Crown Limited v Hudson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6071 of 2000

CROWN LIMITED (ACN 006 973 262)
	Appellant
v.
FRANK NORMAN HUDSON
	Respondent

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JUDGES:	ORMISTON and BATT, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	18 and 19 March 2002
DATE OF JUDGMENT:	26 March 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 28

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NEGLIGENCE – Criminal assault upon a patron in a casino by another patron resulting in serious injuries – Scope of duty of care owed – Whether breach of duty – Whether breach causally related to injuries sustained.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.W. Kaye, Q.C. and Mr W.R. Middleton	Middletons
For the Respondent	Mr P.H. Clark, S.C. and Mr J.H. Mighell	Berrigan and Doube

ORMISTON, J.A.:

Having had the benefit of reading the reasons of O’Bryan, A.J.A. in draft form, I am of opinion that, subject to the following comments, the appeal should be dismissed for the reasons he gives. It should be understood that the appeal was fought on the basis that the appellant was under a common law duty of care to the respondent to take reasonable care to protect people in the position of the respondent from conduct, including criminal conduct, of third parties.[1] Essentially the appeal was confined to the issues whether the appellant’s response was, in the circumstances, reasonable and, if not, whether its unreasonable response was a cause of the respondent’s injuries.
[1]See Modbury Triangle Shopping Centre Pty. Ltd. v. Anzil (2001) 75 A.L.J.R. 164 at 167 para.[17].

I have been concerned lest what appears to be an error of calculation by the learned trial judge was such as to vitiate his other findings. It was said that his Honour found that a period of 71 seconds elapsed from the time when the alarm sounded in the monitor room until the first security officer arrived on the scene, well beyond the 30 seconds his Honour considered was a reasonable time for those officers to react. But, although the judge did on one occasion use words suggesting that “the alarm was sounded” at 71 seconds before their arrival, his other fact findings were inconsistent with that view, for he had already held that the duress alarm had been activated only “some seconds before 1827 hours and 30 seconds”, i.e. effectively 21 seconds before the security officer came upon the respondent and his assailant. Indeed, his Honour had also earlier held that the “total time elapsed between the first record of the incident on camera at 1826 hours and 40 seconds and the arrival of the first security officer on the scene was some 71 seconds”. Thus, in reaching his ultimate findings, when his Honour came to deal with the 71 second delay in terms of “time that the control room was aware of the incident until it was stopped”, I do not believe that he was describing the period from a time which the duress alarm was sounded, but was talking of a period from a time when the control room could have observed the incident if its attention had been properly directed to the incident by whatever means, including the activation of the duress alarm. The comparison then made was with what might have occurred if an alarm had been sounded during the earlier roulette table incident, clearly some ten or so minutes earlier, which the judge had held did not require the security’s officer’s attendance.

The negligence found was based on the time from the moment fighting in a serious way (as opposed to a scuffle) could be observed near the blackjack table. Though the control or monitor room was not then aware of that incident, the whole of his Honour’s other reasoning on this issue was directed to the inadequacy of the response of the appellant’s total security system, including the roles assigned to the dealers, the supervisors and the “Pit Boss”, being the person having authority to notify the monitoring room.

His Honour, however, was rightly critical of this system which at that time seemed to me, if I may say so, more directed to avoiding any confrontation on the floor of the casino than to protecting the individual customer. There seemed little reason for requiring four steps[2] to be initiated and effectuated before security officers were called to any incident threatening person or property. One may accept that the dealers had to concentrate on their tables, to avert the possibility of their being diverted from protecting the integrity of the games and the funds under their direct control. But even they had duress alarms on their tables, which for some unexplained reason they were never supposed to use. Moreover, then to require the supervisors not to use the same alarms, but in turn to communicate their concerns to the “Pit Boss” in certain limited and bizarre ways before any alarm could be sent to the monitor room seems to have been the genesis of bureaucratic inefficiency. Even then, of course, the monitor room apparently had to focus in on the incident itself, as there seems to have been no oral communication at the same time. Then, having assessed the incident, the person in charge of the monitor room would have to communicate with those on the gaming floors below, including those in the muster room, so that security officers could be directed to the incident. Add to this the fact that no single security officer was assigned at that time to be stationed in any of the four or five major gaming rooms and it is obvious that any delay in the first four steps would be extended, as it was in this case by 20 seconds, at least, so far as the first security officer on the scene was concerned.
[2]Assuming, as seems likely, that a dealer would be the first to observe trouble of this kind.

