Belinda McNally v Douglas Spedding And Nicole Nobles v Douglas Spedding

[2006] NSWDC 113

CITATION:	Belinda McNally v Douglas Spedding AND Nicole Nobles v Douglas Spedding [2006] NSWDC 113
HEARING DATE(S):	21 November 2005 - 25 November 2005
JUDGMENT DATE:	19 June 2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	10455/2001 McNally v Spedding - Verdict and Judgment for the plaintiff against the defendant. Defendant to pay the plaintiff's costs. Liberty to apply for any additional or ancilliary orders; 10456/2001 Nobles v Spedding - Verdict and Judgment for the plaintiff against the defendant. Defendant to pay the plaintiff's costs. Liberty to apply for any additional or ancilliary orders.
CATCHWORDS:	Liability of hotelier to patron - Patron assaulted outside one part of hotel and her watch stolen - Enters another part of hotel and speaks to manager - Requests assistance - None provided - Leaves hotel - Induced to enter other part of hotel to seek to recover watch - Serious assault by gang of offenders - Plaintiffs succeed - Numerous authorities considered - On appeal
LEGISLATION CITED:	Liquor Act 1982 Casino Control Act 1982
CASES CITED:	Oxlade v Gosbridge Pty Ltd (unreported, Court of Appeal, 18 December 1998, 40006/97; BC 9807725) Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226 Blatch v Archer (1774) 1 Cowp 64, 98 ER 969 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 Public Transport Corporation v Sartaric [1997] 1 VR 168 Guildford Rugby League Football and Recreational Club Ltd v Coad [2001] NSWCA 139 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 Proprietors of Strata Plan 17226 v Drakulic (2002) 55 NSWLR 659 Lanahmede Pty Ltd v Koch [2004] SASC 204 TAB Ltd v Atlis [2004] NSWCA 322 T. Wagstaff v Haslam [2006] NSWSC 294 Preston v Star City Pty Ltd [1999] NSWSC 459
PARTIES:	Belinda McNally (Plaintiff) Nicole Nobles (Plaintiff) Douglas Spedding (Defendant)
FILE NUMBER(S):	10455/2001; 10456/2001
COUNSEL:	P.A. Beale (for McNally) C.T. Barry QC and E. Chrysostomou (for Nobles) A.M. Colefax SC and P.T. Newton (for Spedding)
SOLICITORS:	Stuart McDonald & Associates Solicitors (for McNally) Pitcher Walton & Co. Solicitors (for Nobles) Colin Biggers & Paisley Solicitors (for Spedding)

JUDGMENT

HIS HONOUR:

A. BACKGROUND

1 Each of the above plaintiffs was bashed and injured on premises known as the Bald Faced Stag Hotel, Parramatta Road, Leichhardt in the early hours of Sunday 18 October 1998. There is no dispute that the defendant, Douglas Spedding, was the licensee and occupier of that Hotel at all relevant times.

2 The evidence before me establishes that these actions were initially referred to an arbitrator. They were then heard by Finnane J who, on 12 September 2003, gave a verdict and judgment for the defendant in each action. In case the matter went further, his Honour assessed the damages of each plaintiff. He assessed Ms McNally’s damages as being $64,340 and Ms Nobles’ damages as being $430,362. The plaintiffs appealed to the Court of Appeal and were successful: [2004] NSWCA400. The Court of Appeal (Sheller JA, Pearlman AJA and Windeyer J) set aside the orders made by Finnane J in favour of the present defendant and ordered a new trial in this Court limited to liability. Leave to appeal to the High Court was refused on 27 May 2005: [2005] HCA Trans 367. The re-trial took place before me between 21 November and 25 November 2005, when I reserved my decision. It has been agreed that if the plaintiffs be successful, that judgments will be entered in their favour for the amounts assessed by Finnane J together with interest on each amount at 9% per annum from 13 September 2003 to the day of this judgment.

3 As will be clear to anyone who reads the decision of the Court of Appeal to which I have referred and these reasons for judgment, the evidence presented to Finnane J on liability and that presented to me are quite different. Necessarily, the factual arguments put to me must have been different to those put to Finnane J. In particular, the defendant called no oral evidence before me and tendered no witness statement other than a statement made by Ms Nobles to the police on 6 December 1998.

B. THE RELIABILITY OF THE EVIDENCE

4 Oral evidence was adduced by the plaintiffs from Ms McNally, Ms Noble, Mr Scott Drennan and Senior Constable David Hilton Gooley. There was no suggestion made that the evidence of the Senior Constable was in any way unreliable. However the defendant submitted that the evidence of the plaintiffs, on contentious matters, lacked credibility and an attack was made on the creditworthiness of Mr Drennan. The following matters need to be considered:

i) Between the occurrence of the events in question and the giving of evidence before me, seven years had elapsed; this is a very lengthy period of time in which one would expect memories to dim, to become more unreliable;

ii) however, in the case of the plaintiffs, they did need to recall the events in question from time to time thereafter and this would tend to keep the memory alive; circumstances leading to the recall of memory include: giving histories to medical practitioners, giving statements to the police, giving instructions to legal practitioners, giving evidence to an arbitrator, giving evidence to Finnane J and preparing to give evidence before me;

iii) in the case of Mr Drennan, the evidence only indicates his need to recall what occurred when he gave a statement to a lawyer and when he gave evidence before Finnane J, prior to giving evidence before me;

iv) for reasons which I shall outline at greater length later, it is more probable than not that each of Ms McNally, Ms Nobles and Mr Drennan was moderately affected by alcohol at the time of the events at the Bald Faced Stag Hotel; unusual, unexpected or startling events they might remember but it is not likely that they would remember particulars or details that would not fit into such categories.

These considerations go to the reliability of the evidence, not to honesty of the witnesses. I formed a favourable impression of each of Ms McNally, Ms Nobles and Mr Drennan and I accept that each sought to tell me the truth. What I must guard against are the prospects of reconstruction and rationalisation.

5 Ms Nobles sustained very serious injuries, including a head injury. A CT scan of the brain revealed fractures of the skull, a shallow extra-axial haemorrhage in the left fronto-temporal region and an associated subarachnoid haemorrhage. She was in hospital for about three weeks. She was rendered unconscious in the assault and was still unconscious when the ambulance officers removed her from the hotel (T109.11). The evidence before me suggested a number of weeks of post-traumatic amnesia. Ms Nobles was interviewed by the police on 6 December 1998. At that time she said this:

“4. About 9:30pm or 9:45pm we left the [Leichhardt] [H]otel and began to walk home. At this point my memory is a bit of a blur. All I can vaguely remember is starting to venture down Balmain Rd.

The next thing I can remember is waking up in hospital. I think this was early November or late October before I even realised where I was.”

6 On 9 December 1998, Ms Nobles was assessed by Dr Laurie Miller, a clinical neuropsychologist. His report (Ex.3) contains this history:

“Ms Nobles has no memory for the assault that occurred on 18/10/98, but she has been told that she and two friends were beaten and kicked by a number of men in a pub. Her next clear recall she dates to two weeks after the incident, where she woke up on the 11th floor of [Royal Prince Alfred Hospital]”.

7 Ms Nobles has subsequently given evidence to his Honour Finnane J and to me of the events on the way to and after reaching the Bald Faced Stag Hotel. How reliable is such evidence likely to be? In addition to the considerations numbered (i) to (iv) above, Ms Nobles’ very severe head injury explains a significant loss of memory. Since December 1998 has there been true memory recall or reconstruction? Ms Nobles gave this evidence in chief to Finnane J (Ex.M, p86, lines 5 to 8):

“Q: Would it have been about 6 December 1998 that you provided a statement to the Police?
A: Yes.

Q: Did you at that stage tell the Police what happened?
A: From only what I could recall.

Q: Right, and since that date has your memory of the events changed at all?
A: It’s just a little bit clearer from the trip down from Leichhardt to the hotel but otherwise there’s no memory after that.”

8 That evidence was given after Ms Nobles had told his Honour what had happened at the Bald Faced Stag Hotel. In her evidence before me, Ms Nobles became confused as to the route taken between the Leichhardt Hotel and the Bald Faced Stag Hotel, and in cross-examination admitted that she had “honestly” no memory of the actual route taken between the two hotels. Although Ms Nobles volunteered on one occasion that “[s]ometimes my memory kicks in”, I have concluded that it is more probable than not that Ms Nobles’ recollection of events at the Bald Faced Stag Hotel is a reconstruction, probably based on the memories of Ms McNally.

9 After 18 October 1998, Ms Nobles and Ms McNally were living together in a loving relationship and it is likely that what occurred on 18 October 1998 was discussed, supplementing Ms Nobles’ limited recall. This is perfectly understandable, it is not collusion, but it does explain, in my view, how Ms Nobles now “remembers” what she could not remember in December 1998.

C. EVENTS PRIOR TO THE JOURNEY TO THE BALD FACED STAG HOTEL

10 On Saturday 17 October 1998, Ms Nobles had worked as a concrete pumper for Arrow Concrete at Annandale. She returned home at approximately 3pm. She had a “nap”. About 4pm or 4:30pm her then “girlfriend”, Ms McNally arrived, together with Ms McNally’s long time friend, Ms Barbara Maloney. Ms Nobles was then living at 267 Parramatta Road, Leichhardt. The three ladies (nicknamed ‘Nic’, ‘Billie’, and ‘Bugsy’ respectively) then walked to the Leichhardt Hotel, on the north-west corner of the intersection of Derbyshire/Balmain Road and Short Street, Leichhardt. That Hotel was the venue for homosexual women at that time. That Hotel had provided sponsorship to Ms Nobles to compete in the Gay Games, in her sport of playing pool. According to Ms Nobles, the three had arrived at the Hotel around 5pm. Ms McNally estimates the time of arrival at about 4:30pm. Nothing turns on that minor discrepancy. The three ladies consumed alcoholic beverages at the Leichhardt Hotel.

11 The next question is: when did they leave the Leichhardt Hotel? Ms McNally estimated 9:30pm and Ms Nobles estimated anywhere between 9pm and 10:30pm. In my view those were only guesses. One needs to work backwards. The plaintiff’s injuries were sustained in what became a brawl at the Bald Faced Stag Hotel. That brawl must have occurred shortly after 1am on Sunday 18 October 1998. The police were called at 1:10am on that day. The ambulance which took Ms McNally to hospital was booked at 1:17am and arrived at the Hotel at 1:24am. This was the first ambulance to arrive at the scene. The police arrived before the ambulance, i.e. before 1:24am. Clearly the brawl erupted shortly before 1:10am when the police were called. The events at the Bald Faced Stag Hotel described by Ms McNally could not have taken any more than half an hour: the earliest they arrived there would have been 12:30am. The proposed route or a usual route between the two hotels would have taken no more than half an hour to walk: the earliest they left the Leichhardt Hotel would have been midnight. It appears to me to be more probable than not that the three ladies left the Leichhardt Hotel about midnight. They would have had been drinking in that hotel for approximately 7 hours. If one accepted the plaintiffs’ estimates of the time of their departure from the Leichhardt Hotel, their movements over a period of two and a half or three hours would be “unexplained”. However, there is no suggestion that they visited another hotel en route, or a restaurant or café or a friend’s house. The only plausible explanation is that they lingered on at the Leichhardt Hotel for longer than they thought. The reason offered for leaving earlier than midnight suggests to me rationalisation: the Leichhardt Hotel generally becoming quiet at 9:30pm when the patrons left to go to nightclubs. This may represent what usually happened, not what actually happened on this night. Accepting as I do that the three ladies stayed at the Leichhardt Hotel for approximately 7 hours, I have no hesitation in finding that they were moderately affected by alcohol prior to leaving that hotel. Ms McNally admitted as much in her statement to the police (Ex.H).

12 The ladies intended to go from the Leichhardt Hotel to Ms Nobles’ flat on Parramatta Road. The evidence discloses two routes between those termini: (1) along Balmain Road to Parramatta Road, then east along the northern side of Parramatta Road, (2) along Balmain Road, left into Prospect Street, then right into Hay Street, then to Parramatta Road and then east along that road to Ms Nobles’ flat. To me, the map (Ex.K) confirms those two practicable routes and does not suggest any others. I accept that on this occasion the second of the above two routes was taken. My main reason for so finding is that, had the first route been adopted, it is unlikely that what did occur shortly after 1am on 18 October 1998 would have occurred. The Bald Faced Stag Hotel (hereafter “the Hotel”) has three entrances from Parramatta Road. The Hotel is on the corner of Balmain Road and Parramatta Road. The entrance closest to that corner (the western entry) is to the bottle shop. The central entry is to the public bar. The eastern entry is the pool room known as “Ground Control”. The evidence of the plaintiffs is that they approached from the east i.e. from the direction of Hay Street. As they passed the entry to Ground Control, Ms McNally was assaulted and robbed of her wristwatch. Ms Nobles had gone ahead into the public bar, through the central entry. Ms McNally was to follow Ms. Nobles. If the ladies had approached from Balmain Road, there would have been no reason to walk past the entry to Ground Control, and no opportunity for the robbery to have occurred. Ms McNally says the robbery occurred and I accept her in that regard and in that she is supported by Mr Drennan, who later heard an exchange when the ladies entered Ground Control and Ms McNally sought the return of her wristwatch. The taking of the second route, causing an approach to the Hotel from the east, is more plausible in light of what subsequently occurred.

13 I have already adverted to the evidence of Ms Nobles concerning the route taken to the Hotel. The second route is that to which she deposed to Finnane J (Ex.M p.80 lines 31-33) and she maintained that in cross-examination before his Honour (Ex.M p.99). On the afternoon of 21 November 2005, before me, she deposed to adopt the first route but, first thing on the morning of 22 November 2005, she admitted to error and eventually adopted the second route, with the admission that her memory was deficient. However, in cross examination she did recall walking home on an earlier occasion when an “accident” befell her (T48.51 to T49.14) and I drew the inference that she was recalling an earlier occasion when the second route had been adopted. This lends a little weight to my earlier finding. Again, it must be recalled that the ladies’ intention was not to go to the Hotel but to Ms Nobles’ flat. If the intention had been to go to the Hotel it seems to me more likely that the first route would have been adopted.

D. THE JOURNEY TO THE BALD FACED STAG HOTEL

14 This journey commenced as a journey to Ms Nobles’ flat. For reasons just given, I accept that the second route I have described was adopted. At some stage along the way, a decision was made to make a “detour”. A decision was made to have a “roadie”, another drink “for the road”. Ms Nobles’ evidence suggests that that was proposed by Ms Maloney (T35.7, T57.27) who “loves a drink”. That may be rationalisation or reconstruction but nothing turns on the identity of the proposer of the “roadie”. When they reached the intersection of Hay Street and Parramatta Road, instead of turning left to head to Ms Nobles’ flat, they turned right to head west to the Hotel. The map (Ex.K) suggests that the distance to the Hotel from Hay Street could not have been great.

15 Ms McNally thought that this journey took “about half an hour” (T13.39). In cross examination it was suggested that it would take approximately 15 minutes to walk between the two hotels, a proposition to which Ms McNally would not assent. She went on to say this:

“Q: How long has it taken you?
A: On an average stroll 20, half an hour, depends if I stop, have a chat, light a cigarette, it all depends”.

16 Accepting that each of the women was moderately intoxicated, I would not have expected them to walk briskly, as the cross-examiner later suggested to Ms McNally, a proposition with which Ms McNally would not agree. However, the map does not suggest that the length of this journey was very great. As I have already indicated, this journey could have taken no more than half an hour; even allowing for a slow pace and short stops.

17 Ms Nobles told me that Ms McNally and Ms Maloney were “pretty slow walkers”, but she was a fast walker and she was generally ahead of the other two (T37.33). Ms Nobles also told me that as the three ladies approached the Hotel she was ahead of the other two. More importantly, Ms McNally said that Ms Nobles was slightly ahead of her (Ex.H, para.6) and I therefore accept that as three approached the Hotel Ms Nobles was walking ahead of the other two ladies.

E. THE BALD FACED STAG HOTEL

18 The Hotel is on the corner of Balmain and Parramatta Roads at Leichhardt. The intersection is a ‘T’ intersection. Balmain Road runs from north to south and is the stem of the ‘T’. Parramatta Road runs from east to west and is the head of the ‘T’. The Hotel is in the north-eastern corner. The Hotel may be described as divided into halves by a wall running north to south. The eastern half is a pool room known as Ground Control. The western half comprises the public bar. In the south-western corner of the western half: i.e. on the very corner of the intersecting roads is a bottle shop. In the south-western corner of Ground Control is a poker machine area, around part of which, at least, was a glass brick wall. Between the two halves of the Hotel is a connecting doorway. That doorway leads from the public bar area open to patrons to the poker machine area. That door is either a glass door or a door containing glass panels. There is no suggestion that the glass was opaque. Ms Nobles suggested that the door was locked or not in use but the inference I drew from the evidence of Mr Drennan was that it was unlocked and could be used as a means of access between the two halves of the Hotel.

19 As I stated at the commencement of these reasons, there is no dispute that the defendant was the licensee and occupier of the Hotel. There is no suggestion that he was present on the evening of 17/18 October 1998. There was a staff of three. Such is the only finding available on the evidence. There was a Mr Jason Spears (or Spiers) who was described as the manager and who, on the evidence before me, was the person in charge of the Hotel on the night in question. There was a young lady behind the bar of the public bar, which was in on the western side of the western half, closest to Balmain road. She might be given the traditional appellation of barmaid. There was a young man in his mid to late twenties behind the bar in Ground Control. The position of that bar is not relevant for current purposes but can be seen in the plan, which is Ex.2. At material times Mr Spears was not behind either bar and the inference, which I draw, is that he was able to move between the two halves of the Hotel.

20 Mr Drennan had some familiarity with this Hotel. He had lived locally for most of his life at Lilyfield, Leichhardt and Stanmore, moving to the Parramatta area in about 1999, after the events now in question. He had met his girlfriend at this Hotel. He would not describe himself as a regular drinker or as a regular patron of this Hotel, but he clearly was visiting it beforehand. He said that on one or two occasions he had observed the presence of bouncers at the Hotel. It is common ground that none was present on this evening. Mr Drennan had seen a number of outbreaks of violence at this Hotel before the evening in question. Before Finnane J Mr Drennan referred to “a few brawls”. He went on to give this evidence before his Honour:

“Q: You said that you experienced some brawls there previously.
A: Yes.

Q: Were they of the magnitude of the brawl that you experienced on 18 October 1998.
A: Nothing like that, no. Normally it’s just people having I guess personality clashes or someone did something wrong and just, you know, these things happen, you know, just like any other bar.

Q: So it usually between – usually people you witnessed, were usually between two individuals.
A: That night, it was between –

Q: Not on that night, the ones you say you witnessed prior to 18 October 1998.
A: Yes, just individual people, having a whatever it was.

Q: An altercation.
A: Altercation, yes

Q: And as far as you can recall was those altercations resolved by staff that were working there.
A: Yes, I guess yes.

21 The inferences to be drawn from this evidence are:

i) outbreaks of violence had occurred at the Hotel in the past, and such was known or ought to have been known by the defendant; and

ii) the defendant had, at times in the past, engaged security staff and could, therefore, do so if he wished

22 Present on the evening of the 17/18 October 1998 was a group of young men and women to whom I shall refer to as the “gang”. Ms McNally estimated that there were about 15 males. Mr Drennan said that there were “about at least 7 to 10”. This group of males was accompanied by “girlfriends”, according to Ms McNally. I accept that evidence from Ms McNally as it ties in with details she gave in her statement to the police on 30 October 1998 (Ex.H). The appropriate finding on this evidence is that the gang comprised about 15 persons both male and female. The males in the group can be described, using the politically correct circumlocution, as being of Middle Eastern appearance. They were described by Ms McNally as being between 18 and 20 years old with a distinctive hairstyle and dress, wearing white singlets, chains and crosses. A colourful description of the gang was provided to Finnane J by Ms Nobles (Ex.M p.83) but is likely to be a reconstruction based on stereotypes. They were in Ground Control, playing pool.

