, Mr Toomey, about contractual entrant, and I adopt, with respect, what he said about that, including the arguments in relation to activities conducted upon the premises.  We would support the argument, your Honours, that a contractual entrant is a category of the old pre‑Zaluzna categories of entrant.  As Thompson makes clear, your Honours, and makes clear at paragraphs 23 to 24, the occupier’s duty extends to activities.

Calin, which was the case which said that the contractual entrant category survives Zaluzna was a case about a slip on a banana peel in a cinema, and if that is not a case of activities on the premises, someone dropping a banana peel, then it is hard to imagine one that is, your Honours, we respectfully submit.

Your Honours, we have set out the material parts of section 74 of the Trade Practices Act and the definition of “services” for that purpose at pages 14 to 15 – I know your Honours can read this.  Could I just add to what was said there, your Honours.  If the contract here has a purpose which includes the provision or is a contract for indeed the provision of, or the use of – or enjoyment of facilities for amusement, entertainment, recreation or instruction, what could represent a more significant breach of that contract than the descent into disorder which actually occurred in this case?

It is worth bearing in mind, may I respectfully submit, your Honours, that the law does uphold the right of a promisee to such a contract to get enjoyment or creation or a pleasurable experience by the provision of an award of damages for the disappointment or frustration or annoyance in that regard when the contract is breached.  May it please the Court.

FRENCH CJ:   Thank you, Mr Campbell.  Mr Sexton.

MR SEXTON:   Your Honours, what I propose to do is to, as quickly as I can, take your Honours to some evidence which is relevant to breach ‑ ‑ ‑

FRENCH CJ:   I am sorry, Mr Sexton.  Before we proceed, how much longer do you think you are going to need?

MR SEXTON:   More than seven minutes, your Honour.

FRENCH CJ:   Yes.

GUMMOW J:   There are a lot off issues on the table now, Mr Sexton.  We need help.

MR SEXTON:   Thank you, your Honour.

FRENCH CJ:   Are we looking at, say, half an hour or 45 minutes?

MR SEXTON:   I think so, your Honour.

FRENCH CJ:   We will continue tomorrow morning at 10.15, and this is on the assumption that we will need to finish by about 11, given the balance of the list.

MR SEXTON:   Yes, your Honour.

FRENCH CJ:   Right, you can proceed for your seven minutes.

MR SEXTON:   Thank you, your Honours.

GUMMOW J:   At slower speed.

MR SEXTON:   Your Honours, can I deal then with a matter that I would not have commenced with but which I can deal with within a couple of minutes, which is the submissions made by my learned friend, Mr Toomey about an earlier incident, he said, at about 1.30, and he pointed to both Mr Jennings’ report in paragraph 422 and to a COPS report at page 509.  Firstly, if I can take your Honours to the COPS report at 509.

FRENCH CJ:   Presumably those statements were treated below as though they were a continuation of the statement of assumptions.

MR SEXTON:   They were, your Honour.  There is no doubt that what Mr Jennings was saying at paragraph 1422 was a continuation of the assumptions because, for example, he refers to material that came from the respondents.  That is the first point.  Zalewski, I should say, not Jennings.

FRENCH CJ:   Yes, that is right.

MR SEXTON:   Everything that was said up until the next page were assumed facts.  That is the first point.  The second point, briefly, is that the COPS report at 509, as was pointed out earlier, there is a notation “no persons fighting” and there is another report at exactly the same time taken by the same police officer at page 510 which, just before line 20, refers to:

20+ PEOPLE IN THE ST AFTER A PARTY MAKING NOISE.

More importantly, Mr Moubarak in his oral evidence at page 86, which is a very short page of transcript says that he had seen nothing of any kind of disturbance.  At page 98 at about line 10 he said he had not seen any other signs of trouble during the evening at the premises.  At 130, just below line 10, there was nothing which he observed which led him to think that this fight was about to erupt and that there was nothing which had seen which led him to think that there was going to be a fight involving 20, 30, 40 or 50 people.  Mr Bou Najem at 194, just below about line 25, was asked:

Q.       Sometime after midnight did you see or hear anything unusual?
A.       *No.*

Then he was asked about being shot and gave an account of the fight on the dance floor.  Neither Mr Toauk, who gave oral evidence, or any of the witness statements mentioned any incident occurring prior to the fight on the dance floor at about 2.30.  So that although he is correct that Mr Kouzi said that he had dealt with somebody earlier, the evidence does not establish that that involved anything more than one individual.  There was no disturbance earlier in the night.  That is the first point.

The second point, your Honours, is that my learned friend, Mr Toomey, took your Honours to the evidence in‑chief from Mr Moubarak and Mr Toauk about the way in which the fight on the dance floor developed.  Our point about that is not the length of time but the speed with which it escalated, and this goes to the question of causation because part of the submission about causation is that this should have been snuffed out at the very beginning.  I can take your Honours very briefly to the cross‑examination of Mr Moubarak at page 132.  It starts at about line 10:

Q.       And events developed very very quickly once the dispute between the women became apparent to other people on the premises?  Is that right?

I will not read it out to your Honours, but I will ask your Honours to notice what is on the rest of that page and it leads up to the middle of page 133 with the question:

Q.       Whatever was the original cause of the altercation as between the women, within seconds there are a large number of men that were involved in the fight.  Is that right?
A.       That’s right.

Mr Toauk at page 275, at the bottom of the page starting at line 55 was asked about how it developed.  Then at the top of page 276:

Q.       You were there in your mind breaking it up?
A.       Yes.

Q.       It appeared to you that there were other people who were there who were aggravating or escalating the situation?
A.       Yeah, a bit of everything.

Q.       That was all happening all at once?
A.       All at once.

Q.       It got bigger and more ferocious very quickly, didn’t it?
A.       A lot of egos out there, mate; yeah, it did.

Then at line 40:

Q.       Despite your best endeavours, as you say, it continued to get bigger?
A.       Yeah.

Q.       That went on for some time?

So our point is that there was no doubt that the fracas went on for some time, but it developed very quickly, it escalated very quickly, and that takes us to the proposition which I will come back to as a matter of fact tomorrow, that the reasonable response in order to snuff out that part of the incident would have required more than the one or two security personnel that were referred to in the letter of particulars.  It would have required the six or eight that Mr Jennings initially proposed as being the reasonable response, but which ultimately Mr Jennings conceded was not necessary, based on his understanding of the prior history and the nature of the function.  If your Honours please, I will come back to that tomorrow morning.

FRENCH CJ:    Thank you, Mr Sexton.  Mr Toomey, it might be convenient if you have a draft amendment to your notice of contention or a fresh notice of contention to deliver it to Registry tonight, and obviously ‑ ‑ ‑

MR TOOMEY:   Your Honour, could I perhaps read it onto the record so my learned friend knows tomorrow morning what it is - overnight if he needs it.  It is rough draft, your Honours, but I will have it in form tomorrow morning.  The first respondent contends that causation was established in the case on an alternative basis to that relied upon by the Court of Appeal because the failure of the appellant to engage competent security staff resulted in a material increase in an existing risk of injury to the respondent from violent acts of other patrons, and so materially contributed to the injuries suffered by him.

FRENCH CJ:   Yes, well you are going to put that into printed form, hopefully tonight.

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   All right.  Court will adjourn until 9.15am tomorrow for pronouncement of orders and 10.15 for this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 SEPTEMBER 2009