There seems little doubt in my mind, with that required concatenation of events, that it was well open to the learned judge to find that the overall system was deficient and the appellant was negligent. It was not a question of the time from the moment the duress alarm was sounded, for the system’s efficiency or otherwise seems to have depended on the steps needed to activate that alarm. It is significant to note that the one individual from whom no evidence was available at the trial, whether directly or by statement, was the “Pit Boss”, the person on whom responsibility lay to sound the duress alarm. It is not surprising that any inferences to be drawn as to the reactions of the “Pit Boss” and the supervisor (who was not made available for cross-examination but whose bare statement was put in evidence by the plaintiff) were drawn against the appellant. Whether or not the precise time should be 71 seconds (and arguably it could have been longer, as the start of the “blackjack table” incident has not been observed or timed), the system then in operation meant that no security officer arrived at the scene for over a minute, when the damage had been done.

As to causation, whatever be the position in other circumstances, the delay resulting from the appellant’s system, was here clearly a cause of the respondent’s injuries, or so it was open to find. These were premises on which, having regard to the nature of gaming, disputes were bound to occur from time to time, and the patrons were given more than sufficient opportunity to fuel their grievances from the numerous bars. Perhaps the other patrons should have been aware of those risks but the system seemed to assume that a failure to act might lead to injury.

Doubtless the system now in operation in the appellant’s premises is no longer the same, but I am satisfied that no relevant error in the judge’s reasoning has been demonstrated.

BATT, J.A.:

The only matters in issue in this appeal are breach of duty and causation. The appellant has satisfied me that his Honour erred in including that at least 71 seconds elapsed from the time that the control room was aware of the incident (that is, by the activation of the duress alarm) until it was stopped (that is, until the first security officer arrived). But that is not the end of the matter, for his Honour found breach of duty in other respects.

I turn to those other respects, taking first his Honour’s finding (as I consider it was) that the appellant ought to have permitted dealers and supervisors or at any rate supervisors to use the duress alarm. It is not shown that any significant acceleration of attendance by security officers would have occurred. By significant I mean of at least 14 seconds Accordingly, even if there was a breach of duty on this score, it is not shown to be causative of the damage suffered. But the failures identified by his Honour are, as I understand it, alternatives and, in my view, his Honour was entitled to find – and I think he probably really found (so that no notice of contention is unnecessary) – that the appellant was negligent in allowing too long a time to elapse from when the altercation became sufficiently “nasty” to require intervention or a call for assistance until the time when the first security officer arrived. Even if his Honour did not decide this, I would not treat the appellant as precluded from arguing the point because it is so closely connected with what was decided. It is undoubtedly covered by the pleadings, though in somewhat general terms. With regard to causation, if the appellant’s staff had acted earlier, it is, in my opinion, highly likely that the respondent would not have suffered the final, significant, injury which he did. In the circumstances, I need not consider whether his Honour was correct in finding that the appellant ought reasonably to have designated one or more security officers for the Colosseum Room and that the failure to do so caused or materially contributed to the damage suffered by the respondent.

The foregoing reasons are merely supplementary to those given by O’Bryan, A.J.A., with which I agree. I would dismiss the appeal.

O'BRYAN, A.J.A.:

Issues on Appeal

The appellant is the owner and occupier of premises in Melbourne in which a casino is conducted. The premises are multi-functional and include a gaming room known as the Colosseum Room. The Colosseum Room is 980 square metres (30x35m.) and caters for many gamblers and spectators who play and watch games such as baccarat, roulette, blackjack and poker machines. The Colosseum Room also has a large bar area.

On 2 November 1997 the respondent, a bookmaker, attended the appellant’s premises by invitation for a rehearsal to the “Calling of the Card” to be conducted on Monday 3 November for the Melbourne Cup. He met in the casino an employee and fellow bookmaker, Daniel Crimmins and Paul Barbazza, a friend of Crimmins. Between about 1826 and 1828 hours the respondent was set upon by an aggressive patron who was apparently affected by alcohol to some degree. Several incidents involving violence and the use of foul language occurred over a time interval of several minutes. The final incident resulted in the respondent being struck a blow to the mouth causing damage to his teeth. For present purposes I propose to refer to the aggressive patron as “the assailant” because his correct name is not known.

The respondent brought a County Court action for damages against the appellant pursuant to s.14B Wrongs Act 1958 and common law negligence. The trial commenced before a jury but finished before a judge alone. On 29 June 2000 his Honour delivered extensive written reasons for decision in which he determined that the appellant was negligent and liable to pay damages totalling $50,000. He found no contributory negligence on the part of the respondent.

The appeal attacks the decision on liability. No point is taken in the Notice of Appeal regarding the finding of no contributory negligence, nor is the assessment of damages challenged.

The respondent’s case is that he was an innocent victim of a criminal assault by a patron who was aggressive and partly intoxicated and should have been dealt with by security staff before the final blow to the mouth occurred. In essence, the respondent contended in the court below, and the trial judge found, that unreasonable delay occurred before a member of the appellant’s staff, known as the Pit Boss, sounded a duress alarm which brought security staff to the scene. Another finding of negligence made by the trial judge was that the appellant’s security system required, but did not have, the presence of one or more security staff in the Colosseum Room at all times.

The following extract from the judge’s reasons for decision explains the basis upon which he found negligence. The circumstances underlying these findings will emerge shortly –

“It is my view that the (appellant’s) system for preventing or containing such trouble was inadequate on this night. … I believe that a reasonable system for the (appellant) would have involved a better alarm system, in the way I have outlined above, and at least one, if not two, dedicated security staff in the Colosseum Room.”

These findings were the subject of seven grounds of appeal.

This Court is not concerned with rights of action pursuant to s.14B of the Wrongs Act 1958 because the provisions of Part IIA are concerned with injuries to a person by reason of “the state of the premises”. Nor is the Court concerned with rights of action for breach of statutory duty such as s.153C of the Casino Control Act 1991 or the Liquor Control Act 1987. The Court is concerned only with common law negligence in circumstances where a duty of care admittedly was owed by the appellant to the respondent.

The appeal was directed to three issues:

(i) the scope of the duty owed;
(ii) whether a breach of duty was proved; and
(iii)whether the breach was causally related to the injuries to the mouth suffered by the respondent.

Synopsis of the facts

The respondent, a licensed bookmaker by occupation, attended the casino by invitation on 2 November 1997 for a rehearsal of the Call of the Card on the following day. He did so with a member of his staff, Crimmins. After the rehearsal the respondent and Crimmins proceeded to the Colosseum Room to play blackjack and roulette. An incident occurred between the respondent and the assailant at a roulette table when the assailant gave the respondent a big shove or an elbow. The two men exchanged words and the respondent walked away, as he described it, some 40 metres to join his friends, aware that the assailant was not sober. The assailant was attempting to goad him into a fight using words like “have a go”. The respondent next intended to play Blackjack, a card game played at a semi-circular table at which up to eight players are seated.

Neither the respondent nor Crimmins, who was aware of the incident at the roulette table, made any complaint about the assailant’s behaviour to any member of the appellant’s staff and no independent action was taken against the assailant by staff.

It is common ground between counsel for the parties that the roulette table incident did not call for response by security staff. The incident, however, was a prelude to further acts of violence and aggressive behaviour, both oral and physical, by the assailant towards the respondent.

The respondent joined his friends and played blackjack for five to ten minutes when the assailant returned and again said to the respondent “come on have a go” in an aggressive voice. The respondent said he turned away, but the assailant grabbed him on the shoulder and then punched him and said “just let me have one on the jaw”. Mr Barbazza intervened and seized the assailant in a headlock. During a scuffle they knocked into a couple of Blackjack tables. Mr Barbazza was calling for security. Eventually the assailant freed himself from the headlock. The respondent moved about 25 feet to a position near poker machines. The assailant pursued the respondent and hit him in the face and mouth two or three times causing damage to his teeth. The third incident, which the trial judge called the “poker machine incident”, ended after the blow to the mouth when a member of the security staff, Mr McKinley, arrived at the scene. The assailant was taken in charge by security staff and was eventually removed from the casino.

The Blackjack incident

Because of the importance attached to the “Blackjack incident” by counsel for each party more detail must be given to the incident. Regrettably, a plan of the relevant area of the Colosseum Room tendered as Exhibit B and an identical plan tendered as Exhibit J lacked clarity in detail and places marked by witnesses where important events occurred or where particular persons were stationed were not marked clearly on the plans. It is important in any trial where a plan is used and referred to by witnesses that it be clearly marked for the purposes of a possible appeal. In normal circumstances I would attach a copy of the plan with a legend to my judgment. It is impractical to do so in the present case.

In the area where the second incident occurred were four Blackjack tables, each semi-circular with eight chairs available for players at each table. A dealer is responsible for the games played at his or her table. Mr Paglia was the dealer in pit 12 Table 19 and immediately behind him was Mr Curley, the dealer in pit 12 Table 20. Although the Blackjack tables are referred to as being in pits, the dealer and the table stand at floor level.

The Blackjack incident commenced at or near Table 20 and probably began shortly before 1826.40 hours. The way time can be calculated precisely will be explained later. Mr Curley was not called as a witness, but a statement he made after the incident was tendered by consent and became part of Exhibit H. Mr Curley said that he observed the respondent leaving his table when about two minutes later he heard arguing to the side of his table. When he next observed the assailant:

“He was extremely fired up and was remonstrating with (the respondent). (The assailant) started to throw punches at (the respondent). He stopped then abused him more. Then he had another go. This time (the respondent) retaliated. They exchanged blows for a few seconds when (the respondent’s) friend the male with the blue shirt (identified as Barbazza) grabbed (the assailant) and tried to calm him down. He held him in a sort of bear hug hold whilst (the assailant) was trying to break free. The struggle caused the bin to crash over and to substantially move the two end Blackjack tables in pit 13. The man in the blue shirt then let (the assailant) go, (who) then started to abuse the guy in the blue shirt for grabbing him from behind. When he spotted (the respondent) he proceeded to strike him again. Then security intervened.”

Mr Paglia, the dealer in pit 12, Table 19 was called as a witness by the appellant. He said in evidence that he was dealing when he noticed a bit of talking. He looked up and saw two men in a “bit of a scuffle”. He saw them grab one another in the form of a hug and push each other around. He estimated he had the men under observation for about 7 to 15 seconds. He observed no blows being delivered, but in moving about the men bumped into the tables and an ashtray with a tray on top was knocked over, falling into the pit injuring Mr Paglia’s foot. He said a third man came in and struck one of the men. He estimated the time from when he observed the incident until the arrival of a security officer was 30 to 35 seconds.

Deanna Moorhouse held a position of Gaming Supervisor on 2 November 1997 in BJ12/20. She was not called as a witness but a handwritten statement she made was tendered in evidence by counsel for the respondent and marked as part of Exhibit H. It is necessary to set out the text of her statement for a supervisor had responsibility for monitoring the playing of Blackjack and disturbances in the Colosseum Room and, when necessary, clapping the Pit Boss if assistance from security staff was required. The Pit Boss was expected to activate the duress alarm upon hearing the clap.

For the purposes of easier identification of the three persons Moorhouse refers to in her statement as “gent (A)”, “gent (B)” and “gent (C)” I mention that (A) is the respondent, (B) is the assailant and (C) is Barbazza –

“Small argument broke out between gent (A), OZ 6ft solid build, grey/silver hair and gent (B), euro, 5ft 5 approx, short crop hair.
Gent (B) started abusing gent (A) with Fuck this, Fuck that so that a bystander yelled out and said ‘Come on mate’, gent (B) turned around and said ‘mind your own business’, he then proceeded to point his finger and poke gent (A) in the arm and chest. Gent (A) in the meantime wanted no part of the conversation and started to walk away. Gent (B) got more agitated and followed gent (A).
I could see the situation getting out of hand so proceeded to clap the Pit Boss in Pit 12 for assistance, just as I did this gent (B) swung around and tried to connect a punch to gent (A’s) head. At this stage I’ve put my attention into getting help. When I turned to face the fight another gent (C) stepped in to help break it up, but gent (B) retaliated against him by trying to push him away. Gent (C) got him in a headlock, thus causing the struggle to be pushed into the pit. I then proceeded to push the two gents (B) and (C) out of the pit as they knocked over metal BBQ bin onto the dealer’s foot and breaking glasses onto floor, almost knocked the Atom off BJ12/20. As I was pushing the gents out gent (C) said he was trying to restrain (B) for security. As he (C) pulled (B) away gent (C) yelled in pain. I then turned to see where help was and tell the dealers to finish what they were doing. Then security arrived.”

The reference to “Atom” is, I believe, a reference to a duress alarm at BJ12/20. Ms Moorhouse’s statement omits to explain why she did not press the duress alarm, if this was so. A comment may be made that the failure of the employer to call Ms Moorhouse and the Pit Boss entitled the trial judge to be bold in drawing inferences about the security system as to matters, such as, when security is to be called for they were peculiarly within the employer’s knowledge. See Jones v. Dunkel.[3]
[3](1959) 101 C.L.R. 298.

The respondent described the Blackjack table incident as beginning about five to ten minutes after he moved to the Blackjack table area. He said in evidence that the assailant with whom he had jostled at the Roulette table followed him to the Blackjack table and was very aggressive towards him again, saying: “’Come on, have a go’. Then the assailant sort of grabbed me on the shoulder and just let me have one on the jaw”. This blow did not cause the damage to his teeth. Then Mr Barbazza came to his aid and got the assailant in a head-lock and they scuffled. They also knocked into a couple of Blackjack tables before falling to the ground. Table betting stopped until the fracas was over, according to the respondent. During the scuffle between the assailant and Mr Barbazza, the respondent said that he could hear Barbazza “yelling out for the security to come while he had him in the head lock” but no security staff responded to his calls.

The respondent said he moved a few paces away where a third incident began.

Mr Barbazza also described the Blackjack incident. He recalled the assailant grabbing the respondent on the right shoulder and hitting him with a clenched fist right on the face. He said that the assailant continued to swing punches at the respondent and after about a minute had elapsed and in the absence of any security guard he did “a bit of crowd controlling” by putting the assailant in a head-lock and dragging him away from the respondent. His description of the incident was almost the same as the descriptions provided by the three eye-witnesses, Paglia, Curley and the respondent and by the report of Moorhouse.

The various descriptions of the Blackjack incident related above were accepted by his Honour.

The poker machine incident

The respondent estimated he was about 25 feet away when the scuffle between Mr Barbazza and the assailant ended. Mr Crimmins had proceeded to the bar to buy a glass of beer, the bar being located near to the poker machines where the respondent was when the third incident began. Mr Crimmins said in evidence he observed the assailant “come up and have another go at (the respondent) and belted him in the mouth and then another scuffle occurred”. Then McKinley, a member of the security staff, arrived at the scene. The time was now 1827.51 seconds.

It is unnecessary to detail the evidence of the respondent and Mr Barbazza about the poker machine incident for it was agreed that the blow described by Mr Crimmins caused the main damage to the respondent’s mouth and teeth.

Video film

Not surprisingly, the security system in the casino includes camera surveillance with time clocks at various points. A video film was put together after the incidents finished. It is a film showing extracts from a number of cameras and became Exhibit E. The Court viewed Exhibit E in court and privately at the invitation of the parties.

His Honour described in his reasons what the video showed at various times indicated on the film. Mr Kaye, Q.C., for the appellant, accepted the judge’s description. It is convenient to repeat it -

“At 1826.40 seconds the camera above Table BJ12/20 (shown on Ex. J.) reveals that the scuffle taking place between Barbazza and (the assailant) had already started. The dealer at the table is shown looking over his shoulder in an apprehensive manner.”

Table BJ12/20 was the Blackjack table attended by the dealer Curley. A camera dedicated to table 20 for security and gambling purposes is always in use. This is the earliest view of the Blackjack incident –

“At 1826.52 seconds the camera above Table BJ12/19 (the table directly opposite BJ12/20) comes on and shows (the assailant) and Barbazza fighting. The video clock on this camera, however, cut out at 1826.54 seconds, but the fight between the two men is shown continuing. The camera above Table BJ12/20 shows that at 1827.04 seconds that (the) table was knocked by the men as they fought and a large ashtray was knocked over. It subsequently transpired that it fell on the foot of a dealer and broke bones in his foot.”

Table BJ12/19 was the table attended by the dealer Paglia. This segment of film shows the continuation of the Blackjack incident involving the assailant and Barbazza –

“The camera goes on to record that at 1827.17 seconds the dealer (Paglia) put his chips away. The roving camera starts recording the incident at 1827.30 seconds and thereafter tracks the movements of the (respondent) and shows (the assailant) coming up to him and punching him full in the mouth at 1827.37 seconds. This camera records that the first security officer (who turned out to be Mr Matthew McKinley) arrived at the scene at 1827.51 seconds.”

The security system at the casino included use of a “duress alarm” by a Pit Boss and, possibly, in November 1997 by a supervisor. When the duress alarm is sounded a roving camera is activated automatically. From 1827.30 to 1827.51 the film is from the roving camera.

The evidence did not reveal all the duties of a Pit Boss. The Pit Boss who sounded the duress alarm in response to a clapping signal from the supervisor, Deanna Moorhouse, was not called as a witness and was not identified by name. He was positioned some little distance from pit 12 where the supervisor was located in close proximity to the dealers Paglia and Curley. The supervisor not only had supervisory duties involving the Blackjack table 20 in pit 12 but also was required to deal with conflicts on the floor involving patrons. The evidence is unclear whether the supervisor had within reach a duress alarm and was allowed to activate the alarm should a perceived need arise. But, in any event, a supervisor was trained to clap hands in a particular way to attract the attention of the Pit Boss who was expected to respond promptly by activating the duress alarm. For the purposes of the appeal I shall assume that a minimal reaction period occurred between a clap and activation of the alarm.

Mr Kaye produced for the Court a time chronology which I incorporate in my judgment. It was agreed that at 1826.40 when the video commenced to record the events the picture depicted events occurring during the Blackjack table incident. No film produced recorded the Roulette table incident –
1826.40          Camera on, dealer distracted.
1826.52          Barbazza and the assailant fighting.
1826.54          Clock cuts out but camera still runs.
1826.55          Dealer attracted to something.
1827.01          Barbazza and the assailant scuffling.
1827.04          Blackjack table knocked.
1827.17          Dealer puts chips away.
1827.30          Roving camera activated.
1827.37          Punch in mouth of respondent injuring teeth.
1827.51          First security officer (McKinley) at scene.
Expert evidence re security system

The respondent relied upon a report prepared by Mr Zalewski and oral evidence. Mr Zalewski is a highly qualified and experienced person on public safety in venues such as casinos and nightclubs and security issues. Relevantly, his evidence focused on responses to violent or aggressive behaviour in a gaming room, the timing of intervention and the positioning of security staff in the vicinity of all operational areas to ensure a strategic and immediate removal of aggressive and/or intoxicated persons from the complex.

His evidence in relation to response time focused on the time when the supervisor would have been aware of the incident in its early stages and the need to contact security, if they were not present, for an immediate response. He was shown the video (Ex. E) and asked to note security personnel arriving at 1827.54 (scil. 1827.51). Asked whether there is in his experience any reasonable industry standard for response times in a venue such as a casino he answered: “There’s no industry standard as such. I suppose that there’s an expectation, and the expectation that I’d see as perhaps not being unrealistic would be a 30 second response time”. He added that in a large complex such as the casino “30 seconds would not be an unrealistic response time”.

The witness earlier explained his understanding of “a response time” as “the time that it takes from perhaps the detection of an incident or notification of an incident until the security arrive at that incident”.

His evidence also focused on what he termed “span of control”, meaning the ratio of security staff to the numbers of patrons in a particular venue. In hotels and nightclubs Mr Zalewski considered two crowd controllers for the first 100 patrons and one crowd controller for every 100 thereafter was reasonable.

Mr Zalewski considered that span control was inadequate in the Colosseum Room on the night the respondent was injured because of a deficiency in the system regarding placement of security staff. He opined that two security staff should be present in the Colosseum Room at all times. The appellant’s security system did not have dedicated staff in the Colosseum Room, the staff were “rovers” in the sense that they moved about the premises and at times there might be no security presence in the Colosseum Room.

His Honour found that the appellant was negligent in failing to have a security officer in the Colosseum Room at all times. He considered that “a security officer in the room in an identifiable uniform would have a deterrent effect on persons such as (the assailant), but in their absence he was encouraged to pursue (the respondent) from one part of the room to another. Trouble in the Colosseum Room was not unknown and I would have thought that at least one security officer patrolling around that room would not only deter misbehaviour but could be on the scene very quickly if it broke out.”

Mr Kaye attacked this finding on a number of grounds, but particularly on the ground that the evidence was incapable of proving that the absence of one or two dedicated security staff was causative of the plaintiff’s major injury, in the circumstances.[4]
[4]Ground 6, paragraph (b) of the Grounds of Appeal.

I am of the opinion it is unnecessary for the Court to determine this aspect of the appeal for his Honour also found negligence arising out of the response time. This latter aspect of the case loomed large in the argument and may be regarded as the most important ground of the appeal.[5]
[5]Ground 6, paragraph (a) of the Grounds of Appeal.

Mr Zalewski also opined that there “was a very delayed response to an incident that [he] considered should have been responded to far quicker”. He said: “But even if the security staff were not present, I would expect a mechanism in place where perhaps the other staff who may be in the vicinity of that type of aggressive behaviour to at least send a message off; communicate with the staff.”

An expert witness, Mr Horman, was called for the appellant. He planned and developed the appellant’s Security Department as part of the overall security system.

Mr Horman provided evidence in the form of a report (Ex. 14) concerning the training of security staff, in particular, for circumstances where a patron becomes quarrelsome, argumentative or otherwise behaves in an unacceptable manner: “Then, the normal procedure is that the Security and Service Control room or a Security and Service Officer (other than where such behaviour is observed) is notified and a response requested and directed.”

Mr Horman viewed the video tape of the incident and opined in his report that the appellant did not fail to supervise or adequately supervise the premises. He reported:

“The response time and the number of security personnel who did respond as shown in the footage was more than adequate to deal with the situation which developed. All appropriate procedures and safeguards were followed by Crown personnel.”

In evidence Mr Horman agreed with Mr Mighell, counsel for the respondent, that the appellant relied on both security personnel and other staff detecting unacceptable behaviour and bringing it to the notice of security. He said he would expect pushing and shoving, loud voices, swearing with foul language to be detected and reported. He added:

“I would generally expect the dealer/supervisor/pit boss to, if it’s around a table, to speak to the particular person and if it didn’t immediately desist, then I would expect security to be notified.”

Mr Horman disagreed with the suggestion made by Mr Zalewski that at any one time there should be at least one security officer in the Colosseum Room. He agreed with Mr Zalewski that a response time between an incident occurring, say the outbreak of a fight, and security officers being present of 30 seconds would be a reasonable response time in most circumstances.

Later during cross-examination the meaning of “response time” was identified more precisely. It may mean, response from the time the duress alarm is given or response from the time a fight or fracas is detected by a staff member until a security officer arrives at the scene. Response from the time the duress alarm is given until a security officer arrives ought to be within 30 seconds. Response from the time a fight or fracas is detected by staff until a security officer arrives will take a while longer, Mr Horman said. If I may say so, the answer was fairly obvious because, in the latter case, seconds usually will pass before a discretion is exercised to sound the alarm.

For completeness, reference needs to be made to operations in the Monitor Room where a Shift Supervisor was in charge of the room and of a console. Surveillance operators numbering about five watch eight consoles and each console consists of three monitors under the operation of the surveillance operator. Camera coverage was of almost all the gaming floor and the money handling areas of the casino. On 2 November 1997 when the incidents took place Mr Giles, the Shift Supervisor, had his attention drawn to the incident when a duress alarm was activated by the Pit Boss at pit 12. When the alarm sounded in the monitor room it was audible and a code Bravo radio signal was sent to security staff. A video alarm activates a camera for the area of the duress alarm. The operators then transferred that camera from the alarm monitors onto their own monitors by pushing a button on their console. At the same time as the alarm sounded in the monitor room it also sounded in the security room where security staff may be located. As already indicated, Mr McKinley received a Code Bravo alert after the duress alarm sounded and was at the scene of the third incident at 1827.51, but after the punch in the mouth of the respondent which damaged his teeth had already occurred. Mr Giles did not say at what time the duress alarm sounded in the monitor room, indeed he was not asked to state the time.

Mr McKinley believed he reached the scene approximately 20 seconds after he received a “Code Bravo at pit 12” radio signal.

The video evidence shows that the roving camera was activated at 1827.30 and the video recorded Mr McKinley at the scene at 1827.51, 21 seconds after the roving camera was activated, but 14 seconds after the last mouth punch which his Honour found caused the most damage.

In his reasons the trial judge said:

“I accept that the duress alarm was activated some seconds before 1827 hours and 30 seconds when the camera that he (Mr Giles) was operating zooms in on the plaintiff.”

No challenge was made by Mr Kaye to this finding.

Error in findings

His Honour reviewed the evidence of several security staff, McKinley, Stone, Rizzo and Peat and noted that with the exception of Peat who reached the scene some 30 to 45 seconds after the alarm was sounded the response time given by the witnesses was inside 30 seconds. His Honour found the times given were estimates only and “were wildly inaccurate given that the alarm was sounded at least seventy-one seconds before Mr McKinley arrived on the scene”. Later the judge said: “Even if I am wrong about a security presence being necessary at the time of the roulette table incident there is no excuse, in my view, for the delay in the security officers attending the incident at the poker machine. As I have said, there is at least some 71 seconds from the time that the control room was aware of this incident until it was stopped, and on the defendant’s own evidence a 30 second response was reasonable and as Mr Horman said if the response time went out to sixty seconds he would want to know why.

Mr Kaye submitted that his Honour’s review of the evidence produced error in the calculation of 71 seconds as the response time to the alarm and his finding that estimates by security staff “were wildly inaccurate” was wrong.

Mr Clark did not argue the contrary.

If the duress alarm was activated at 1827.30, as the video evidence suggests, or some seconds before 1827.30, allowing a brief interval for reaction time before the roving camera was activated at 1827.30, Mr McKinley did not take 71 seconds to arrive on the scene. As the video clock shows he arrived 21 seconds after the roving camera activated. The calculation of 71 seconds is arrived by using 1826.40 as the commencement time and 1827.51 as the finish time. The first time shown on the video clock is 1826.40 when a scuffle is shown at the Blackjack table and the dealer is distracted. It was, therefore, impermissible for his Honour to find that the alarm was sounded at least 71 seconds before Mr McKinley arrived on the scene, or that the control room was aware of the incident for 71 seconds.

Grounds of appeal

It is necessary now to consider the grounds of appeal. Ground 1A is the substantial ground of appeal: “That the trial judge was wrong in finding there was a breach of duty by the appellant.” I shall deal with ground 1A shortly. Grounds 2 and 3 are directed to the 71 seconds error. Ground 2 asserts that the trial judge was wrong in finding as a fact that the response time to the duress alarm and the arrival of McKinley at the scene was 71 seconds. Ground 3 asserts that the trial judge was wrong in finding as a fact that the control room was aware of the incident for 71 seconds, being the time between activation of the duress alarm and the arrival of McKinley at the scene.

These grounds are made out but they are not fatal to the respondent’s case. Mr Clark frankly acknowledged error, but submitted that the error did not vitiate the principal finding by his Honour that there was breach of duty by the appellant in not having an adequate security system which would have prevented the final assault on the respondent. I agree that if the principal finding was open grounds 2 and 3 are not fatal.

Grounds 4 and 5 may be considered together –

“4.That the trial judge having found –
(i) that the duress alarm was activated some seconds before 1827 hours and 30 seconds;
(ii)that a response time to the duress alarm of 30 seconds was reasonable in the circumstances;
(iii)that the respondent (plaintiff) was struck in the jaw at 1827 hours and 37 seconds;
(iv)that the first security officer employed by the appellant (defendant) arrived at the scene at 1827 hours and 51 seconds –

was wrong in finding that such a response time was unreasonable in the circumstances.
5.That the trial judge’s finding that there was a breach of duty on the part of the appellant (defendant) was against the evidence and against the weight of the evidence, particularly the expert evidence of Mr W. Horman and Mr T. Zalewski called by the appellant (defendant) and the respondent (plaintiff) respectively.”

The assumption made in these grounds is that the trial judge found negligence upon the basis that the response time of approximately 21 seconds from the duress alarm being pressed by the Pit Boss, until security staff reached the scene was unreasonable. Mr Kaye submitted that such a finding was against the evidence and the weight of the evidence given by both experts, Horman and Zalewski. If McKinley arrived at the scene at 1827.51, about 21 seconds after the duress alarm was activated, it would have been too late to prevent the injury to the respondent’s mouth which occurred at 1827.37. Mr Kaye further submitted that the trial judge appeared to have concluded that 30 seconds was a reasonable response time from the time the appellant’s monitoring room was notified until security staff attended the scene of the incident.

Mr Clark for the respondent submitted that the trial judge found negligence upon the basis that the supervisor or the dealer acted unreasonably in not activating the duress alarm earlier than 1827.30. He submitted that the respondent’s case was not based upon response time after the duress alarm was sounded, but was based upon unreasonable delay before the supervisor activated the duress alarm. He submitted that the trial judge understood the respondent’s claim to be that the final incident could have been avoided had the appellant’s security measures been adequate and that in the circumstances the appellant’s duty of care to the respondent was breached by the appellant’s failure to provide adequate security at its premises.[6]
[6]Judgment at p.9.

I consider that a fair reading of the trial judge’s reasons supports Mr Clark’s argument that his Honour did not find unreasonable delay causative of the respondent’s major mouth injury occurred between 1827.30 and 1827.51. His Honour was concerned about delay which he considered began at about 1826.40 and was affected by the security system not giving authority to the dealer (Paglia) or the supervisor (Moorhouse) to operate the duress alarm. Although his Honour did not felicitously explain how he calculated a delay of 71 seconds he said: “There is no excuse in my view, for the delay in the security officers attending the incident at the poker machine.”[7] Later, his Honour stated it was his view that the defendant’s system for preventing or containing the trouble was inadequate on 2 November 1997. He believed that a reasonable system for the appellant would have involved a better alarm system.
[7]Judgment at p.37.

Support for his Honour’s view can be found in the evidence of Zalewski summarised in paragraphs [35] and [36] and the statement of Moorhouse set out in paragraph [19].

I consider, therefore, that grounds 4 and 5 fail.

Ground 6, which I shall set out in full, is concerned with two findings of breach of duty by the trial judge. The first is in sub-paragraph (a), the second is in sub-paragraph (b).

“That the trial judge having found:
(i)that the appellant (defendant) clearly owed the respondent (plaintiff) a duty of care in the circumstances;
(ii)that the appellant (defendant) was in breach of that duty because of:
(a)the failure of its supervisor to activate the duress alarm or atom caused an inevitable delay in the security staff being notified;
(b)the failure to have one or more roving security officers in the Colosseum Room –

in determining that these findings constituted a breach of duty on the part of the appellant (defendant) failed to take into account or properly into account whether breach of duty could be regarded as having caused or materially contributed to the damage to the respondent (plaintiff) and whether the performance of the duty or duties would have averted the harm in any event.”

The trial judge found, and Mr Kaye did not challenge the finding, that it was during the final incident (the poker machine incident) that the greatest damage was done to the respondent. This occurred at 1827.37, seven seconds after the roving camera activated and 14 seconds before McKinley arrived.

His Honour said in his reasons in response to counsel’s argument that he was not persuaded the appellant’s inadequate response at the time of the Blackjack table incident would have had no bearing on the outcome of the assault by the assailant on the respondent at the poker machine. He said:

“In my view an adequate response by the (appellant) to (the assailant’s) behaviour would, in all likelihood, have prevented (the assailant’s) final assault on the (respondent).”

Insofar as Mr Kaye argued that the absence of an earlier response to the Blackjack table incident could not be regarded as having caused or materially contributed to the damage to the respondent or would have averted the harm, in any event I am satisfied that his Honour’s finding in that regard was justified. Had security been alerted by the alarm no later than 1826.50 when Barbazza and the assailant were seen fighting and security had arrived at the scene within 30 seconds, at the latest, say, 1827.22, it is very unlikely indeed that the respondent’s mouth would have been damaged.

His Honour expressed concern that the security system at the casino in November 1997 did not permit a dealer at a blackjack table to operate the duress alarm. But he considered the failure of the dealer to operate the duress alarm was of no great moment given that the supervisor Moorhouse was immediately behind him and witnessed the whole incident. His Honour also expressed concern that the supervisor lacked authority to operate the duress alarm but had to signal the Pit Boss by a clap, with some inevitable delay. His Honour found that the appellant’s system for preventing or containing trouble was inadequate on the night and a reasonable system would have involved a better alarm system. As I earlier said such a finding was supported by Mr Zalewski’s evidence that there was a very delayed response to an incident that he considered should have been responded to earlier.

Mr Kaye submitted that this finding of breach is not reflected in the pleadings. I do not agree. