Bondi Beach Foods Pty Ltd v Chadwick

[2023] NSWCA 265

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265

Hearing dates:

20, 21 September 2023

Decision date:

09 November 2023

Before:

Gleeson JA at [1];
Leeming JA at [2];
Payne JA at [288]

Decision:

1. Bucket List’s appeal allowed in part.

2. Crossguard’s cross-appeal allowed in part.

3. Mr Chadwick’s cross-appeal dismissed.

4. Set aside order 1 made on 9 March 2023, namely, “Verdict for the plaintiff against the first and second defendants for $200,706.40” and in lieu thereof enter judgment in favour of the plaintiff against the first and second defendants in the amount of $112,941.50, such judgment to be taken to have been entered on 9 March 2023.

5. Set aside order 2 made on 20 March 2023.

6. The parties to have leave to file and serve agreed orders within 14 days of today, or in the absence of agreement, short submissions not exceeding 3 pages as to the orders for costs of the proceedings in this Court, with each party having leave to file and serve short submissions not exceeding 2 pages in reply within 7 days thereafter.

Catchwords:

NEGLIGENCE – duty of care – duties owed by occupier of licensed premises and security contractor to patrons – breach – whether defendants had knowledge of aggressive character of particular patrons – whether defendants should have turned out particular patrons before plaintiff arrived –distinction between RSA marshals and licensed security guards – whether defendants breached duty by having no licensed security guards on premises – whether defendants should have separated plaintiff from particular patrons after altercation commenced – causation – whether plaintiff established that had defendants not breached their duties of care, particular patrons would have been excluded before his arrival – whether sufficient time between commencement of altercation and plaintiff being struck for licensed security guards to intervene – contributory negligence – extent of plaintiff's contribution to harm suffered when another patron struck him – statutory contribution – nature and extent of breaches of duty by occupier and security contractor – damages – economic loss – challenge to assessment – non-compliance with Civil Liability Act 2002 (NSW) s 13

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5E, 13

Evidence Act 1995 (NSW), s 78

Interpretation Act 1987 (NSW), s 68(3)

Liquor Act 2007 (NSW), ss 7, 9, 22-24, 28, 77

Liquor Amendment (Miscellaneous) Regulation 2017 (NSW), Sch 1, item 15

Security Industry Act 1997 (NSW), ss 4, 6AA(6), 7

Security Industry Regulation 2016 (NSW), Sch 1, cll 8, 30, 53G(5), 53H(5)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61

Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191; [1996] UKHL 10

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Brighten v Traino [2019] NSWCA 168

Chandler v Transport for New South Wales [2023] NSWCA 6; 103 MVR 265

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Commissioner of Police, NSW Police Force v TM [2023] NSWCA 75

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Cowell v The Rosehill Racecourse Co Ltd (1937) 56 CLR 605; [1937] HCA 17

Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151

Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; 301 ALR 420

Fink v Fink (1946) 74 CLR 127; [1946] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61

Oxlade v Gosbridge Pty Ltd [1998] NSWCA 167

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

Penrith City Council v Parks [2004] NSWCA 201

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Quintano v BW Rose Pty Ltd [2009] NSWSC 446

Radin v The Law Society of New South Wales [1997] NSWCA 257

Sam v Atkins [2005] EWCA Civ 1452

Sergeant John Lawrie v Tameeka Pty Ltd [2015] NSWSC 1513

Southern v Adventure Forest Ltd [2016] EWCA Civ 1178

State of New South Wales v Thomlinson (2018) 98 NSWLR 315; [2018] NSWCA 151

Taitoko v R [2020] NSWCCA 43

Venues NSW v Kane [2023] NSWCA 192

Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Woolworths Ltd v Lister [2004] NSWCA 292

Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106

Texts Cited:

J Goudkamp, “Breach of Duty: A Disappearing Element of the Action in Negligence?” (2017) 75 Cambridge Law Journal 480

T Weir, Introduction to Tort Law (2nd ed Oxford University Press 2006)

Category:

Principal judgment

Parties:

Bondi Beach Foods Pty Ltd (Appellant; First Respondent to First Cross-Appeal; Second Respondent to Second Cross-Appeal)
Clinton Chadwick (First Respondent to Appeal and Second Cross-Appeal; Cross-Appellant in First Cross-Appeal)
Crossguard Group Pty Ltd (Second Respondent to Appeal and First Cross-Appeal; Cross-Appellant in Second Cross-Appeal)

Representation:

Counsel:
P Morris SC (Bondi Beach Foods Pty Ltd)
D Lloyd SC and M Kalyk (Clinton Chadwick)
N Polin SC (Crossguard Group Pty Ltd)

Solicitors:
Meridian Lawyers (Bondi Beach Foods Pty Ltd)
Salerno Law (Clinton Chadwick)
Hall & Wilcox (Crossguard Group Pty Ltd)

File Number(s):

2023/115883

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 197

Date of Decision:

9 March 2023

Before:

Elkaim AJ

File Number(s):

2019/00307732

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Clinton Chadwick was seriously injured when he was struck repeatedly with a stool by another patron at premises operated by Bondi Beach Foods Pty Ltd (Bucket List). Crossguard Group Pty Ltd was engaged by Bucket List to provide security. The entirety of the assault and a great deal of the interaction between Mr Chadwick and his assailant, and the friends of each, was captured on CCTV.

Mr Chadwick sued Bucket List and Crossguard in negligence. He advanced his claim in two separate ways. The first was that the assailant and his group were exhibiting signs of intoxication in the hour prior to Mr Chadwick’s arrival, such that the defendants were in breach of duty in not turning them out. The second was that if there had been sufficient licensed security guards present in the seconds preceding the altercation, then they would, more likely than not, have intervened to de-escalate the situation, and thus Mr Chadwick would not have been injured. Both routes to liability were upheld at trial, with the primary judge entering judgment for Mr Chadwick against the first and second defendants in the amount of $200,706.40 ($250,883 less 20% for contributory negligence). As between themselves, each defendant was held equally liable.

Bucket List appealed against the findings of duty, breach, causation, damages and contributory negligence. Crossguard cross-appealed on the same grounds and sought a lower assessment of statutory contribution. Mr Chadwick cross-appealed on damages.

The principal issues on appeal were the findings of fact concerning the conduct of the assailant and his group and the way in which the premises were monitored for signs of intoxication, the nature and content of the duties of care owed by each defendant, whether each duty was breached, whether the plaintiff had established causation, damages, and whether the assessments of contributory negligence at 20% and statutory contribution disclosed appellable error.

The Court (per Leeming JA, Gleeson and Payne JJA agreeing) allowed the appeal in part, holding that:

1. As regards the first route to liability, the appeal was allowed. Although the challenge to the reasoning concerning duty was not made out (at [63]-[76]), parts of the challenge to factual findings were upheld. It was not established that the assailant manifested signs of intoxication or violence prior to Mr Chadwick’s arrival: at [98]-[124], [130]-[138]. Even if some members of the assailant’s group manifested signs which warranted further investigation, it would have been reasonable for security to take steps short of asking that member to leave: at [182]. Even if a member was asked to leave, it did not follow that the assailant would have followed: at [179].

Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28; Oxlade v Gosbridge Pty Ltd [1998] NSWCA 167; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61; Brighten v Traino [2019] NSWCA 168, considered and applied.

Consideration of statutory obligations of the licensee of licensed premises and powers to exclude patrons, and their relevance to the common law claim: at [32]-[43].

2. As regards the second route to liability, it was a breach of duty by both Bucket List and Crossguard to not have at least two licensed security guards on duty at the relevant time: at [218]. This was in light of the venue’s history of violence and intoxication, and the fact that none of Crossguard security personnel at the premises were entitled under the Liquor Act 2007 (NSW) to use physical force to evict the assailant: at [218]. The challenge to causation was not made out: at [284(3)].

State of New South Wales v Thomlinson (2018) 98 NSWLR 315; [2018] NSWCA 151 considered and applied.

Consideration of the distinction between RSA marshals and licensed security guards, and the fact that only the former were empowered to lay hands on a patron.

3. The assessment of contributory negligence of 20% by the primary judge was set aside, and replaced by a determination that Mr Chadwick’s damages be reduced by 50%, owing to Mr Chadwick’s repeated escalation of the situation: at [250]-[259].

4. No basis had been established to interfere with the assessment of damages, save in relation to a component for future economic loss, which did not comply with s 13 of the Civil Liability Act: at [260]-[270].

5. The challenge to statutory contribution as between Bucket List and Crossguard failed. Both were responsible for the absence of any licensed security guard. Both were equally liable to Mr Chadwick: at [271]-[278].

JUDGMENT

GLEESON JA	[1]
LEEMING JA	[2]
Uncontroversial matters	[13]
People and basic chronology	[13]
The intoxication of Mr Martin	[20]
The layout of the licensed premises	[24]
The events between 18:00:40 and 18:08:16 in more detail	[28]
Bucket List’s licence	[32]
Contemporaneous testimonial evidence	[44]
The reasoning of the primary judge on liability	[51]
Duty of care and risk of harm (Grounds 1 and 2)	[63]
Review of findings of fact generally	[77]
The risk profile of Bucket List (Grounds 6(f) and (g))	[82]
Did the evidence of Messrs Garrow and Kovacevic warrant the finding that the conduct of the Martin group was disruptive or aggressive conduct that required intervention (Ground 6(j))	[98]
Mr Kovacevic	[99]
Mr Garrow	[106]
Conclusions on the evidence of Messrs Kovacevic and Garrow	[116]
Mr Garrow’s evidence concerning Mr Ruwald, the owner (Ground 6(k))	[125]
The CCTV footage before Mr Chadwick’s arrival, and the evidence of Ms Axelsson and Mr Izmiritlian	[129]
Chronology of CCTV Footage	[130]
Ms Axelsson’s evidence	[142]
The Crossguard witnesses	[154]
Ground 6(a)	[164]
Monitoring (Grounds 6(e) and (m))	[167]
Objective manifestations of intoxication or anti-social behaviour (Grounds 6(h), (i) and (l))	[171]
Causation (Ground 7)	[184]
The second way in which Mr Chadwick’s case was advanced (Grounds 6(b), (c) and (d))	[187]
The arrival of Mr Chadwick and the events which followed	[189]
The difference between RSA marshals and licensed security guards	[193]
Ground 6(b)	[206]
Ground 6(c)	[208]
Ground 6(d)	[214]
Further issues arising on Crossguard’s cross-appeal	[219]
Separate duty of care owed by Crossguard (Grounds 1 and 2)	[233]
Risk of harm (Ground 3)	[240]
Objections to evidence of Mr Kovacevic (Ground 5)	[241]
Causation (Ground 6)	[248]
Contributory negligence (Ground 8)	[250]
Quantum (Appeal ground 9, Mr Chadwick’s cross-appeal)	[260]
Statutory contribution (Ground 8 of Crossguard’s cross-appeal)	[271]
Costs (Ground 9 of Crossguard’s cross-appeal)	[279]
Conclusion and orders	[284]
PAYNE JA	[288]

1. GLEESON JA: I agree with Leeming JA.

2. LEEMING JA: All three parties to proceedings heard over 13 days in the Common Law Division of this Court have appealed or cross-appealed against aspects of a judgment in favour of the plaintiff, Mr Clinton Chadwick, who was seriously injured when he was struck repeatedly with a stool by another patron at premises operated by the first defendant, Bondi Beach Foods Pty Ltd, which traded as “The Bucket List Bondi” near Bondi Beach. The second defendant, Crossguard Group Pty Ltd, provided security. The entirety of the assault, and a great deal but not all of the interaction between Mr Chadwick and his assailant Mr Stephen Martin, and the friends of each, was captured on CCTV. Some was also captured on video recordings made by other patrons after the altercation commenced.