F. THE FIRST ASSAULT

23 In her statement to the police Ms McNally said this:

“6. About 10:15pm to 10:30pm outside the pool hall ‘Ground Control’ which is adjacent to the Bald Faced Stag Hotel we saw a young Mediterranean male talking on the mobile phone. Nicole said something like “Look, at the yuppie on the phone” she was slightly ahead of us at the time. He said to me “What did you say?” I said, “I didn’t say nothing”. He said something after that but I could not understand what it was. He then hit me on the left side of my face connecting with my jaw. He hit me with a closed right fist. I fell to the ground. He then kicked me in the stomach about two to three times. He then took my watch off my wrist and went inside the pool hall. Barbara then pulled him off me and picked me up and walked me into the Stag Hotel”.

24 Ms McNally told me on oath that the statement was to the best of her knowledge true and correct. I have already found that Ms McNally’s timing of this event is improbable. It appears to have occurred shortly after 12:30am. I do accept that the ladies approached the Hotel from the east, so that the first entry which they passed would have been the entry to Ground Control. This entry was a pair of double sliding glass doors activated by a sensor. This entry is set back from the footpath, about one metre. This area is paved with grey tiles which contrast with the black bitumen of the footpath. The inference to drawn from photographs (exhibits D and E) and from the plan (Ex.2) is that this grey tiled area was part of the land on which the Hotel had been erected. The setting back of the entry may have been necessitated by the use of sensor-activated sliding doors. I accept that the young man with the mobile phone was on this grey tiled area and that is where Ms McNally was assaulted. Counsel was very diligent in establishing that this assault occurred on the land occupied by the defendant and was successful in so doing, although, to use the words of Gleeson CJ, “[i]t would be very surprising if these cases are decided by a surveyor”: [2005] HCA Trans 367,p.8. Of course, Ms Nobles may have said something more derogatory than “look at the yuppie on the phone”. However, whatever was said appears to have been taken as derogatory by the young man who also appears, mistakenly, to have thought that it was said by Ms McNally. In retaliation he assaulted her and then robbed her for good measure. I accept that Ms McNally was assaulted and robbed as she said.

25 It is to be noted that Ms McNally’s wristwatch was of significance to her: it was a gift from her parents. This, together with any intrinsic value the watch had and any inconvenience arising from the loss, would motivate her to seek its recovery.

THE INTERLUDE

26 Ms Nobles, preceding the other two women, was unaware of what had happened behind her. She entered the Hotel through the central entry, into the public bar. She was ordering drinks. Ms McNally’s statement continues:

“7. Nicole was inside the pub ordering drinks and when we went inside we told her what had happened. She became angry about it and went and told a person at the pub. I believe that this person was the boss[’] son. He was Australian tall, thin, about my age.

8. This man did not seem that interested in our problem, so we just decided to leave”.

27 The “person at the pub” to whom Ms Nobles spoke was Mr Jason Spears. Both the plaintiffs believed that he was the defendant’s son. However, it was accepted by all Counsel that it was in fact Mr Jason Spears.

28 In her evidence before me Ms McNally said that after the assault she entered the Hotel, the inference being by the central entry, into the public bar. She said that she told Ms Nobles what had happened after Ms Maloney had first spoken to Ms Nobles. Ms Nobles spoke to another person then, but Ms McNally did not overhear that conversation. Ms McNally then said that the next thing to occur was this:

“ I remember vaguely one of the people that worked there had asked myself to point out what had happened. Not what had happened, sorry, if I’d point out the person who’d done it. And then he vaguely said to me, well, he can’t help me either way, so”.

29 Ms McNally went on to give this evidence:

“Q: The person who was employed at the hotel who had a conversation with you which led you to go and point somebody out. Just tell us what the conversation was and what you actually did?
A: Okay. Basically all that was really said was that I’d been assaulted out the front of their premises in front of the pool hall. I asked him if he could assist me. Basically he had said, “No, unfortunately we don’t have enough staff, I can’t assist you.” But he did ask me to show them who they were.

Q: What did you do?
A: He – I know I looked or walked through somewhere with the gentleman to point out who the person was and then came back and left.”

She was then asked to whom did she point and she identified a male gang member.

30 The evidence of Ms Nobles on this gives greater detail but, for reasons that I have already given, is likely to be unreliable. In particular she gave evidence about going to the door between the two halves of the hotel, through which Ms McNally identified her assailant. That raised an issue as to whether it was physically possible to identify someone in Ground Control through the glass door. On this, Ms Nobles was challenged before Finnane J and before me. Mr Drennan gave evidence on this issue before his Honour and before me. Before his Honour, Mr Drennan said that there was a glass brick wall around the poker machine area from the ground “almost to the ceiling”. This would have made it almost impossible to identify anybody in Ground Control: the plan (Ex.2) and the evidence of Mr Drennan before Finnane J establishes that. Before me, Mr Drennan said that the wall “ wasn’t complete at the actual time”. That raised a secondary issue as to whether Mr Drennan had visited the Hotel since 18 October 1998. He could not remember doing so before Finnane J but did remember doing so when he gave evidence to me. Those issues do not, in my opinion, need to be determined but if it were necessary to determine them, I would determine them against the defendant for the following reasons:

(a) As I have already stated, I formed a favourable impression of Mr Drennan and accept that he did his best to tell me the truth; whilst there is inconsistency between that which he told Finnane J and that which he told me, I formed the view that he was deeply reflecting when he gave evidence to me: the significance of what he said earlier may not have dawned on him until later;

(b) Mr Drennan’s evidence before Finnane J indicates, in places, that he had to come out of the poker machine area to enter Ground Control to see what was happening (Ex.N, p.67) but also indicates that one could see into Ground Control from the poker machine area (Ex.N, p.70, ll 33-38); before me, Mr Drennan said that he could see what was happening from where he was playing a machine (T79, ll 26-38).

(c) it would have been very easy for the defendant to have adduced evidence as to when the glass wall was completed, e.g. from the builder who had built it or was building it, the defendant himself, any member of staff, any regular patron, but no attempt was made to do so.

31 The reason why, in my opinion, I do not need to decide those issues is because Ms McNally’s evidence is not that she identified her assailant by looking through the glass (panelled) door. She said, “I know I looked or walked through somewhere with the gentleman to point out who the person was” (my emphasis). That is consistent with her walking through the poker machine area to look into Ground Control through the doorway between the poker machine area and the pool room. I accept that Ms McNally did identify her assailant as one of the gang in Ground Control to Mr Spears. I also accept that, antecedent to that, Mr Spears was advised of what happened to Ms McNally. I have no hesitation in finding that Ms Nobles spoke to Mr Spears. The two were known to each other from previous meetings at the Hotel. Ms Nobles had previously danced with him at the Hotel. Human experience indicates that the likely topic of conversation would have been what had just occurred at the entrance to Ground Control. If that had not been raised by Ms Nobles with Mr Spears, why would he ask Ms McNally to identify her assailant? That action is only rationally explicable by Mr Spears’ having been informed of the assault and robbery. I also accept that Mr Spears declined to offer assistance because he had insufficient staff to deal with the gang. He must have perceived that the gang members would assist each other if an unwelcome approach were made to one of them.

32 Ms McNally went on to tell me that after she had identified her assailant and help was declined, she and the other two ladies left the hotel, leaving their unconsumed drinks behind. They left through the central entry and turned to the east, in the direction of Ms Nobles’ flat.

33 Ms Nobles’ evidence in cross examination as to what happened at this time is this:

“Q: Was it at that moment, when he said he’d like to help you but he couldn’t because of an absence of manpower, that you announced that you were leaving the premises?
A :I just told my guy, just sit babe, let’s not worry about it, let’s just go home. I’ll get you another watch.

Q: Is it in fact the case that you probably said to Ms McNally, “This is fucked, let’s not worry about it, let’s just go home”?
A: Well, be working in concrete, sir, that’s every second word so I could have said FUCK.”

34 The statement, which Mr Colefax put to Ms Nobles, is that which she volunteered to Finnane J (Ex.M p.83 lines 41-42) as being probable. The important point, however, is that the cross examiner accepted (and had earlier accepted) that the person to whom Ms McNally identified her assailant was Mr Jason Spears.

H. THE MAJOR ASSAULT

35 This part of my reasons might have been headed “The Second Assault” as it was the second assault upon Ms McNally. However, it was the only assault on Ms Nobles. In any event, as the case has been presented and argued before me (although I have not read the reasons for judgment of Finnane J nor any of the evidence before him, other than that tendered to me), Ms McNally’s damages flow from this assault rather than from the first.

36 Ms McNally’s statement to the police goes on to say:

“8. … Barbara then saw the guy who assaulted me and took my watch. She was standing in the doorway of the pool hall and he was standing with a lot of Mediterranean males. She said “We don’t want any trouble, can we just have the watch back?” One of them said “If you want it, come inside and get it”.

9. The three of us decided to go in and we walked up to the guy who just said “I’m here now, can I have my watch?” He said “I don’t know what you are talking about, what watch?” They started talking in their own language. I was then hit on the back of the head with a pool cue. I fell to the ground and then got back up. I tried to hit the man that hit me. The next thing I knew was that I was getting hit by pool cues and then kicked as I was on the floor. I could hear the girls in the pool hall egging them on. They were yelling “Get the dykes”. I know Barbara was on top of me trying to protect me. I could not see what has happening to Nicole at that time.

10. Barbara dragged me over to another part of the room and I could see that there was a brawl happening in the pool hall. I could see Nicole unconscious laying on the floor. There was some males who I don’t know standing over her trying to protect her and they were getting hit by the other males as they were trying to get to Nicole”.

37 In her evidence in chief, Ms McNally gave more detail as to what occurred at the commencement of this action:

“A: We walked out from the Stag hotel, turning left onto Parramatta Road and right beside that is the part of the pub called Ground Control and there use to be a bus stop bench there. We were all just talking and then my friend Barbara Maloney, because the doors were retaining, they open, she walked up near it and the doors opened and she called out, “Listen, I was wondering what would be the chances of, you know, giving us the watch back” and they basically said, “Yeah, that’s ok, well, come and get it then” so we did.

Q: Tell us what happened after that?
A: We walked in, myself and Barbara Maloney, that is. Nicole didn’t really want to go in but then she followed anyway and then we got to about the second pool table where the gentlemen were and I just walked up to them and said, “Well, I’m here now, may I have my watch” and they said, “We don’t know what watch you are talking about” and then from there on I got hit over the head and everything happened from there I did try to protect myself, I did try to get up but he just kicked me back down, so - -

Q: What were you hit over the head with?
A: I was hit over the back of the head with a pool cue.”

38 She went on to tell me that she was walking towards the male who had earlier assaulted her when she was hit from behind by a pool cue wielded by a person unknown to her. She tried to rise but was kicked down to the ground. Ms Maloney sought to cover Ms McNally with her body, but by then a general brawl had erupted. Ms Maloney dragged Ms McNally to the back of the pool room. She looked back towards the entrance and saw Ms Nobles lying on the ground, with a “lot of other people around her”. There is no dispute that Ms Nobles was very grievously injured.

39 Mr Drennan was playing the poker machines. He heard two ladies (probably Ms McNally and Ms Maloney) asking male gang members about a watch. He said this:

“I remember one of the girls saying something about some kind of sentimental value, can you please give it back to me, I’ve had it for a long time – yeah, and these gentlemen just kept like sort of palming them off, I don’t know, like it didn’t matter or something, I don’t know”.

40 At some stage he came out of the poker machine area “to see what was going on”. The argument seemed to carry on for a bit too long and he “could see something was going to happen eventually”. This sequence of events is not in the order given by Mr Drennan in his evidence but logic and commonsense indicate such an order. The brawl erupted. Pool balls were being thrown. Mr Drennan started collecting balls and depositing them in the pool table pockets to deplete the supply of ammunition. He was then struck in the head by a pool ball. At page 79 of the transcript, Mr Drennan indicated that the male gang members instigated the brawl. It was one such person who threw the ball which struck him. He also saw the women being pushed and kicked and lying on the floor.

41 There are worrying aspects about the reliability of Mr Drennan’s evidence. He estimated that he had been in the Hotel for about two and a half to three hours prior to the brawl. He accepted that the brawl occurred about 1am and then stated that he entered the Hotel about 10pm. He said he had been to dinner with friends but had not consumed alcohol at dinner. He then called into the Hotel. However, he had told Finnane J that he “went there in the afternoon”. When that was put to him he became “confused” and then said that he did not remember and then to being vague about time. Later it was put to him that he had told Finnane J that it was “daylight” when he arrived and he agreed that that was the case and agreed that he may have been in the Hotel for about 6 hours. Even at a modest rate of drinking, he must have consumed quite an amount of alcohol and must have been moderately, at least, affected by it. Nevertheless the events surrounding the brawl, to which he deposed, are sufficiently unusual or striking to have stayed in his memory, in my view. Especially is that so considering that he needed medical treatment. A member of the Hotel’s staff took him to the Royal Prince Alfred Hospital where butterfly closures were applied to his split eyebrow.

42 Mr Drennan gave some evidence about the role of Mr Spears at the time of the assault and immediately prior to it. He recalled that Mr Spears was in charge that night. Mr Drennan was called by Mr Barry QC, who, with Mr E. Chrysostomou, appeared for Ms Nobles. Mr Drennan was then cross-examined by Mr Beale who appeared for Ms McNally, prior to being cross-examined by Mr Colefax SC who, with Mr P. Newton, appeared for the defendant. During the first cross-examination, Mr Drennan said this:

“ I remember seeing him because I thought he was going to intervene or try to do something and seemed frightened, he didn’t seem like he wanted to go over there, he didn’t like – couldn’t handle the situation.

. . .

Q:You said Mr [Spears], he appeared to be afraid of the situation?
A:Yes.

Q:Did he remain in the room?
A:Yeah, because I remember looking over and he was just talking to a couple of locals…”

43 In cross examination by Mr Colefax, Mr Drennan gave this evidence:

“Q: Yes. I want to suggest to you that you’re quite wrong in your recollection today that Mr Jason [Spears] was present in the Ground Control room whilst the ladies who are the plaintiffs in this case were discussion the claim for the watch with the Lebanese men. Do you agree or disagree? I think you said you disagreed when I was asking the question?
A: Yeah - -

Q: Do you disagree?
A: I don’t remember if at the time when they were asking for the watch that Jason was actually present at the time, but he was present at – no, he would’ve been present. He would’ve been present, yeah. At one particular time, I don’t know – but he was observing from a distance.

Q: You could see that, could you, from where you were in the poker machine room?
A: Yes, yes.

Q: Just in the course of that answer in the one sentence, one minute you had Mr Jason [Spears] present, the next second you didn’t. I want to suggest to you that that indicates to his Honour that you don’t have a clear recollection today of what took place in the Ground Control room immediately before the assault took place.

OBJECTION (BARRY). QUESTION ALLOWED.

Q: Would you answer the question, please, Mr Drennan?
A: Can you repeat it gain please?

Q: I suggest to you that the answer you last gave to his Honour in which you changed your mind in the course of the answer about whether Mr [Spears] was present or not in the Ground Control room, indicates that today, seven years later, you do not have a clear recollection of the events immediately before the assault took place in the Ground Control room?

A: I do have a recollection.

Q: I am suggesting it’s not a clear one?
A: It’s very clear. I can tell you what I saw and I remember, and that’s it.”

44 What finding can I permissibly make from this evidence? The second answer recorded to Mr Colefax’s questions certainly indicates a lack of memory and then reconstruction. I can infer that at some stage between Mr Drennan’s hearing the women asking for Ms McNally’s watch and the eruption of the brawl Mr Spears was present in Ground Control but exactly when and what he saw occurring I am unable to say. However, an inference can be drawn, and I draw it, that it was possible for Mr Spears to have been present in Ground Control during the events now being discussed i.e. he was not absent from the premises or called to other duties. That inference can be more readily drawn in the light of his failure to give evidence. The evidence does not disclose any action on Mr Spears’ part to interfere with the interaction of the women and the gang.

45 In summary, I accept the following:

(i) After the three ladies left the public bar, they turned left to head in the direction of Ms Nobles’ flat but, for a reason the evidence does not disclose, tarried for a short period outside the entrance of Ground Control, where Ms Nobles had taken a seat on a public bench.

(ii) Ms Maloney saw Ms McNally’ assailant in Ground Control, approached the entrance and the sensor-activated sliding doors opened. Ms Maloney asked if Ms McNally’s watch could be returned and was invited to “come and get it”.

(iii) Ms Maloney and Ms McNally entered Ground Control and walked towards the gang, members of which were playing pool. The two women were shortly after followed by Ms Nobles.

(iv) A verbal altercation then took place between Ms McNally (and perhaps Ms Maloney) and members about the watch. The altercation became heated.

(v) A brawl then erupted motivated perhaps by the perception that these three women were “different”: “Get the dykes”. That was Mr Barry’s submission on the motivation of the gang; it is a distinct possibility but the evidence does not allow me to conclude that it was the motivation for the assault. It my be that the gang members became tired of the ladies’ importuning or that derogatory remarks were made during the heated verbal altercation.

(vi) In the brawl the plaintiffs sustained their injuries.

46 The aftermath of the brawl can be easily determined. Someone, perhaps a staff member of the Hotel, called the police on 000. At 1:10am Constable Gooley (his then rank) and Constable Semple in a patrol car at Annandale received a radio message and responded. They arrived at the Hotel before the first ambulance, i.e. before 1:24am. Their response time would have been 10 minutes or less. Despite Ms McNally’s evidence to the contrary, I am satisfied that the gang had decamped prior to the arrival of the police. In the interim, the ambulance, had been booked at 1:17am when, probably, the significance of the injuries sustained by the plaintiffs had been perceived. The plaintiffs were not the only persons injured in this brawl. I have already described the injury sustained by Mr Drennan. Ex.A, the COPS entry, also indicates that an injury was suffered by an 18 year old man from Drummoyne, who may have been one of those who came to the plaintiffs’ assistance. The offenders in this brawl have never been identified and so have not been prosecuted.

J. THE MISSING WITNESS

47 Clearly, a potential material witness was Ms Barbara Maloney. She was not called, nor was her absence adequately explained. It is clear from the evidence of Ms McNally and Ms Nobles that each had had a falling out with Ms Maloney. Some little time was spent in evidence in discussing why she was not called and where she might be (McNally, Transcript p.8, pp.21-24, pp.30-31; Nobles, Transcript pp.64-66). However, it is clear that the defendant had a 39 page statement from her, to which each plaintiff had her attention directed (McNally, Transcript pp.24-25; Nobles, pp.66-67, p.70, p.75). That statement was MFI 4. It did not cause either plaintiff to change her evidence. Much was made of Ms Maloney’s absence by the defendant. However, there is no property in a witness. If Ms Maloney could have been called by the plaintiffs, she could have been called by the defendant. The defendant did not seek to establish that he could not (with the assistance of his lawyers) have ascertained her whereabouts. The only inference which can be drawn is that calling her would not have advanced the case of any party.

K. FORSEEABILITY

48 On this issue, Ms McNally was challenged before me. This evidence was given in cross examination:

“Colefax: Q: Ms McNally, you had no hesitation in going in with Barbara, did you, to get your watch back?
A: No.

Q: Notwithstanding that you say you were going to confront the man who viciously assaulted you half an hour beforehand. That’s right, isn’t it?
A: That’s correct.

Q: Notwithstanding that he was in there, not alone on this occasion but with a group of 14 or 15 mates?
A: And there was plenty of other people there as well, I thought it would have been safe, my friend was with me I just wanted my watch.”

49 Ms Nobles gave this evidence before Finnane J (Ex.M, pp.108-109):

“HH: Q: Did you say to Ms Maloney and her – Ms McNally, ‘It’s not worth it’ because you apprehended some danger that may occur if you re-entered the bar?
Nobles: A: No, because I knew that – I just – we didn’t have any help from the staff, you know, I just knew that, you know I just knew what boys I suppose can be like, you know I just knew it was – you know that you are pushing shit up hill to think that they’re going to give you your watch back, you know, ‘Let’s not worry about that’ and because they were so sincere and they’ve gone ‘Yes, come in and get it’ but that’s what – that wasn’t their intention at all.

HH: Q: All right, we know that.
Nobles: A: No, sorry.

Newton: Q: I do appreciate this is difficult recalling, but I must ask you this question. Did you believe that because they seem to be sincere and inviting Ms Maloney ‘the Ground Control’ bar that there was nothing to indicate that this was going to be a violent attack?
Nobles: A: No.

HH: Q: I suppose it is a matter of commonsense. You would not have gone in if you thought there was going to be a fight?
Nobles: Q: Not, being a woman, your Honour, no.

HH: Q: If you like fighting I suppose, some people like fighting.
Nobles: A: I hate fighting.”

50 This suggests that Ms Nobles believed that it was futile to seek recovery of the wristwatch but nevertheless followed Ms McNally to give her support. However, for reasons that I have already given, this is likely to be a reconstruction by Ms Nobles. The errand was in fact futile, therefore she must have held that belief. Significantly, although she had said, “It’s not worth it” she did nothing further to actively discourage Ms McNally or Ms Maloney from the errand. There is no evidence to that effect from Ms McNally.

51 I do not accept that the plaintiffs actually perceived the risk of their being assaulted if they entered Ground Control, if they entered the other part of the Hotel, in order to seek to retrieve Ms McNally’s wristwatch. That does not mean that such was not reasonably foreseeable. The judgment of the plaintiffs’ may well have been affected by their alcohol intake over a period of 7 hours at the Leichhardt Hotel. In the case of Ms McNally caution may well have been overcome by her understandable desire to recover her property: the perennial triumph of expectation over experience. In the case of Ms Nobles, caution may well have been overcome by her desire to support her friend, her beloved, another common human trait.

52 However, the primary enquiry at this stage is whether the risk of injury which befell the plaintiffs, or the like risk, was reasonably foreseeable by the defendant. I have reached the view that it was. The defendant, through his servant or agent Mr Spears, had had drawn to his attention during the period which I have described as the “interlude” a number of significant facts: Ms McNally had been assaulted and robbed immediately outside the entrance to Ground Control by a young man who was a member of the gang who were patrons in his Hotel playing pool and, presumably, taking refreshments of the type normally supplied in licensed premises. He was aware that at least one member of the gang had acted violently. The defendant could assume that the offender might do so again. The response of Mr Spears, that he could not offer to Ms McNally assistance because he had insufficient manpower, indicates that he had perceived that the gang, if one of them were approached, would act in consort: in other words, that the gang would support each other. This perception of Mr Spears must be attributed to the defendant. The defendant was aware that the gang would support the violent offender, probably in a similar manner. In my view it was reasonably foreseeable by the defendant that the gang might behave violently towards those such as the plaintiffs, a small number of vulnerable women who, to some, might appear to be “different”. The same might not be foreseeable if the plaintiffs were a pair of front row forwards of a rugby pack, supported by the rest of their team mates.

53 However, the relevant assault did not occur in the public bar of the Hotel, the women and the gang both being present there, after the report had been made to Mr Spears. The ladies left the Hotel and could be seen to do so by him. Particularly in these circumstances, the defendant says that the plaintiffs’ injuries were not reasonably foreseeable. There are two countermanding considerations:

(i) the first assault occurred immediately outside an entrance to the Hotel; it was foreseeable that the ladies might need to pass by it on their way home, (as in fact, they needed to do); the gang member or a gang member or gang members might wait there for them to do so and commit similar offences or, seeing them walk by, come out and commit similar offences;

(ii) the ladies had asked for assistance, for help, in regaining the stolen wristwatch but that help was declined; it was foreseeable that they might use the alternative of self-help which could lead to a confrontation which might become violent: this, in fact, is that which occurred.

54 The first consideration to which I have referred raises the issue as to the defendant’s liability for injuries which might be described as being suffered “not on his premises”. There is some authority on this point. Oxlade v Gosbridge Pty Ltd (unreported, Court of Appeal, 18 December 1998, 40006/97; BC 9807725) was a decision of Mason P with whom Shepherd AJA concurred, Fitzgerald AJA dissenting. The facts are succinctly set out by Mason P at the commencement of his reasons:

“The appellant left the respondents' hotel at closing time. She had not consumed any alcohol and she was unaccompanied. Her car was parked close to the entrance to the hotel in its carpark. There were up to 40 other patrons in the area, several of them intoxicated and aggressive. The appellant was harassed after she entered her car. Some men banged on the windows calling out names and vulgarities. Others climbed onto the bonnet. The appellant was scared, and she reversed out of the immediate area as quickly as she could. In doing so she collided with Mr Parrish and injured him. She has been held liable to him in negligence, under a consent judgment, in the sum of $80,000 inclusive of costs.

By this appeal the appellant seeks contribution from the respondents. The first respondent owned the hotel, the second and third respondents were its lessees, and the third respondent was its licensee. For the purposes of the appeal, no attempt was made to differentiate between them.”

55 His Honour pointed out that a “duty to exercise reasonable care to protect patrons has been imposed upon the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such a duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises.” His Honour went on to say this:

“The exceptional nature of the relevant duty of care means that a hotel manager is not liable in respect of the acts of patrons unless the manager knew or ought to have known of facts requiring intervention in order to protect other patrons (Chordas at 98-99. See also Allen v Babrab , Inc 43 ALR 4th 278 and following annotations for the American case law).

The case based upon absence of security personnel in the carpark was rejected in the following terms:

There was nothing that occurred inside the hotel ... which would have alerted any reasonable person in the position of the [respondents] that there was likely to be anything adverse occur to Miss Oxlade when she reached the carpark.

This suggests that a hotelier will only be liable to a patron when (in the light of events occurring within the hotel premises) he or she ought reasonably to have suspected that the particular patron was at risk. However, the relevant duty of care is not so circumscribed. In Chapman v Hearse (1961) 106 CLR 122, the High Court emphasised (at 120-121) that:

...one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.

See also Assaf v Kostrevski , Court of Appeal, unreported, 30 September 1998.

Earlier in his judgment, the learned judge had found that the lighting in the carpark was not bright. And he had held that "it is a common experience that things like this occur to both males and females on licensed premises" (referring to the harassment of the appellant). The pub was crowded on the night in question.

The possibility that unaccompanied female patrons might be harassed as they left the hotel was not just a matter of judicial notice ("common experience" in the trial judge's words). This was an inference properly to be drawn from the events that occurred on the evening in question, which do not appear to have been atypical. It was natural that intoxicated patrons would arrive in numbers at the carpark at or about closing time. After all, this was a hotel with a public bar and a fairly large carpark.”

56 After discussing some of the evidence in the case, his Honour concluded on this issue:

“In my view it should have been held that the respondents ought to have known that the harassment of a single female patron leaving at closing time was a sufficiently likely event as to have been reasonably foreseeable.”

57 Bragg v RSL Henley and Grange Sub-Branch Inc [2003] SASC 226 was a decision of Gray J. The plaintiff was assaulted and injured not in the clubhouse of the defendant but on the land outside of it, which was part of the defendant’s land. The defendant was aware of the offender’s mental condition, of his agitation, and had refused to serve him alcohol because of his annoying and disruptive behaviour. The president of the defendant, who was working behind the bar, asked the offender to leave and the offender did so. There was no incident in the clubhouse as the offender left. Outside the clubhouse, the offender assaulted the plaintiff, without any provocation by the plaintiff. A magistrate had dismissed the plaintiff’s claim but he was successful on appeal. Commencing at [29] Gray J said:

“These circumstances gave rise to a foreseeable risk that Mr Ravesi may continue to behave in a disorderly and offensive manner. There was a risk that was not far fetched and fanciful that Mr Ravesi’s conduct may expose patrons to a risk of injury. In these circumstances the club failed in its duty of care to Mr Bragg by not having Mr Ravesi escorted from the club premises. It would have been simple and straightforward to have one or more appropriate club personnel escort Mr Ravesi from the premises and make arrangements for his safe journey home or as otherwise directed. This was not done. The duty to remove Mr Ravesi included the need to escort him from all areas frequented by patrons. This included the outdoor area where Mr Bragg was with friends. Further steps could have been taken to protect patrons. All patrons could have been warned so that they might be on notice that Mr Ravesi was leaving and may behave in a disorderly or offensive manner. This did not happen.

[30] These steps represent the minimum action necessary to maintain control of the premises. It was not enough to simply request that Mr Ravesi leave. Patrons remained exposed to a risk of offensive and disorderly behaviour. The request to leave was inadequate and did not discharge of the club’s duty of care towards its patrons including Mr Bragg.”

58 These authorities establish that the hotelier has a duty that includes a duty to those in the car park of the hotel and to those in “areas frequented by patrons”. Nevertheless the defendant has submitted that the first assault occurred outside his premises (even though I have held it to occur on his land) and, theoretically, the major assault might have occurred off the defendant’s premises. With great respect, this cannot be right. I am here dealing with the common law, not some statutory distinction: see Williams v Ducon Condenser Ltd [1949] WCR 122, where a girl riding a bicycle home from work, lost control of it when it passed over an uneven surface outside a gate of her home and she was thrown from the bicycle, receiving injuries by falling on the driveway inside the gates of her own home’s land but failed to receive compensation because she had “arrived home”. If a brawl erupted in the Hotel, for which the defendant were liable, and a person was thrown through an entrance, landing on his head on the footpath which caused, say, a closed head injury, the defendant could hardly deny liability. Equally, if the brawl spilled out into the public street, that patron would in my view, be able to recover damages. I am here dealing with an inner city hotel whose entrances lead directly onto the footpath, a public place, not with a suburban hotel or club, set back from the street, surrounded by garden or lawn, with large car parks or the like. All I need to say is that I accept that the defendant’s duty to control patrons upon is premises includes a duty to other patrons in the immediate vicinity, of his premises. I do not suggest, for example, that the duty extends to protect patrons who leave the premises and are set upon by other former patrons laying in wait in some laneway close by unless, of course, this be well known to the hotelier. It appears to me to be a question of degree. Here the defendant had had drawn to his attention what one of the patrons did immediately outside of Ground Control. It was reasonably foreseeable that it could happen again.

115 Particular (c) is not a particular at all – merely a further averment of negligence.

116 As to (d), it is true that each plaintiff re-entered the Hotel, but not after being asked to leave.

117 As to (e), how is it alleged that the plaintiffs provoked the assault? It might be thought that Ms Nobles’ comment about “the yuppie on the phone” provoked the first assault on Ms McNally, but that cannot be negligence on the part of Ms McNally. Is it alleged that in re-entering the Hotel and asking for the return of her wristwatch Ms McNally provoked the assault? That was certainly not intended by her, nor would one objectively think that likely unless one had reason to believe that the gang member who had stolen the wristwatch or the gang members generally was or were prone to violence.

118 The problem about contributory negligence is that the defendant made no submission about it. Mr Barry, who addressed last, made the submission that the defendant had not submitted that either plaintiff was guilty of contributory negligence and there was no demur to that by Mr Colefax. Essentially, the defendant approached the matter on an all or nothing basis.

119 My disquiet on this issue is that my findings on forseeability indicate that a finding of contributory negligence ought be made in that the plaintiffs failed to perceive that if they re-entered the Hotel to seek to recover the wristwatch that they might again be the victims of violence. If such a finding were made, I would have to consider the relative responsibility of the defendant and each plaintiff in each case for the injuries suffered by that plaintiff.

120 I acknowledge that it is my duty to decide any question of law that arises, even if Counsel have not addressed it and I am aware of decisions such as Coulton v Holcombe (1986) 162 CLR 1 and Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631. However contributory negligence is a question of fact, not of law. Furthermore, were I to find contributory negligence and make an apportionment, the plaintiffs would be entitled to state that they had been denied natural justice: the grounds of contributory negligence were not argued, the evidence to support them not canvassed, the relative responsibility of each party not debated and no submission was put on their behalf because the defendant made no submission on any of these matters. In these circumstances the defendant must be held bound by the manner in which he has presented and argued his case.

121 P. DAMAGES

(a) 10455/2001 McNally:

$64,340 plus interest at 9% per annum from 13 September 2003 to 19 July 2006 (2 years and 310 days, or 2.85 years). If my mathematics be correct, the amount of interest is $16,503. The total sum is $80,843.

(b) 10456/2001 Nobles:

$430,362 plus interest at 9% per annum from 13 September 2003 to 19 July 2006 (2.85 years). If my mathematics be correct, the amount of interest is $110,388. The total sum is $540,750.

122 Q. ORDERS

(a) 10455/2001 McNally v Spedding

(i) Verdict and Judgment for the plaintiff against the defendant for $80,843.

(ii) Order the defendant to pay the plaintiff’s costs.

(iii) Liberty to apply for any additional or ancillary orders.

(b) 10456/2001 Nobles v Spedding

(i) Verdict and Judgment for the plaintiff against the defendant for $540,750.

(ii) Order the defendant to pay the plaintiff’s costs.

(iii) Liberty to apply for additional or ancillary orders.

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