3. Mr Chadwick sued Bucket List and Crossguard in negligence. Mr Martin pleaded guilty to assault but was not a party to the proceedings. Instead, he was called as a witness in the plaintiff’s case. The hearing took place between 13 February and 1 March 2023, with his Honour delivering reasons for judgment of 209 paragraphs promptly thereafter on 9 March 2023: Chadwick v Bondi Beach Food [sic] Pty Ltd [2023] NSWSC 197. The Court found each defendant liable, apportioning the cross-claims against one another for statutory contribution equally, and making a reduction for contributory negligence of 20%. His Honour assessed non-economic loss at $46,000, past and future out-of-pocket expenses at $7,000, past economic loss at $154,360, past lost superannuation benefits at $18,523 and future economic loss at $25,000. Those amounts total $250,883, resulting in a judgment in Mr Chadwick’s favour against each defendant in the amount of $200,706.40, with each defendant equally liable to one another. By a separate judgment delivered on 20 March 2023, his Honour confirmed the costs orders in favour of the plaintiff, notwithstanding the default position where a plaintiff recovers less than $500,000 provided by r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW). His Honour also stayed the execution of that judgment pending appeal: [2023] NSWSC 246.

4. The plaintiff was held to be entitled to succeed in two separate ways, both of which were challenged by Bucket List and Crossguard and defended by Mr Chadwick. The first was that Mr Martin and his group would, but for the breaches of duty by both Bucket List and Crossguard, have been removed from the premises well in advance of Mr Chadwick’s arrival. Speaking generally, that entailed a finding that Mr Martin and his group were exhibiting such signs of intoxication coupled with anti-social behaviour in the hour prior to Mr Chadwick’s arrival that the defendants were in breach of duty in not turning them out. Secondly and alternatively, if there had been sufficient licensed security guards present in the seconds preceding the altercation, then they should have intervened to de-escalate the situation, and more likely than not they would have done so, with the result that Mr Chadwick would not have been injured.

5. Both ways in which Bucket List and Crossguard were held to be liable were encapsulated in his Honour’s conclusion on liability at [122]:

… had appropriate action been taken, for instance eviction, the fight and subsequent injury to the plaintiff would not have occurred. I make the same finding in respect of intervention once the argument had started. In other words, I am satisfied that the plaintiff’s injuries were caused by the breach of duty of the defendants. Put yet another way, but for the failure to control or evict Mr Martin and his friends, or to have intervened in the altercation, the plaintiff would not have been injured.

6. The two ways in which Mr Chadwick’s case is advanced have a number of consequences. First, although the conclusions reproduced above were framed generally, it was and is necessary to address the separate issues of breach and causation in respect of Mr Chadwick’s claim against each of Bucket List and Crossguard. Secondly, at the factual level, the objectively manifested signs of intoxication and anti-social behaviour exhibited by Mr Martin and his group and, especially, the timing of those manifestations, are critical. The CCTV footage has a number of limitations, but it does enable precision to be given to the timing of the most important events, which is vital to both ways in which Mr Chadwick’s case was advanced.

7. To reiterate, on the first route to liability, what matters is the objectively manifested signs of intoxication and anti-social behaviour by Mr Martin and his group in the hour between their arrival and the arrival of Mr Chadwick. On the second route to liability, what matters is whether from the time at which security was, or ought to have been, alerted to a developing situation, which is around 18:07:00, sufficient security would have prevented Mr Martin from attacking Mr Chadwick at 18:08:15.

8. Another complicating factor should be mentioned. Although I have referred to “Mr Martin and his group”, what matters is the presence or absence of Mr Martin personally. No other member of his group played any part in the violence which led to Mr Chadwick’s injury. As will be seen, the men in Mr Martin’s group did not arrive together, and it is far from clear that if one had been asked to leave, the others would have followed. Further, the men exhibited different behaviour. The behaviour of two of them, who were described at trial and in this Court, aptly, as “dancing man” and “stumbling man”, exhibited greater indications of intoxication than Mr Martin. Bucket List was critical of the reasoning of the primary judge to the extent that it conflated Mr Martin with the men with whom he was drinking.

9. Almost every aspect of the primary judge’s findings on each of the elements of negligence, the findings of contributory negligence, apportionment between the defendants and costs are challenged by at least one party. Bucket List and Crossguard challenge the entirety of the findings of economic loss, while Mr Chadwick, by his cross-appeal, seeks a larger amount, albeit much less than the amount (in excess of $2,000,000) sought at trial. There is also an extensive challenge by Bucket List, supported by Crossguard, to the factual findings made by his Honour. These are best elaborated immediately, because they are the main reason for the length of this judgment, and explain its structure.

10. After clarification early on the first day of the hearing in this Court, it was confirmed that Bucket List challenged each of the following facts contained in ground 6 of its amended notice of appeal, and to the extent necessary, invited this Court to make contrary findings:

(a) if it be a finding, that the restaurant premises were operated by the appellant to maximise the sale of alcohol regardless of the impact on security;

(b) the appellant was content to allow the venue to operate without licensed security guards on duty;

(c) licensed security guards, even one of them, could have physically intervened to separate the combatants and lead, at least one of them, from the scene;

(d) an inadequate contingent of security personnel, both as to numbers and as to their capacity, was present at relevant times;

(e) there was a distinct inadequacy in the monitoring of persons entering the premises;

(f) unruly conduct, often violence, were common occurrences at the appellant’s venue;

(g) 6:00pm on the final Friday before Christmas was a high-risk period; the mere engagement by the appellant of the second respondent was an acknowledgement of the risk and the need to take precautions; in each case because such finding was against the evidence and the weight of the evidence;

(h) there was ample warning based on conduct on the occasion in question to raise actual or constructive knowledge of the aggressive character of the person while intoxicated;

(i) there was evidence of disruptive or aggressive conduct and known facts requiring intervention to protect patrons;

(j) the evidence of Mr Garrow and Mr Kovacevic about the conduct of the Martin Group was evidence that amounted to disruptive or aggressive conduct requiring intervention to protect patrons;

(k) that Mr Garrow’s evidence, that Mr Ruwald expressed concerns about a failure to deal with Mr Martin before the fight, intimated acknowledgment of aggressive behaviour sufficient to justify immediate removal from the premises;

(l) members of the Martin group behaved in a manner which ought to have generated an assessment of their intoxication level, including Mr Martin;

(m) no staff at the premises were actively monitoring intoxication.

11. It will be necessary, in order to determine this appeal, to address a large body of conflicting evidence, testimonial and documentary, concerning the areas arising on Bucket List’s challenges to those 13 findings. The best way of doing so is to start with the risk profile of the venue (grounds 6(f) and (g)), then deal with the challenges which are confined to the evidence of Messrs Garrow and Kovacevic (grounds 6(j) and (k)), then the other grounds dealing with the first way in which Mr Chadwick’s case was advanced, involving inadequate monitoring and the objectively manifested signs of anti-social behaviour (grounds 6(a), (e), (h), (i), (l), (m)), and then to turn to the challenges relevant to the second way in which Mr Chadwick’s case was advanced (grounds 6(b), (c) and (d)). The factual challenges in ground 6 are central to grounds 3, 4 and 5 of Bucket List’s appeal, which challenge the findings of breach, but are largely independent of appeal grounds 1 and 2, which address duty and risk of harm, and are logically anterior to the grounds challenging damages and contributory negligence and apportionment.

12. The most efficient way to address this large volume of material and competing submissions is to commence with what is uncontroversial or established by contemporaneous documents. I shall then summarise the reasons of the primary judge, with a view to indicating how the various issues arise. I shall then address grounds 1 and 2, which are largely independent of the facts. I shall then turn to the factual challenges in ground 6, as a result of which the challenges in grounds 3, 4 and 5 to breach of duty are relatively straightforward. I shall then deal with the remaining grounds of appeal and the cross-appeals.

Uncontroversial matters

People and basic chronology

13. Mr Martin and around five friends were drinking at a “VIP” table in the outdoor area of the licensed premises. They arrived at 17:03 on the afternoon of Friday 22 December 2017. They moved tables at 17:47 and, for the first time, the CCTV footage thereafter shows their table.

14. Mr Chadwick and his two friends Messrs Michael Garrow and Eugene Bradshaw arrived at 18:00:40. They walked past Mr Martin’s table at 18:01:30, and there was an interaction between the two groups.

15. After buying three beers at the bar, Messrs Chadwick, Garrow and Bradshaw walked around the premises, apparently looking for a seat. They returned to the proximity of Mr Martin’s table at around 18:06:34.

16. Mr Chadwick was struck at 18:08:16. What occurred in the previous 90 seconds is important both as to breach and causation on the second way in which Mr Chadwick’s case was advanced, and will be addressed in detail below.

17. At all material times, there were four RSA marshals from Crossguard on duty: Mr Gary Izmiritlian, Ms McKenzie Lewino, Mr Sean Bruggermann and Mr Ben Nichols. The primary judge found that none was a licensed security guard. In proceedings in which a multitude of factual findings were challenged, no challenge was made to that finding.

18. Evidence was given in Mr Chadwick’s case by Mr Chadwick, Mr Martin, Mr Garrow, but not Mr Bradshaw. Nor was evidence given by another man, Mr Tom Kerr, a friend of Mr Chadwick who happened to be present at the venue and who involved himself in the altercation. Mr Chadwick did call another witness, Mr Elvis Kovacevic, who had been attempting to celebrate his 45^th birthday at a nearby table, and who saw Mr Martin’s group arrive, was well placed to observe their behaviour over the following hour, and saw the altercation.

19. For Bucket List, evidence was given by the licensee Mr David Champ (who was not present when the incident occurred) and Ms Ida Axelsson, who was duty manager at the time, and the owner Mr Andrew Ruwald, who was also present. Bucket List also called Ms Lewino, one of the Crossguard employees on duty. For Crossguard, evidence was given by Mr Izmiritlian, who was the senior employee on the site, and part of a statement by its owner Mr Tux Akindoyeni was tendered.

The intoxication of Mr Martin

20. Mr Martin gave evidence that he had been drinking since 1.30pm that afternoon, starting with beers at a friend’s house, then at a German pub near Bondi Beach, and then moving to the Bucket List. There was no challenge to the primary judge’s finding that Mr Martin and his group were turned out of the German pub. Despite there being a dispute at trial as to the amount of alcohol Mr Martin had consumed and the rate at which his metabolism processed it, there was no dispute in this Court that he had drunk substantial amounts of liquor.

21. On Mr Martin’s own account, he had had two or three beers at a friend’s house, five or six steins of beer at the German pub together with three or four shots of Jägermeister, and two to four further beers at Bucket List. The bar CCTV shows him purchasing a bucket of four bottles of beer at 17:06. The man who entered the premises with him also bought his own bucket of four beers (shown at 17:07), and two other men who entered the premises at around the same time and joined Mr Martin and his friend purchased their own pints. Mr Martin said:

On a scale of one to ten with one being sober and ten being as drunk as I have ever been in my life, at the time of the incident I was very drunk, maybe an eight or nine, too drunk to be there really.

22. He said he weighed about 100kg at the time. He was also tall. The CCTV footage shows the top of Mr Chadwick’s head coming to around the bottom of Mr Martin’s chin when the two faced each other off. Even allowing for the distortion from the elevated camera angle, it is clear that Mr Martin was much taller than Mr Chadwick.

23. It was common ground between the experts that an aspect of behaviour that is commonly affected by excess alcohol is gait. Although Mr Martin’s gait is captured on the CCTV as he entered, and as he walked to the bar, and to and from the toilets, and then half an hour later as he left the premises and returned, neither expert detected that his gait indicated intoxication. Dr Dauncey referred to a “lack of obvious impairment” in Mr Martin’s gait (and questioned the reliability of his account of how much alcohol he had consumed) while Mr Chadwick’s expert Dr Robertson agreed that at least where the CCTV footage was of reasonable quality, Mr Martin’s “gait was unremarkable”.

The layout of the licensed premises

24. The premises occupied by Bucket List included outdoor seating area near Bondi Beach. No floorplan seems to have been in evidence. However, the outdoor area adjoins the street entrance, separated by a fence with staff at the entrance, and it is clear enough that a security guard at the entrance could walk to the so-called “VIP” table where the altercation itself took place in a matter of seconds. Although an umbrella partially obscures the CCTV footage of the entrance, the footage from camera 7 permits one to see the entirety of a person’s movement from the entry to Mr Martin’s table.

25. The bar area is inside, and activity there was recorded by at least two other cameras. Patrons and staff in the outside area could go to the bar area and exit into a different part of the outdoor area, and complete a circular route returning to their starting point. That is what Messrs Chadwick, Garrow and Bradshaw did on the afternoon of Friday 22 December 2017, apparently in search of a table.

26. The table at which Mr Martin and his group were seated was small. There was a row of seats with cushions on them along the boundary. For other patrons, there were small, metal stools, one of which was used by Mr Martin to strike Mr Chadwick. The furniture and the configuration are best seen in the CCTV footage after the incident, when the police had arrived and many of the patrons had left.

27. The camera showing the outdoor area has Mr Martin’s table in the far right of screen. It is difficult to see them clearly, partly because of the camera angle (save for when someone stands), and partly because the group is in the shade and much of the rest of the area is in bright sunlight. For the most part, it was not possible to see them before they moved tables closer to the entrance at 17:47. The camera did not capture Mr Kovacevic’s tables, which were further away from the entrance, although Mr Kovacevic is seen from time to time interacting with Mr Martin’s group.

The events between 18:00:40 and 18:08:16 in more detail

28. Messrs Chadwick, Garrow and Bradshaw arrived at 18:00:40. Mr Chadwick was carrying a puppy named “Donut”, and Mr Garrow was carrying another puppy named “Pebbles”. Between 18:00:52 and 18:01:27 the three men interacted with patrons sitting at a table closer to the entrance than Mr Martin’s table, with one female patron standing up to pat Donut. This would have been visible to Mr Martin, and there was evidence that he shouted to them. Messrs Chadwick, Garrow and Bradshaw then moved further into the venue, towards the bar, necessarily passing Mr Martin’s table. At 18:01:30 Mr Martin stood up, followed by an interaction of around 20 seconds, until 18:01:49, when the men proceed out of camera towards the bar. I shall return below to the evidence as to what was said.

29. Mr Garrow then bought a beer for himself and each of Mr Chadwick and Mr Bradshaw. The three then walked around the venue looking for seating. Other patrons continued to pat Donut and Pebbles. They walked once again past Mr Martin’s table at around 18:06:50, and began to interact with him from around that time. The sequence of events will be described in greater detail below, but involved a verbal exchange between Messrs Martin and Chadwick, with the former repeatedly pointing outside and conveying that they should engage in physical blows outside, and the arrival from another table of Mr Chadwick’s friend Mr Kerr, as well as two Crossguard marshals.

30. By 18:07:54 two Crossguard marshals were standing next to Messrs Martin, Chadwick and Kerr, watching the altercation. At 18:08:00 Mr Chadwick pushed Mr Martin. At 18:08:07 Mr Martin hurled a jug towards Mr Chadwick, which smashed on the ground. At 18:08:10 Mr Kerr pushed Mr Martin, with greater apparent force than Mr Chadwick’s push, judging by its effect upon Mr Martin. Mr Izmiritlian moved towards Mr Kerr. Then at 18:08:15 Mr Chadwick, who had circled behind the Crossguard employee, moved rapidly towards Mr Martin, apparently attempting to punch his face. His fist did not connect. At 18:08:16, Mr Martin struck Mr Chadwick with the stool, three or perhaps four times, rapidly. Mr Chadwick, already off-balance because of his attempted blow, fell to the ground. Mr Martin ran from the premises.

31. Mr Chadwick was taken to St Vincent’s Emergency Department. There was no challenge on appeal to the findings by the primary judge that he had sustained a mild traumatic brain injury, and suffered from a resolving post traumatic stress disorder. However, there is a very large challenge directed to whether those injuries resulted in economic loss.

Bucket List’s licence

32. Bucket List was licensed to serve alcohol. It is an offence to do so without a licence, and it is an offence to do so contrary to the conditions of a licence: Liquor Act 2007 (NSW), ss 7 and 9. The licence was not in evidence. Even so, the inescapable inference is that it was an “On-premises licence” granted pursuant to Division 4 of Part 3 of the Liquor Act 2007 (NSW). In part, that follows from the evidence of Mr Champ, the licensee, as follows:

Q. When you say it’s pretty casual, the big area outside, there were people at the tables. Was that where meals were served, or was there a separate section that was a restaurant?

A. No, the whole venue was a restaurant. The inside and outside was – meals were served throughout.

Q. Was it for that reason that there was a requirement that people be seated?

A. That was - yeah, the - it was part of the restaurant’s licence, and the police were pretty clear. And it was something that was well-versed with all of us, that most people - sorry. The majority of people outside all had to be seated outside. There was no standing and drinking.

…

Q. Was it sort of similar to a hotel, sometimes like a beer garden, that people eat meals but it’s still a hotel?

A. Sure. Look, just on that note, if I can come back to your question. In terms of the - we used to get referred a lot by the local licensing sergeant at the time, who had been at Bondi or Waverley for quite a period of time. And it was a bone of contention. So he regularly asked for our figures, which were our food figures, in comparison to our beverage sales, just to showcase the amount of meals that we were serving, which was more than adequate for the size of the venue. Obviously we had a lot of the tourist trade, especially being down at Bondi, so a lot of people came to obviously have a bite to eat on the beach.

33. Mr Champ confirmed that it was “actually a breach of your licence if someone was standing and drinking”.

34. At trial it was common ground, and in accordance with the security expert retained on behalf of Bucket List, that the premises “held a restaurant liquor licence” and was “not a vertical drinking environment”. Indeed, although the licence was not itself in evidence, its identification number was: LIQO600490093 (see paragraph 4.6 of Dr Zalewski’s report). The significance of the “O” (being the fourth character in the licence number) is that it was an “On-premises licence” as opposed to a hotelier’s licence (which commence with LIQH) or a licensed club (which commence with LIQC) or a packaged liquor licence (which commence with LIQP).

35. In contrast with other licensed premises such as a hotel or a club, an on-premises licence only authorises the supply of liquor if that is not the primary purpose of the business or activity carried out on the premises: Liquor Act, s 22. Thus the terms “licensed restaurant” and “licensed public entertainment venue” describe premises to which an on-premises licence attaches and where the primary purpose of the premises is a restaurant or public entertainment. An on-premises licence must specify the kind of business or activity to which the licence relates (s 23) and the sale or supply of liquor is only authorised if it is sold or supplied with, or ancillary to, another product of service that is sold, supplied or provided to people on the licensed premises: s 24(1). When the licensee Mr Champ said “the whole venue was a restaurant” he was conveying that the primary purpose of “The Bucket List Bondi” was to operate as a restaurant, and when he mentioned the concerns of the local licensing sergeant, those concerns appear to have been directed, at least in part, to what is perfectly plain from the CCTV footage between 5pm and 6pm on 22 December 2017, namely, that liquor was not being sold to most patrons to accompany a meal. To be more precise about this, camera 7 between 6pm and 6.09pm shows some 50 patrons clearly enough so that a view can be expressed as to whether they are eating or drinking. One man at the far end of table 74 is occasionally eating chips from a bowl. No other patron is clearly shown to be eating at all (although three other uncleared plates which would have contained food) may be seen on other tables. The large majority of patrons are drinking, and most of them appear to be drinking alcoholic beverages.

36. Counsel who cross-examined Mr Champ on behalf of Crossguard and who compared the premises to a hotel was not the only person who proceeded on that incorrect basis. So did police who were called to attend at 9:40pm on Sunday 5 March 2017. That incident involved claims that two patrons had been drinking, became involved in a fight, which led to a glass shattering. Unusually, in this incident the victim of a patron’s violence was a security guard. The COPS report tendered at trial describes him as such and, separately, gives his occupation as “security”. It records the following:

As the accused walked through the front courtyard he used his hands to knock over some chairs and kicked some tables over. The victim placed his hands on the accused’s shoulders and started to move him towards the exit of the hotel. As he did this the accused turned around and pushed the victim to the chest with both hands. The victim has then pushed the accused with both hands to the chest, causing the accused to stumble backwards. The victim has then grabbed the accused’s shirt with both hands, picked him up and started to escort him towards the exit. At this point the accused’s friends have come over and surrounded the victim, pulling him off the accused.

The accused has reached around a table and picked up a small stool, and hurtled the stool towards the victim. The victim ducked, narrowly avoiding contact with the stool. The victim then lunged towards the accused and grabbed him by the shirt and pushed him towards the exit of the courtyard. This has caused multiple people to contact police fearing for their safety.

37. The COPS records consistently describe the premises as a hotel. It is stated that “[l]icensing police have conducted an independent investigation” and it is also recorded that “[f]or the purposes of any future review process pertaining to the violent venue scheme, Police are satisfied that a ‘criminal incident’ took place upon the premises, involving an argument between several male persons (known to each other) and later an assault upon security staff”.

38. The report makes it clear that subsequent investigations confirmed that this was not a “glassing” incident (whereby a glass was deliberately broken and used as a weapon), and it was established at trial that the premises did not in fact become listed on the “Violent Venues Register”. (The regulatory response to “glassing” incidents, which included conditions mandating additional levels of security on particular premises, is described, in part, in Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436; 301 ALR 420.) Even so, it was clear that at least on 5 March 2017 (which admittedly was later at night, and on a Sunday) a single licensed security guard was insufficient to prevent intoxicated patrons from causing physical injury on the premises.

39. There was evidence that one reason for obtaining security from Crossguard was to make sure people were sitting down. Mr Champ said “Every single shift was just asking people [to sit down]. The majority of locals would understand; it was the tourists that just struggled with the idea that they were in a restaurant and had to be seated”. I shall return to this when addressing ground 6(g).

37. The mistaken belief by police that the premises were licensed as a hotel, the mistaken belief by patrons that they could drink while standing at the bar or elsewhere on the premises, and the need to retain Crossguard staff to get people to sit down, all suggest that the venue had many of the characteristics of a hotel. No doubt at meal times a deal of food was purchased. However, between 5pm and 6pm on the Friday before Christmas, there is little sign of food in any of the CCTV footage, the overwhelming majority of patrons are drinking, and it appears that they are mostly drinking alcohol.

38. In short, at the time Mr Martin struck Mr Chadwick, Bucket List (or at least its outdoor area) was operating as if it were a club or a hotel, despite having an on-premises licence authorising it to operate as a restaurant.

39. The conditions subject to which Bucket List was entitled to sell alcohol were, potentially, fundamental to the duties imposed upon Bucket List and Crossguard. For example, it was observed in Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106 at [37] that “the trial judge was entitled to infer that the security personnel were contracted by the licensee to ensure his compliance with both his statutory obligations under the Liquor Act and his specific obligations under his licence”, with the result that “the obligations of the security personnel would have included turning out persons thought to be intoxicated, and those involved in or likely to be involved in violent or quarrelsome conduct”. On-premises licences may contain conditions as to the presence and number of security guards (see for example condition 3010 mentioned in Sergeant John Lawrie v Tameeka Pty Ltd [2015] NSWSC 1513 at [21]). However, although the licence was not in evidence, Dr Zalewski gave evidence (apparently based on a print out dated 23 September 2013) that the licence “did not contain any security-related conditions”. I shall proceed on the basis that nothing in the licence conditions bears upon the duties owed by Bucket List or Crossguard to Mr Chadwick, or their breach, or the terms of the contract between Bucket List and Crossguard.

40. Two aspects of this regime are of particular importance in this appeal. First, s 28, which is titled “Certain licensed premises must be open to general public”, precluded Bucket List or Crossguard from excluding patrons for any reason that they might choose. That is one of the obligations accompanying the privilege of selling liquor pursuant to an on-premises licences relating to a restaurant. Secondly, s 77 did authorise both the refusal to admit, and the turning out of patrons, but only, relevantly, if they were intoxicated, violent, quarrelsome or disorderly. Those provisions give rise to difficulties for the first way the plaintiff advanced his case, insofar as it was contended that the behaviour of others with Mr Martin might cause the group as a whole to be turned out.

Contemporaneous testimonial evidence

44. There were two roughly contemporaneous accounts of the incident in evidence. The first, in the handwriting of Mr Izmiritlian, is in a diary book, with entries apparently made by Crossguard employees, occupying the entirety of a page for 22 December 2017. It identifies the manager as “Andrea” (a reference to Mr Finchera) and that security signed on at 16:30. Referring to the same time, it also states “head count 307 on entry”. There follows an account at 17:30 (the fact that the incident is described as occurring at 5.30pm suggests it was completed some hours after the event):

approached 2 males situated at outdoor area, as I was alerted to a dispute between 2 of them. The location was the 2^nd-3^rd VIP tables from the main entrance. A few words were exchanged when one male pushed another male. The male (6”2) tattoos on arm, denim jeans, blue cap, 25-35; blue long sleeve open shirt retaliated and threw a jug filled with drinks and ice and another male (5”0), 28-40 bald head, canvas brown shorts, black [illegible] top. Then he picked up a stool and hit him over the head, then cursing at me, lost his stance with momentum and fell over and ran away.

The police later came and the scene cordoned off. The venue was opened again at 20.30. At 10.30pm, 3 males were refused entry because they were intoxicated.

45. There is no reason to doubt that when Mr Izmiritlian noted that he “approached 2 males situated at outdoor area, as I was alerted to a dispute between 2 of them”, that was a reference to the approach which commenced at 18:07:46 when he had been standing at the entrance, following which he arrived at the table at 18:07:54. The reference to his being alerted to a dispute was no later than when another Crossguard employee walked past the table at 18:07:34 and went towards the entrance.

46. Because it bears on the second way in which Mr Chadwick advanced his claims, it is convenient to pause and provide a little more precision, by reference to the CCTV footage, as to how Crossguard employees reacted in the minute preceding Mr Martin’s attack upon Mr Chadwick. At 18:07:33 a younger Crossguard employee wearing sunglasses and a cap appears from the bottom of what is shown in camera 7, and walks quickly (noticeably more quickly than other patrons) down the stairs. He heads directly towards where Mr Martin and Mr Kerr are confronting each other, and evidently communicates something to Mr Izmiritlian at the entrance. He walks a short distance towards the entrance where he meets Mr Izmiritlian (who has left the entrance and walked towards the table) at 18:07:48. Both Crossguard employees then stand by Mr Martin’s table as the altercation between Messrs Martin, Chadwick and Kerr unfolds. Both are there when Mr Chadwick shoves Mr Martin, when Mr Martin throws the jug, when Mr Kerr pushes Mr Martin, when Mr Chadwick attempts to strike Mr Martin, and when Mr Martin strikes Mr Chadwick with a stool.

47. Mr Kovacevic made a police statement on 27 December 2017, which was the Wednesday following the incident. He had been sitting at a nearby “VIP” table with friends and family celebrating his 45^th birthday. He said that at about 5pm, a group of younger males between 25 and 35 years old arrived and sat at one of the tables he had reserved. He had told him “sorry guys, this table is reserved” and Mr Martin responded “we will move once [your] guests arrive”. He described him as wearing a white baseball cap, blue trackpants and a white t-shirt, and the CCTV footage confirms that this is reasonably accurate (certainly as to the cap and t-shirt, and the dark long pants shown on the footage are consistent with navy blue trackpants). He also said: “I took notice of the group sitting next to me as they were quickly becoming heavily intoxicated. They had a constant flow of buckets of beers at their table. The other males that were with the male with the white baseball cap, were very intoxicated”.

48. Mr Kovacevic also said: “I was trying to be as civil as I could around this group as I knew they would be trouble. I felt uncomfortable, they were very intoxicated. Some of them had bruised noses and strapped up hands. I just [was] uneasy and [felt] like something was going to happen with this group as if they wanted to fight”. However, it is clear from the CCTV footage (especially when they were ordering drinks from the bar shortly after their arrival) that neither Mr Martin nor the man with whom he arrived had strapped up hands, although the so-called “dancing man” who features prominently in the CCTV footage (see below) does.

49. There must have been a deal of additional contemporaneous records of the events. Police arrived soon after and would have taken statements. Mr Izmiritlian gave a statement a fortnight later. Mr Martin was prosecuted. If anything else by way of contemporaneous evidence was in evidence, it was not included in the appeal books, and my review of the transcript suggests that nothing was tendered.

50. Most of the trial was occupied by witnesses giving evidence more than five years later, and being cross-examined by reference to the CCTV footage. It will be necessary to return to both. However, the summaries and nature of that body of evidence will be more comprehensible against the backdrop of the reasoning of the primary judge.

The reasoning of the primary judge on liability

51. The primary judge regarded the plaintiff not to be “an overtly dishonest witness” but nonetheless was a man “somewhat deluded by his own image” and because of his lack of reliability, a “good deal of caution was needed before the plaintiff’s evidence was accepted”: at [15] and [17]. Mr Chadwick’s business activities as a social media “influencer” and his optimism about the success of that business are addressed below when dealing with quantum.

52. His Honour identified at [44] that “the real question in this case is whether the defendants were on notice that Mr Martin was a danger to other patrons”. That is correct, if understood as applying (a) to the hour before the altercation, on the first way in which Mr Chadwick’s case was advanced, and (b) to the minute or so before the altercation, on the second way in which Mr Chadwick’s case was advanced. His Honour addressed both aspects jointly, concluding that Mr Martin and his group should have come to the attention of the defendants, who should have acted to control, restrain or evict the group: at [45]. His Honour observed that there was no doubt that they were noticed by the defendants, including Mr Ruwald and Mr Izmiritlian. However, it is one thing for a group of men to have been noticed, and another to conclude that Mr Martin would by 6pm have been asked to leave, or had voluntarily left, the premises.

53. The primary judge accepted Mr Garrow’s evidence that the owner, Mr Ruwald, had said to him “yeah, it’s no good. I did ask security to keep an eye on those guys as they had already said a few things to other people”, noting that it was evidence only against Bucket List. Interpolating there, one of Crossguard’s complaints is that his Honour nowhere explained how that evidence was not taken into account in the findings made against it. His Honour noted that the cross-examination did not impact upon, let alone challenge, the very strong opinions expressed by Mr Kovacevic in his statement, including that they had been very loud, swearing and carrying on, chairs and buckets were falling over and at times they were being rude and obnoxious. However, as will be seen below, the cross-examiner did elicit from Mr Kovacevic concessions that Mr Martin was polite and courteous when he interacted with Mr Kovacevic.

54. Relying upon the statement of principle in Wagstaff v Haslam (2007) 69 NSWLR 1; [2007] NSWCA 28 at [50] about conduct which was “disruptive or aggressive”, his Honour identified at [70]-[72] passages in the evidence of Messrs Garrow and Kovacevic as “constituting that conduct”. This is an important passage in his Honour’s reasoning, which is reproduced in detail below. To anticipate what follows, there are three difficulties with the reasons. The first is that the passages relied upon by his Honour do not greatly assist in identifying conduct by Mr Martin which might warrant his removal. Much of the passage concerns the group of men with Mr Martin as a whole, and to the extent that Mr Martin is mentioned, it is merely that he (as well as the other men) was yelling. The second is that there was other evidence given by Mr Garrow and Mr Kovacevic which would come closer to amounting to anti-social conduct by Mr Martin, some of which was recited by his Honour elsewhere in the reasons, but which was not the subject of any express finding. The third is that insofar as the evidence was that of Mr Garrow (to the effect that Mr Martin was yelling), that occurred no earlier than 18:01. Seven minutes later, Mr Martin was striking Mr Chadwick. No attention was given to how the conduct relied on was conduct which could sustain the first way in which Mr Chadwick advanced his case. If that evidence was to be used as a basis for reasoning that Mr Martin and his group should have been excluded prior to the altercation, then either it was necessary to find that Bucket List or Crossguard should have been alerted to the conduct, and responded by turning them out, in the next three or four minutes, or else it was necessary to find that the same conduct had preceded Mr Garrow’s arrival. The primary judge made no such findings.

55. His Honour also relied upon the acceptance by Ms Ida Axelsson on behalf of Bucket List that had the behaviour of the Martin group as seen in the CCTV footage been made known to her, she would have expected at the very least that security would have intervened and evicted the group. That opinion was also problematic, because it was based not on anything she herself saw, or on any CCTV footage, but on assumptions put to her which were not reflected in findings by his Honour, or at least, not reflected in any explicit findings.

56. Turning to the position of Crossguard, his Honour noted the acceptance by Mr Izmiritlian that “a licensed guard or a manager could probably have successfully de-escalated the disagreement”, and that if “there was any suspicion of an impending fight a licensed security guard would investigate”. However, his Honour found that none of the Crossguard employees on duty at the time were licensed security guards. Instead, all were RSA marshals.  Mr Izmiritlian had previously been, for many years, a licensed security guard but not renewed his licence and therefore was not entitled under statute (according to him, because of “changes in the law”) to lay hands upon a patron to turn the patron out. His Honour expressed this conclusion at [98] in the following terms, many aspects of which are challenged on appeal:

I think that Mr Izmiritlian’s evidence, like that of Ms Axelsson, was highly detrimental to the defendants’ respective cases. As a result of their evidence, I am satisfied that:

(a)   The first defendant was content to allow the establishment to operate without licensed security guards on duty.

(b)   Properly staffed, there was a real possibility that the fight could have been avoided. Licensed security guards, even one of them, could have physically intervened to separate the combatants and lead, at least one of them, from the scene.

(c)   The second defendant, knowing the nature of the premises and knowing that it was a very busy period, supplied an inadequate contingent of security personnel, both as to numbers and as to their capacity.

(d)   Members of the Martin group variously behaved in a manner that ought to have generated an assessment of their intoxication levels. As already noted, the plaintiff’s pleadings specifically attack the defendants’ dealing with patrons, including, but not limited to Mr Martin.

(e)   There was a distinct inadequacy in the monitoring of persons entering the premises.

(f)   The manager of the premises, Mr Andrea Finchera, does not seem to have become involved in a manner in which he could have assumed the effective role of a licensed security guard.

(g)   The movements of Mr Ruwald give added credence to the evidence about him given by Mr Garrow.

57. It may assist to identify some of the problematic aspects of those seven points immediately.

1. Whether Bucket List was “content” or not about the absence of licensed security guards is contentious, not least because of the absence of any formal contract between Bucket List and Crossguard.

2. The second point is directed to the second way in which Mr Chadwick advanced his case. A “real possibility” does not establish causation (Mr Chadwick was not running a loss of a chance case). Further, it was said to go beyond the evidence, which fell short of saying that a single licensed security guard would more likely than not have prevented the altercation.

3. The third point was said to misapprehend the arrangement between Bucket List and Crossguard. It was Bucket List which nominated how many Crossguard employees would attend each day.

4. The fourth point does not go far enough to establish liability by itself. It is one thing for conduct to have “generated an assessment of their intoxication levels”; it is another thing for that assessment to have led to a finding of breach of duty for the group not to have been asked to leave.

5. The fifth point, a “distinct inadequacy in monitoring the persons entering”, was not elaborated. There was no finding that Mr Martin’s group should have been prevented from entering at 17:03, or that Mr Martin should have been prevented from re-entering at 17:38.

58. Paragraph 98 most naturally reads as a series of factual findings, but on reading the judgment as a whole, it also amounts to findings of breach of duty. That is best seen from the following passage at [116]-[122], which is conveniently reproduced in its entirety:

I do not think the security experts have greatly assisted on the issue of liability. Once I became satisfied that Mr Martin and his group had been rowdy and intoxicated, essentially since their arrival, and certainly since the arrival of the plaintiff, liability flowed with little difficulty.

In addition, the absence of proper security staff, both as to numbers and capacity, made the liability of the defendants plain. As to the sharing of liability between the defendants, I think they are equally liable.

It was the responsibility of both defendants to monitor and, if necessary, evict Mr Martin and his group. The second defendant provided inadequately qualified staff; the first defendant permitted the centre to function with inadequate security. I am satisfied that both defendants were aware that the Martin group were misbehaving. The staff of both defendants would, or ought to, have seen the Martin group being offensive, standing up and drinking and generally misbehaving. Other than a brief sign of interest by Mr Izmiritlian, no member of either staff acted appropriately to monitor, assess, or take any action in respect of the Martin group.

The second defendant submitted that, as a labour hire company, doing no more than supplying the personnel requested by the first defendant, its liability could not be derived from any obligation delegated to it by the first defendant. I agree, however, as the second defendant conceded, besides any possible liability through delegation, it also owed the plaintiff a duty of care through the actions of its employees.

As I have said, both the Crossguard staff and the first defendant’s staff were aware of the misbehaviour and intoxication of the Martin group. The second defendant submitted that as there were only three or four of its employees on duty at the time that, when compared to the 40 members of the first defendant’s staff, its liability should be correspondingly lower.

But as pointed out by the first defendant, its staff had a range of duties including service of alcohol, beverages and food, whereas the Crossguard employees had the specific task of monitoring alcohol consumption. Although an equal split may be a little favourable to the first defendant, I think the split is nevertheless appropriate having regard to the specific duties imposed on Crossguard.

I am equally satisfied that had appropriate action been taken, for instance eviction, the fight and subsequent injury to the plaintiff would not have occurred. I make the same finding in respect of intervention once the argument had started. In other words, I am satisfied that the plaintiff’s injuries were caused by the breach of duty of the defendants. Put yet another way, but for the failure to control or evict Mr Martin and his friends, or to have intervened in the altercation, the plaintiff would not have been injured.

59. This passage is principally concerned with the apportionment of liability as between Bucket List and Crossguard. The first paragraph puts to one side the evidence of the security experts, and summarises findings earlier made from which “liability flowed with little difficulty”. The finding that Mr Martin and his group were “rowdy and intoxicated, essentially since their arrival” must relate to the evidence of Mr Kovacevic, but the passage of his evidence relied upon by the primary judge speaks only to their intoxication. Moreover, no findings are made explaining what precisely should have occurred with the result that Mr Martin would more likely than not have left the premises before Mr Chadwick arrived. In the absence of any conduct justifying Mr Martin’s immediate exclusion, how would, say, serving the group water have led to his departure? His Honour’s further statement “certainly since the arrival of the plaintiff” indicates that the reasoning extends to Mr Garrow’s evidence, but the conclusion that “liability flowed with little difficulty” assumes that causation is resolved in Mr Chadwick’s favour but without explaining how in the seven minutes between Mr Chadwick’s arrival and assault something different would have happened. In short, there is no clear statement of breach, nor any analysis of causation.

59. A separate problem arises in relation to the second paragraph. The finding that there was “an absence of proper security staff” does not explain what the breach was, nor does it explain why it is a breach of duties owed by either defendant. The words “both as to numbers and capacity” mean that there was a breach in there not being more than four Crossguard employees, but how many should there have been? And how many should have been licensed security guards? Those matters were left undetermined by the primary judge.

60. Similarly, the final paragraph expresses a conclusion that both ways in which Mr Chadwick’s case on liability were advanced had been made out. However, the finding is that if “appropriate” action had been taken, the fight and injury would not have occurred. What that appropriate action was and when it should have been taken have not been identified.

61. Although most of those issues are factual, they are framed by reference to the duty of care owed to Mr Chadwick, which itself gave rise to the first two grounds of appeal. It is convenient to address those grounds immediately.

Duty of care and risk of harm (Grounds 1 and 2)

63. Bucket List contended that the primary judge erred in “failing to identify accurately the content of the duty of care owed by [Bucket List] to [Mr Chadwick] having regard to the particular circumstances of the case” and in “failing properly to identify the relevant risk of harm of which the appellant knew or ought to have known”. These two grounds are conveniently addressed together, as they were in Bucket List’s submissions. Indeed, Bucket List’s submissions dealt with the first five of its grounds of appeal together, and compendiously.

64. As part of its submissions in support of these grounds, Bucket List cavilled with what it said was a “change in the characterisation of the risk of harm” between the pleadings and Mr Chadwick’s closing submissions at trial. In the former, it was alleged that “The risk of harm if reasonable precautions were not taken was the risk that a patron who was engaging in indecent, violent or quarrelsome conduct on the premises may assault and injure another person”. In closing address, Mr Chadwick defined the risk of harm as “that a patron exhibiting signs of intoxication and/or engaging in anti-social behaviour may assault another patron”.

65. The identification of “risk of harm” is important and indeed necessary in order to apply ss 5B and 5C of the Civil Liability Act 2002 (NSW). Many authorities stressing this were collected in Venues NSW v Kane [2023] NSWCA 192 at [54] and need not be repeated here. Mr Chadwick’s pleading, appropriately, identified the risk unambiguously. Contrary to Bucket List’s submission, I fail to see how there was any material variation in what was pleaded and what was advanced in closing address. As much is confirmed by what occurred at trial, which may be summarised as follows:

1. Bucket List did not in its pleadings admit the paragraph containing Mr Chadwick’s formulation of the risk of harm, nor did it advance any alternative formulation of the risk of harm.

2. At trial, Bucket List reiterated the pleaded risk of harm without criticism.

3. In his written submissions supplied in advance of the hearing in this Court, Mr Chadwick said that there was no dispute at trial as to the pleaded risk of harm, and that the contention that there was some change in his case had not been advanced at trial. Nothing was said in response by Bucket List’s written submissions in reply or oral submissions.

66. The primary judge adopted a slightly wider risk of harm. Rather than the risk of physical injury from patrons who were objectively manifesting signs of intoxication or anti-social behaviour, his Honour simply characterised the risk as physical injury from an intoxicated person. There is no error in adopting that wider characterisation. The wider characterisation excludes the element of an objectively manifested intoxication or anti-social behaviour. However, it is difficult to point to any precautions that a reasonable licensee could take against the risk that a patron who manifests no signs of intoxication or anti-social behaviour, but who nevertheless is intoxicated, might without warning inflict harm on another patron.

67. For those reasons ground 2 is not made out.

68. Turning to the formulation of duty, I think that Bucket List’s ground as formulated is wrong in point of principle. Duties of care do not ordinarily exist contingently on “the particular circumstances of the case”. Instead, it is the particular circumstances of the case which mean that they have or have not been breached. Another way of putting this is that the duty of care owed by Bucket List was owed to patrons independently of the presence or absence of Mr Martin on 22 December 2017 – the same duty of care would have been owed the previous or the following evening. Similarly, although it was said in Sam v Atkins [2005] EWCA Civ 1452 at [17] and [24] that a motorist owed no duty to a pedestrian who suddenly stepped out from behind a parked vehicle which blocked the motorist’s view, in reality this is a case where the duty motorists owe to pedestrians has not been breached, and it is “decidedly peculiar”, as Professor Weir pointed out, to decide the case on the ground of no duty: T Weir, Introduction to Tort Law (2^nd ed Oxford University Press 2006), p 33. The same point was made by Professor Goudkamp in his note “Breach of Duty: A Disappearing Element of the Action in Negligence?” (2017) 75 Cambridge Law Journal 480 at 482, by reference to Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 and Southern v Adventure Forest Ltd [2016] EWCA Civ 1178 (where a duty to an invitee was held not to be owed in relation to a particular danger on the premises):

Judges, by over-specifying the content of the duty of care element, routinely treat breach cases as though they were duty cases. … Judges who proceed in this way typically utter formulae such as: “no duty of care was owed by the defendant in the present case to do φ because the reasonable person in the defendant’s position would not have done φ.” However, the structure of that phrase reveals immediately that the duty of care element is not in play at all. The very fact that the court is discussing what the reasonable person in the defendant’s person would have done indicates that the dispute is actually about the breach element, that being the only element of the action in negligence that is concerned with the satisfactoriness of the defendant’s conduct.

69. Bucket List wished to submit that it owed no duty to prevent harm “in the particular circumstances of the case”, namely, injury which was the immediate consequence of Mr Chadwick’s escalation of the dispute between him and Mr Martin. That is an example of an over-specification of duty mentioned by Professors Weir and Goudkamp. Bucket List’s real point is not that there was no duty owed by it, but that the duty it did owe was not breached in the particular circumstances of the case.

70. A further obstacle confronts this ground. The primary judge proceeded, in accordance with the submissions advanced by the defendants, that something more than mere intoxication was necessary before anyone came under a duty to take steps to intervene by removing a patron. Bucket list had submitted at trial that:

The duty owed to patrons is a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons.

71. In its closing submissions, Bucket List maintained that:

The mere fact of a degree of intoxication in a patron will not give rise to a duty to take immediate steps to remove an affected person in order to protect other patrons. An additional element is required that is, knowledge, either actual or constructive, of the aggressive character of the person, when intoxicated, based on either known characteristics or conduct on the occasion in question.

72. In accordance with the defendants’ position, the primary judge stated at [31]:

The defendants made almost no concessions in relation to liability. Ultimately however, the main thrust of their submissions was that no matter how intoxicated Mr Martin and his group might have been, they were never on notice that Mr Martin displayed any propensity towards violence. This approach was derived from a number of authorities, but summarised [by] Brereton J at [8] in Quintano:

“The relevant duty to exercise reasonable care for the safety of patrons depends upon proof that the manager or licensee knew or ought to have known facts requiring intervention to protect patrons and in those circumstances failed to take reasonable steps to safeguard the plaintiff from a foreseeable risk of harm. A duty to take immediate steps to remove an affected person in order to protect others is not triggered by the mere fact of a degree of intoxication, but requires an additional element – either actual or constructive knowledge of the aggressive character of the person while intoxicated, based on known characteristics, or conduct on the occasion in question: Chordas v Bryant (Wellington) Pty Ltd; TAB Limited v Atlis; Wagstaff v Haslam, [28]-[37]; Collingwood Hotel Pty Ltd v O’Reilly; Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2, [34]”.

73. There is no error in that formulation. As Mason P said in Oxlade v Gosbridge Pty Ltd [1998] NSWCA 167:

It is exceptional for the law to impose a duty to exercise care in controlling a third party to prevent the third party doing damage to another (see generally Smith v Leurs (1945) 70 CLR 256). But 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 duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises (see Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91). …

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.

74. By reference to those and other authorities, and in light of Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61, in Wagstaff v Haslam at [39] Basten JA identified two propositions falling within the duty of care in such cases:

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

2. whose presence at a particular time was or should have been known to constitute a source of danger to other patrons.

75. To similar effect, Basten JA, with whom Gleeson JA agreed, said in Brighten v Traino [2019] NSWCA 168 at [127] that there could only be a breach of duty by a licensee if “he knew, or should have known, that Mr Richardson was out of control and likely to cause harm to persons other than Mr Provan”. That was a somewhat different case, because the plaintiff was injured outside, but in the vicinity of, the premises, after the intoxicated patron (Mr Provan) had been turned out. The third member of the Court, Brereton JA, said at [157] that the duty arose “from the capacity and statutory obligation of the manager or licensee to control conduct on licensed premises (for example, under Liquor Act 2007, s 77), coupled with the knowledge or ability to know about the conditions of persons on the premises”, but added that “a duty to take immediate steps to remove an affected person in order to protect others is not triggered by the mere fact of a degree of intoxication, but requires an additional element – either actual or constructive knowledge of the aggressive character of the person while intoxicated, based on known characteristics, or conduct on the occasion in question”.

76. In short, the duty applied by the primary judge reflected the defendants’ submissions at trial, and accorded with the authorities summarised above. This ground is not made out.

Review of findings of fact generally

77. It is not difficult to believe that the witnesses, especially Messrs Garrow and Kovacevic, had an actual recollection of the altercation and fight between Messrs Chadwick, Martin and Kerr. But even that recollection was faulty – for example, Mr Garrow readily conceded when confronted with the CCTV footage that he did not recollect that Mr Chadwick had pushed Mr Martin, and attempted to punch him, and had been wrong to describe Mr Martin’s attack as “unprovoked”. The recollections of witnesses of what had been happening at Mr Martin’s table in the hour preceding the altercation and fight are unlikely to have been so vivid, if they existed at all, more than five years after the event.

78. Obviously the primary judge was in a different position from this Court, which has not seen the witnesses give evidence. However, the findings made by the trial judge are quite limited. His Honour was cautious in accepting Mr Chadwick’s evidence, and he also fell well short of expressly making findings in accordance with all aspects of the evidence of Mr Kovacevic and Mr Garrow.

79. His Honour was also, appropriately, alert to the limitations of the CCTV footage. In this respect much depends on why it is being used, as was explained in Chandler v Transport for New South Wales [2023] NSWCA 6; 103 MVR 265 at [20]-[21] including by reference to what was emphasised in Taitoko v R [2020] NSWCCA 43 at [81]. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed. This bears upon one large area of factual challenge in this appeal, namely whether or not the CCTV footage shows signs of intoxication and anti-social behaviour sufficient to have warranted the exclusion of Mr Martin and his group prior to Mr Chadwick’s arrival.

80. It warrants reiterating that the CCTV footage is very useful in some respects, and potentially deceptive in others. The CCTV footage enables precision to be given to the location and timing of events that are utterly beyond the capacity of most witnesses (for example, many witnesses have a very poor idea of how long 20 seconds is). However the CCTV footage has many limitations. It has no sound. Only limited camera angles are shown. It is difficult if not impossible to make out the facial expressions on Mr Martin and his group. It is exceptionally difficult to determine whether some of the behaviour of men in Mr Martin’s group is merely exuberant or is palpably anti-social, or somewhere in-between.

81. Take for example the first interaction between Messrs Chadwick, Garrow and Bradshaw and Mr Martin’s group. The video shows Mr Bradshaw and Mr Martin shaking hands at 18:01. With the benefit of testimony concerning what was said and its tone, and in particular with the benefit of hindsight, knowing what was to occur a few minutes later when the two groups next interacted, it seems likely that the handshake was far from amicable. But the CCTV footage does not assist in determining whether that is how it would have appeared at the time.

The risk profile of Bucket List (Grounds 6(f) and (g))

82. These two sub-grounds challenge the following findings:

1. That the record of incidents indicated that “unruly conduct, often violence, were common occurrences at the venue”, a statement made by the primary judge at [106] by reference to the evidence of the plaintiff’s expert Mr Fullerton.

2. The finding that “The incident occurred after 6pm on the final Friday before Christmas. The assumption that 5pm onwards was not a high-risk period is untenable”, statements made in the course of criticising the contrary view expressed by Bucket List’s expert at [109(d)].

3. That “the mere engagement of the second defendant, is an acknowledgement of the risk and the need to take precautions, as the second defendant was specifically engaged to give effect to the precautions”, a statement made by his Honour at [25].

83. These two sub-grounds were those addressed most elaborately in, and at the forefront of, Bucket List’s “Additional Submission with Respect to Contested Findings” document, supplied in an attempt to comply with UCPR r 51.36. The main attack was directed to the first factual finding. Bucket List challenged what appeared from the diary entries. Its submissions were directed to the diary entries in exhibit C, to which it said that the primary judge did not refer. That is strictly correct, but only in a highly technical sense, because some of the same material was also contained in exhibit D, to which his Honour did refer, including the diary entries which recorded “1 x male patron became aggressive when ATL Physical altercation with 4x security” at 20:10 on 22 January 2017, and on 2 September 2017 two incidents of “1 x Male ATL Intox & Aggressive” (the time of these is not stated). “ATL” is an abbreviation for “asked to leave”, which is an important element of the licensee’s obligation to avoid permitting intoxication on the premises. One way in which the licensee can avoid committing the offence created by s 73(1) of the Liquor Act of permitting intoxication on premises is to fall within s 73(4):

If an intoxicated person is on licensed premises other than a vessel, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves that –

(a) the licensee, and the licensee’s employees or agents –

(i) refused to serve the person liquor after becoming aware the person was intoxicated, and

(ii) asked the person to leave the premises, and

(iii) if the person did not leave the premises immediately after being asked to leave or refused to leave – contacted, or attempted to contact, a police officer for help in removing the person from the premises …

84. The gravamen of these grounds is that the premises were safe and low-risk. It said that Crossguard was retained to provide security in order to ensure that Bucket List did not breach the terms of its licence, in particular the requirement that alcohol be consumed sitting down. Bucket List said that the diaries showed that the premises were uneventful at 6pm on a Friday, that there were only 18 entries for 365 trading days, and that only one event had occurred earlier than 7pm, which was on Saturday 16 December. The written submission then gave an anodyne summary of most of the diary entries.

85. Bucket List’s submission included the following:

In the joint conclave of security experts (Blue 773-783), the experts Dr Zalewski and Mr Smith agreed that the venue was a low-risk venue; that RSA compliance was the primary risk attached to the trading period under consideration; that there were peaks and troughs in the risk of aggression and violence occurring at licensed premises generally, with certain trading periods experiencing a lower risk and others (such as late in the evening) presenting a higher risk; that when using historical data to assess a venue’s risk of aggression and violence, only data specific to a similar trading period was relevant; and the fact that front of house staff had RSA training and the further fact that The Bucket List staff were assisted by RSA marshals from Crossguard, whose sole function was to monitor alcohol consumption and behaviour, meant that the provision of security and oversight at the venue was reasonable.

86. That paragraph is accurate so far as it goes. But it does not greatly assist to resolve the challenge to the finding of fact. That is because it deals only with the evidence of the two experts, Dr Zalewski and Mr Smith, retained by Bucket List and Crossguard, and makes no mention of Mr Chadwick’s expert Mr Fullerton who disagreed with all the opinions reproduced in the submission. Mr Fullerton had spent 11 years as a police officer, including four years in licensing, some seven years in security and compliance at three clubs, followed by a decade as the Executive Manager of Barrington Group which provided security, compliance and security risk management consulting to, inter alia, the liquor industry. Mr Fullerton said there was a “History of incidents at the venue including at least nine violent or aggressive incidents between 2 September 2017, and 22 December 2017”, and that there was a foreseeable risk of high patronage on the Friday before Christmas. He said that a further reason that only one licensed security guard was insufficient was the clientele of young men and the methods of alcohol service (beers in buckets and premixed drinks in jugs).

The provision of private security services is quite rightly considered a high-risk activity. Security licensees are given access to firearms and to large quantities of cash. They often have access to commercially sensitive sites and information, as well as being routinely asked to maintain order in public areas and to diffuse potentially dangerous situations. We ask a lot of our security firms.

Security industry licensees are providing vital services to communities right across New South Wales every day—in hospitals, pubs and clubs, banks, shopping centres and defence sites. But, as a high-risk industry, we expect a lot too. It is vital that the Commissioner of Police and his delegate— as industry regulator—are appropriately empowered and resourced to keep the industry honest and to ensure holders of security licences are properly trained to do their job. It is worth repeating that we rely on the NSW Police Force to weed out rogue operators and to maintain high standards of probity and training across this industry. Accordingly, this bill seeks to strengthen the Security Industry Act 1997 by making a series of small but significant changes requested by the regulator: the NSW Police Force.

229. Bearing in mind the informality of the arrangement between Bucket List and Crossguard, and the tightening of the regulatory regime which caused some licensed security guards including Mr Izmiritlian to let their licences expire, it seems plausible that despite Mr Izmiritlian no longer being a licensed security guard, and therefore being unable to apply physical force to patrons, both Bucket List and Crossguard were content to proceed as usual.

230. That is the context in which the Court must assess Crossguard’s submissions that (a) it was never alleged that it was the responsibility of Crossguard to have two licensed security guards present, and (b) that “[i]f there was a failing in the system of security, this was an issue for the Bucket list only”, “It was the Bucket List’s system” and “Crossguard simply provided personnel”. But the evidence all pointed to it being left to Crossguard to choose the number of RSA marshals and the number of licensed security guards, at least in the first instance when responding to Bucket List’s request for a specified number of personnel. It is true that it would have been obvious upon the arrival of Crossguard personnel how many were licensed security guards and how many were RSA marshals (from their sign-in details and from their uniforms) and it is quite possible that in advance of each evening there was some communication about who had been rostered on and what their qualifications were. There is nothing to suggest that Bucket List ever insisted upon there being any particular number of licensed security guards. On the other hand, there is also Mr Izmiritlian’s evidence that there were generally two licensed security guards when the venue was busy.

231. Bucket List directed Crossguard to supply five security personnel on 22 December 2017. Bucket List did not distinguish between licensed security guards and RSA marshals. Crossguard chose to supply only RSA marshals, despite the known history of violence at the venue and the potential for its personnel to be called upon to prevent future violence. However, Bucket List which was equally familiar with the venue’s history of violence, must have appreciated that none of the Crossguard employees were licensed security guards, but made no complaint. In those circumstances, both companies caused the absence of any licensed security guard on the premises when Mr Martin struck Mr Chadwick.

232. Separately from the above, Crossguard also complained of the fact that the primary judge admitted Mr Garrow’s evidence that the owner had told him that he had asked security to attend to Mr Martin’s group only against Bucket List. Whether or not that evidence was used as part of the primary judge’s acceptance of the first way in which Mr Chadwick advanced his case is unclear, but nothing turns on it, because this complaint does not bear upon the second way in which Mr Chadwick’s case was advanced.

Separate duty of care owed by Crossguard (Grounds 1 and 2)

233. Crossguard advanced grounds 1-2 alleging a failure to identify the nature and scope of a separate duty of care owed by Crossguard to Mr Chadwick. There is force in the submissions of Crossguard concerning the abbreviated analysis of a separate duty owed by it in the reasons of the primary judge. However, in part that reflects a concession made at trial. At [119]-[120] the primary judge said:

The second defendant submitted that, as a labour hire company, doing no more than supplying the personnel requested by the first defendant, its liability could not be derived from any obligation delegated to it by the first defendant. I agree, however, as the second defendant conceded, besides any possible liability through delegation, it also owed the plaintiff a duty of care through the actions of its employees.

As I have said, both the Crossguard staff and the first defendant’s staff were aware of the misbehaviour and intoxication of the Martin group.

234. At trial, counsel for Crossguard had said in final address:

As your Honour rightly says, that doesn’t mean we don’t have a duty. We had people that went there because they were requested to go there. They have to do their job properly, and if they don’t, that’s where there might be some liability. But we say there’s simply no liability.

235. In its written submissions to this Court, Crossguard relied upon what had been said by Brereton J in Quintano at [10]:

A security firm contracted to provide security services to give effect to the licensee’s obligation owes a duty of care to patrons, not to ensure their safety, but to take reasonable measures to protect them from foreseeable harm, including but not limited to taking steps to turn out patrons from whom violent conduct ought reasonably have been anticipated [Collingwood v O’Reilly, [23]]. If a guard employed by such a firm neglects his duties, that is generally the responsibility of the security firm that employs the guard, not of the licensee/operator [Perkins v Redmond, [143]]. However, the duty of a security firm retained by the licensee/operator is influenced by the contract: if there is a complete delegation, then the security firm’s duty will be similar to that of the proprietor; but if the firm is retained only to provide specific services, its duty is not enlarged beyond the prudent performance of those services.

236. It does not greatly matter whether there was a “complete delegation” or if Crossguard “was retained only to provide specific services”. Either way, there was a foreseeable risk of physical violence from patrons at the premises, such that Bucket List was required as a reasonable step to put in place arrangements for the presence of security. Bucket List retained Crossguard to that end.

237. Crossguard at the minimum was under a duty to take reasonable measures to protect patrons from the violence of intoxicated or anti-social patrons. All that matters for present purposes is that that duty extended to an ability to apply physical force if necessary. I have explained above the legal difference between licensed security guards and RSA marshals; the former, but not the latter, could apply physical force. The duty owed by Crossguard was breached when Crossguard supplied four security personnel, none of whom was a licensed security guard. A reasonable precaution in order to comply with the duty to which it was subject was for at least two of the four to have been licensed security guards.

238. Crossguard’s submission to the contrary was that “[i]t is clear that at all times the Bucket List was controlling the detail of the security arrangements. Crossguard simply provided personnel to the Bucket List as and when required”. That submission is only true in respect of the number of personnel supplied. The evidence was that it was left to Crossguard to determine how many of its personnel who were supplied were licensed security guards as opposed to RSA marshals.

239. Crossguard submitted that “[t]he duty owned by Crossguard therefore did not extend beyond what was reasonably required of it to perform its contracted services on the night”. This (like much of Crossguard’s submissions in this Court) was a verbatim repetition of what had been put in writing at trial (it was paragraph 94 of its closing written submissions). Even if that is true, the duty is breached. What was reasonably required of Crossguard was an ability to intervene physically if required. By sending a contingent of personnel none of whom was a licensed security guard, Crossguard brought about the situation where there was no one who was lawfully entitled to intervene to separate Messrs Chadwick and Martin. That fell well short of complying with the duty it owed to patrons prudently to perform its obligations under the contract with Bucket List that evening.

Risk of harm (Ground 3)

240. By ground 3, Crossguard maintained that the “primary judge erred in determining that the risk of harm was foreseeable and not insignificant”. No part of that ambitious submission was developed orally. In written submissions, it was said that there was “no evidence that Crossguard had any actual knowledge of the risk of harm”. It was common ground that the risk of harm was from one patron hitting another. Crossguard had actual knowledge of the litany of acts of violence that had occurred in the premises over the previous three months, and of the security guard who had been injured earlier in the year. It was also said that because “the incident involving Chadwick appears to have been a ‘one off’ isolated incident, of which Crossguard could not be said to be on notice, Chadwick cannot show that the risk of harm in this case was one that can be described as ‘not insignificant’”. This proposition is falsified by the same history. Spontaneous acts of violence leading to physical injury had regularly occurred at the premises.

Objections to evidence of Mr Kovacevic (Ground 5)

241. Ground 5 is that “The primary judge erred in overruling the objections taken to the evidence of Elvis Kovacevic”. Although the ground is framed in the plural, it was advanced by reference to a single point, namely, paragraph 10 of Mr Kovacevic’s police statement, which provided as follows:

I was trying to be as civil as I could around this group as I knew they would be trouble. I felt uncomfortable, they were very intoxicated, Some of them had bruised noses and strapped up hands. I just [felt] uneasy and like something was going to happen with this group as if they wanted to fight.

242. In support of the objection which was advanced by Bucket List, that this was impermissible opinion evidence, the primary judge said “It’s just common sense isn’t it”, to which Mr Morris replied “Your Honour, I’ve got nothing further to put”.

243. This ground was advanced in two sentences in Crossguard’s written submissions, in a long section which did not distinguish between grounds 3, 4 5 and 6 (which dealt with duty and breach as well as the admissibility of evidence). The two sentences were:

The trial judge’s overruling of the objection to Kovacevic’s speculative evidence at Black 491 N, showed trial judge’s apparent “common sense” approach to this evidence that appeared to be that all intoxicated men are trouble. This approach can be seen in the trial judge’s finding at RED 62F that “it is uncontroversial that intoxicated persons can be dangerous and can cause harm”.

244. To this Mr Chadwick’s submissions responded:

Crossguard by ground 5 contends that the primary judge erred in “overruling the objections taken to the evidence of Elvis Kovacevic”. The two sentences directed to this ground in written submissions (CS [113]) cite an objection taken by the Bucket List to paragraph 10 of Mr Kovacevic’s statement (see Black2 491N, Blue2 487E). The asserted error is not clear. The evidence is a lay opinion which plainly was admissible: s 78 Evidence Act 1995 (NSW); Lithgow City Council v Jackson (2011) 244 CLR 352 at [45], [48].

245. Crossguard made no written submission in response. The ground was not abandoned in Crossguard’s oral submissions, nor was it mentioned.

246. There was no error in admitting paragraph 10 of Mr Kovacevic’s police statement. The evidence was admissible as a lay opinion pursuant to s 78 of the Evidence Act 1995 (NSW). In any event, Mr Chadwick’s written submissions correctly asserted that the nature of the error for which Crossguard contended was unclear. It was never clarified. Even if there had been error, it could not be material until and unless the second way in which Mr Chadwick’s case was advanced was rejected. It follows that even if the ground had been articulated and had have been made out, it could not give rise to any relief independently of the grounds challenging the acceptance by the primary judge of the second way in which Mr Chadwick’s case was advanced.

247. In truth, this was a ground which should never have been advanced, or should have been abandoned prior to or at the hearing of the appeal.

Causation (Ground 6)

248. Ground 6 is that the primary judge erred in finding that the breach of duty owed by Crossguard was causative of Mr Chadwick’s injury. The breach was in failing to supply at least two licensed security guards. I have referred above to the evidence that had that occurred, more likely than not Messrs Martin, Chadwick and Kerr would have been separated before Mr Martin struck Mr Chadwick.

249. Crossguard’s submissions on causation had two themes. One was the evidence of Mr Izmiritlian that, by himself, he could not have stopped the altercation, even if he had maintained his security guard licence. That is not an answer to the causal impact of the breach in there not being two licensed security guards, which (according to Mr Izmiritlian) was generally the case when the venue was busy. The second was to point to the evidence of Crossguard’s security expert, which pointed all blame to Bucket List for failing to establish a proper system of security. But once again that is not a basis for overturning the finding of causation based on the second way in which Mr Chadwick advanced his case.

Contributory negligence (Ground 8)

250. The essence of the position is this. Mr Chadwick received verbal abuse from Mr Martin on his arrival, to which he did not respond, at least not in any physical way. Mr Chadwick through no fault of his own had to pass Mr Martin’s table again when searching for a seat. There was a further exchange, with Mr Chadwick facing up against Mr Martin over some 20 seconds between 18:07:05 and 18:07:25. Between 18:07:53 and 18:08.00, two security guards were immediately adjacent the three men. Then at 18:08:00 Mr Chadwick escalated the dispute by pushing Mr Martin. Mr Martin responded by picking up and hurling a jug to the ground, following which Mr Kerr intervened and pushed Mr Martin hard. One of the security officers placed himself between Mr Kerr and Mr Martin, but then Mr Chadwick returned from the side to attempt to strike Mr Martin.

251. The primary judge addressed contributory negligence as follows at [124]-[128]:

I think it important to reaffirm that Mr Martin had loudly expressed an adverse view of the plaintiff’s group well before the fight, in particular about Mr Bradshaw’s tattoos. This conduct is precisely the type of conduct that should have led the defendants’ staff to take action against the Martin group.

I do also accept however, that when the plaintiff was conversing with Mr Martin the conversation obviously reached a point of substantial antagonism. Like Mr Bradshaw, I think the plaintiff had the option to walk away from the Martin group. In addition, the plaintiff pushed Mr Martin, perhaps justifiably, in his view, because of what was being said to him, but there is no suggestion that he was acting in self-defence. The same applies to the punch that he aimed at Mr Martin.

The plaintiff told Dr Samuell that Mr Martin had “got into his face”, causing the plaintiff to push Mr Martin away (Ex B, p 433). The CCTV footage clearly shows Mr Martin pointing to the street, presumably to engage in physical combat with the plaintiff.

I think there was contributory negligence on the part of the plaintiff, but I think it is far exceeded by that of the defendants in allowing abusive, aggressive and obviously intoxicated persons to be on the premises. Had the Martin group been evicted or controlled no incident would have occurred. But they were permitted to be there, enabling the altercation to commence. The plaintiff should have ignored whatever taunting was aimed at him, but he chose to remain and take part. In doing so he failed to take care for his own safety.

In my view, the presence of the Martin group was by far the major factor in the altercation. I assess contributory negligence at 20%.

252. Bucket List and Crossguard security challenged that reasoning, submitting that it gave undue significance to the continued presence in the venue of Mr Martin and his group, by failing to have regard to Mr Chadwick’s intentional return to Mr Martin’s table, and by failing to have proper regard to the culpability and causal potency of Mr Chadwick’s acts in returning to Mr Martin’s table, initiating the verbal confrontation, and in initiating and continuing a physical assault on Mr Martin.

253. These submissions as advanced by Bucket List and Crossguard are unpromising. The “intentional” return to Mr Martin’s table is not established on the facts – Mr Chadwick had no choice but to circle around the crowded venue looking for a table, and in doing so necessarily had to walk past Mr Martin’s table. The other challenges based on “undue” significance being given to Mr Martin’s presence and a failure to have “proper” regard to Mr Chadwick’s initiating and continuing a physical assault upon Mr Martin are in truth complaints about the weight to be given to those considerations. It is normally insufficient to make out a case for appellate interference with an evaluative determination to contend that insufficient weight has been given to a relevant matter: see Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [12]-[20], and the present case is no exception, having regard to the deference to be accorded to findings of contributory negligence; cf Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493.

254. However, for the reasons given above, neither defendant should have been found liable in negligence to Mr Chadwick on the basis that they should have turned Mr Martin and his group out of the premises before Mr Chadwick arrived. It follows that the assessment of contributory negligence is wrong in a material respect and must be determined afresh. Mr Lloyd with his characteristic candour acknowledged as much in his oral submissions. But even were it not necessary to redetermine contributory negligence afresh upon a different basis from that found at trial, I would not, with respect, accept a finding that the liability for the defendant’s negligence should rest 80% upon the defendants and 20% upon the plaintiff. In particular, it was the plaintiff who escalated the dispute from the verbal to the physical, and it was the plaintiff who, after security had sought to intervene and after Mr Martin had responded to his push, re-inserted himself into the fray with an entirely unsuccessful attempt to strike Mr Martin with his fist. This is a case where the finding of 20% contributory negligence is so far outside the available range that it must be inferred that there has been a failure properly to exercise the discretion answering the description of the last category of case enumerated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. Perhaps that was what Bucket List and Crossguard intended to convey by submissions that “proper” regard was not had to those matters, although appellants who seek to challenge an assessment of contributory negligence ought to be clear as to the basis on which appellate review is sought.

252. Plainly Mr Chadwick’s conduct in escalating the altercation, and then in attempting to punch Mr Martin, materially contributed to his being injured. If he had not acted in that way, he most likely would not have been injured. Mr Chadwick’s damages are to be reduced to such extent that the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. This turns not merely upon a comparison of culpability, but also upon the causal potency of parties’ acts which caused damage: Podrebersek v Australian Iron & Steel Pty Ltd.

253. To what extent did culpable conduct by Mr Chadwick contribute to the harm he suffered? Mr Martin should not have been permitted to strike Mr Chadwick. Bucket List, which was operating a business with a view to making money from the supply of pre-mixed drinks and buckets of beer to patrons, is in one sense more culpable than Mr Chadwick, who had merely entered the premises wanting to have a beer with his friends, and was entitled to expect that Bucket List had taken reasonable precautions to prevent the foreseeable harm of injury from an intoxicated patron at a crowded venue where much alcohol had been served. I bear in mind what was said in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [20]:

[T]he duties cast upon those responsible for the service of liquor on licensed premises can be understood as a part of the price that is exacted for the statutory permission granted under the Liquor Act. The permission granted is to do what otherwise the Act forbids - sell liquor - and to do that on premises to which members of the public may resort only in accordance with the conditions on which the licence is granted.

257. On the other hand, Mr Chadwick twice escalated the situation, by striking the first blow, and then, after the RSA marshals had sought to separate Messrs Martin and Kerr, attempting what appears to be a punch rather than a shove.

258. I have considered a finding that Mr Chadwick’s contributory negligence be assessed at 60%. However, I think that it would be excessive to assess his culpability and causal potency at half as much again as that of those operating commercial premises with a view to making gain. I have also considered assessing Mr Chadwick’s contributory negligence at 40%, but my difficulty with that is that he was the person who initiated physical contact and then escalated the confrontation by attempting to strike Mr Martin after security had intervened. I conclude that my initial instinct that a finding of 50% contributory negligence is appropriate. All these cases turn on their own facts, but I note that that result accords with the roughly comparable circumstances considered by Brereton J in Quintano at [86]:

It is essential to bear in mind that the present case does not involve balancing responsibility between Luke and the shooter; rather, it involves an evaluation of the relative responsibility for Luke’s damages of his own decision voluntarily to enter into the fray, and BWR’s failure by a security guard to prevent it. On the one hand, there is a greater degree of culpability in Luke’s voluntary decision to become involved in the fight, than in BWR’s negligent failure to prevent or suppress it. The magnitude of the consequences for Luke cannot be allowed to mask the recklessness of his conduct in becoming involved. On the other, this is offset to a degree by the circumstance that it is a foreseeable consequence of providing insufficient security that patrons might join a fight once it has commenced – a risk that would have been avoided, or at least significantly reduced, had a sufficient level of security been in place. This is a case in which the conditions for the shooting would probably have been averted had BWR exercised due care, but Luke had an ongoing opportunity to avoid danger to himself yet voluntarily engaged in the melee. Weighing those two considerations, I assess Luke’s contributory negligence at 50%.

259. This ground is made out, and Mr Chadwick’s contributory negligence should be assessed as 50%.

Quantum (Appeal ground 9, Mr Chadwick’s cross-appeal)

260. There was no challenge to the assessment of non-economic loss of $46,000 or out of pocket expenses of $7,000. Bucket List and Crossguard contended in ground 9 of the appeal and ground 10 of Crossguard’s cross-appeal that there should be no, or minimal, economic loss.

261. It will be recalled that the primary judge awarded past economic loss of $154,360. That represented half average week wages (of $1,453 gross or $1,135 net) multiplied by the 272 weeks since the accident. To that was added an amount representing superannuation, and a small buffer of $25,000 for future economic loss.

262. The primary judge confronted the fact that the symptoms suffered by the plaintiff varied from time to time, saying at [203] that “there have been periods when the plaintiff’s incapacity was greater and, as I have found, the incapacity is diminishing with time”, but that “[d]oing the best I can to achieve a balance between his capacity and the times when he could not work or produce an income, I think a fair approach would be to allow for half of net average weekly earnings to date. Although this loss is constant, it takes into account fluctuations between a total loss and no loss at all”.

263. By his own cross-appeal, Mr Chadwick sought much more substantial amounts of economic loss, by reference to the case rejected at trial, which (on one basis) included past economic loss of some $1,061,000 and future economic loss of $1,357,000 less a discount. At the hearing, a much more modest contention was advanced, which recognised the force in the proposition that there was no causal connection between the incident in December 2017 and any loss after September 2020. At that time, Mr Chadwick was arrested after suffering a psychotic episode. The primary judge was not satisfied that the assault in December 2017 was a cause of the episode. Mr Chadwick streamed video of his arrest on his social media channel, which was then suspended by Instagram.

264. Nonetheless, Mr Chadwick sought to recover much larger amounts for the period between the assault and September 2020, either $196,000 or $178,000. The former was calculated by reference to anticipated profits from a business supported by his Instagram profile of selling fitness gear under the brand “Rig Fit”. The latter was calculated by the lost opportunity of receiving income for paid third party endorsements. This was calculated at $5,000 per week for 2.75 years, less a 50% discount for this loss being a lost chance and a further discount for tax. The former presupposed that the Rig Fit business, which had hitherto always run at a loss, would generate very substantial profits commencing in the financial year ending 30 June 2019. It was said in that year to make a profit of $619,000, and to repeat that performance subsequently, from which Mr Chadwick acknowledged a very substantial deduction of 75% was to be applied to reflect this being a chance.

265. I do not accept any aspect of the cross-appeal. Mr Chadwick maintained that the incident was highly damaging to the Rig Fit business, because when his followers became aware that he had been beaten up, his 426,000 followers became disenchanted with him. He thereafter altered the material posted to his account, so that it accentuated his recovery from hospital, and the number of followers remained relatively stable for a while.

266. The overwhelmingly likely position which would have obtained if Mr Martin had not struck Mr Chadwick on 22 December 2017 is that Mr Chadwick would have continued attempting to run a loss-making business. I respectfully agree with the scepticism of the primary judge in respect of the claims for economic loss. Mr Garrow had transferred $12,000 to him in October 2017, ostensibly to assist him paying rent for his apartment, but Mr Chadwick used $10,000 of that sum to buy stock for the Rig Fit business, and he kept the other $2,000 for other purposes.

267. However, I am also unpersuaded by ground 9 of Bucket List’s appeal, the gravamen of which was that Mr Chadwick had failed to establish any case whatsoever for economic loss, notwithstanding lasting adverse effects of his injury. The primary judge was in a difficult position, and obliged, as is often the case when the more extreme positions of both sides are rejected, to do the best he could with limited materials: Fink v Fink (1946) 74 CLR 127 at 143; [1946] HCA 54; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 and 125; [1991] HCA 54. However, his Honour had the advantage of seeing Mr Chadwick being cross-examined for a week, the large majority of which related to his capacity to earn money. I am unpersuaded that a basis has been established to intervene with the relatively modest damages for past economic loss which was assessed by the primary judge.

268. The claim for future economic loss is in a different position. The entirety of his Honour’s reasoning is at [206]:

For the future, I think economic loss is very limited. The plaintiff has plans and his post-traumatic stress disorder and psychological symptoms seem to be resolved or close to resolution. I think a very small buffer of $25,000 is appropriate.

269. That reasoning does not satisfy s 13 of the Civil Liability Act, which provides:

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

270. I did not understand Mr Chadwick to seek to defend his Honour’s reasoning. It cannot be defended. It is possible to award damages for future economic loss by way of a “buffer” where it is difficult or impossible to be more precise (for example, Penrith City Council v Parks [2004] NSWCA 201) but that does not obviate the need to comply with s 13. The authorities were collected and applied in Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [273]-[277]. This aspect of ground 9 is made out.

Statutory contribution (Ground 8 of Crossguard’s cross-appeal)

271. Ground 8 of Crossguard’s cross-appeal challenges the primary judge’s determination that each of Bucket List and Crossguard should be equally liable to Mr Chadwick.

272. As previously noted, neither Bucket List nor Crossguard chose to advance much by way of detail as to the contractual relations between them, or the way each shift of Crossguard employees was chosen. It is unclear on the evidence how many of Crossguard employees were RSA marshals, how many were licensed security guards, and how many were both. There was evidence from Mr Champ, general but not implausible, that normally at least one licensed security guard was provided. Crossguard’s sole director, Mr Tux Akindoyeni, gave evidence that:

When requesting security personal, the Bucket List did not differentiate between security guards and RSA marshals. My understanding was that because it wasn’t a nightclub, they were not required to have a certain number of security guards on duty.

273. In Quintano v BW Rose Pty Ltd [2009] NSWSC 446, Brereton J referred to the duty upon a licensee to provide security, which may be delegated, adding at [9] that:

However, the extent to which delegation will discharge the licensee/operator depends on the extent of the delegation, and if it is the licensee/operator who determines the number of security staff and level of security to be provided, there is no delegation of the responsibility to ensure an adequate level of security, and no discharge from that duty [cf Perkins v Redmond, [144]].

274. The present case is an intermediate one. Bucket List delegated the provision of security to Crossguard, but reserved to itself the determination of how many security staff should be present, and left it to Crossguard to determine how many would be RSA marshals and how many would be licensed security guards.

275. Bucket List was operating licensed premises, where there was a need for security who were authorised physically to intervene. In partial satisfaction of that duty, Bucket List retained Crossguard to supply “security”. However, there is nothing to suggest that Bucket List paid any attention to how many of the Crossguard employees were licensed security guards as opposed to RSA marshals. There is nothing to suggest that anyone on the part of Bucket List was concerned when it was apparent that none of the four Crossguard employees who appeared on Friday 22 December 2017 was a licensed security guard.

276. Crossguard for its part must be taken to have appreciated that there was a need for at least one of its employees to be able to intervene if a physical altercation took place. It was at fault for not allocating any licensed security guard on 22 December 2017 to the Bucket List.

277. Crossguard’s determination of who was to be rostered on was the immediate cause of there being no licensed security guard, but there is nothing to suggest that Bucket List placed any great store on whether any licensed security guards were present, and there is certainly nothing to suggest that there was any complaint or attempt to remedy the situation when Bucket List learned that there would be none that night. Further, the licensee had power to intervene. I see no reason to alter the assessment that each of Bucket List and Crossguard contributed equally to the fact that, at 18:08 there was no licensed security guard on the site to prevent the altercation between Messrs Martin, Kerr and Chadwick escalating.

278. This ground is not made out.

Costs (Ground 9 of Crossguard’s cross-appeal)

279. By ground 9 of its cross-appeal, Crossguard challenged the order that it pay Mr Chadwick’s costs. It will be recalled that, in a second judgment, the primary judge departed from the default position that there be no order of costs, notwithstanding that the action fell within the jurisdictional limits of the District Court.

280. It is necessary to re-exercise the discretion as to costs, in light of the partial success of some aspects of the appeal. Crossguard and Bucket List should still have judgments entered against them, but for lesser amounts.

281. Paragraphs 154-159 of Crossguard’s written submissions addressed this ground. Those submissions did not assert any error on the part of the primary judge in the exercise of his discretion. Mr Chadwick’s submissions in response said:

Crossguard does not identify any error at all, much less one within the principles stated under House v The King (1936) 55 CLR 499. The submissions only cite authorities. The primary judge gave reasons for why costs were awarded (Red 107-110) and no issue has been taken with those reasons. That discretion has not miscarried.

282. Crossguard filed written submissions in reply, but did not respond on that ground. Nor did Crossguard advance any oral submissions on this ground.

283. In those circumstances, there is no reason to depart from the unchallenged exercise of discretion by the primary judge. This was a complex hearing, with many issues in play, with three parties represented by senior counsel. The matters which led to the primary judge departing from the default position are not substantially altered by the conclusion that only one of Mr Chadwick’s bases of liability has been upheld. Nor are they altered by the increase in his contributory negligence from 20% to 50%.

Conclusion and orders

284. For those reasons, Bucket List’s appeal and Crossguard’s cross-appeal should be allowed in part, while Mr Chadwick’s cross-appeal must be dismissed. The foregoing may be summarised as follows.

1. No error is established in respect of the findings of duty and risk of harm.

2. Many aspects of the reasoning concerning breach of which Bucket List and Crossguard complain are made out, such that the primary judge’s conclusion that but for the breaches by Bucket List and Crossguard, Mr Martin would have left the premises before Mr Chadwick arrived cannot be upheld.

3. However, it was a breach of duty by both Bucket List and Crossguard not to have at least two licensed security guards on duty on Friday 22 December 2017. But for that breach, Mr Chadwick would not have suffered injury.

4. The assessment of contributory negligence of 20% by the primary judge must be set aside, and should be replaced by a determination that Mr Chadwick’s damages be reduced by 50%.

5. The challenges to past economic loss by all parties fail.

6. The challenge to future economic loss succeeds.

7. The challenges to statutory contribution and the order as to costs fail.

285. The judgments against Bucket List and Crossguard in the amount of $200,706.40 must be set aside and in lieu thereof judgments in the amounts of 50% x $225,883 = $112,941.50 entered, reflecting contributory negligence of 50% and no component of future economic loss. The stay of execution granted by the primary judge must be discharged. There is no reason why Mr Chadwick should not have the benefit of post-judgment interest, from the time the primary judge entered judgment in his favour. That is readily effected by ordering, pursuant to UCPR r 36.11(2), that the judgment made in lieu by this Court be taken to have been entered on 9 March 2023. The orders of the primary judge concerning the cross-claims for statutory contribution should remain unaltered. So too should the orders made by the primary judge as to costs.

286. The result is limited success for all parties. It is possible that the appropriate order for costs in this Court be that each party pay his or its own costs, reflecting that outcome. However, there may be matters of which this Court is not aware, and it may also be that one or more parties wishes to be heard further as to costs. The orders I propose will permit that to occur.

287. The formal orders I propose are as follows:

1. Bucket List’s appeal allowed in part.

2. Crossguard’s cross-appeal allowed in part.

3. Mr Chadwick’s cross-appeal dismissed.

4. Set aside order 1 made on 9 March 2023, namely, “Verdict for the plaintiff against the first and second defendants for $200,706.40” and in lieu thereof enter judgment in favour of the plaintiff against the first and second defendants in the amount of $112,941.50, such judgment to be taken to have been entered on 9 March 2023.

5. Set aside order 2 made on 20 March 2023.

6. The parties to have leave to file and serve agreed orders within 14 days of today, or in the absence of agreement, short submissions not exceeding 3 pages as to the orders for costs of the proceedings in this Court, with each party having leave to file and serve short submissions not exceeding 2 pages in reply within 7 days thereafter.

288. PAYNE JA: I agree with Leeming JA.

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Decision last updated: 09 November 2023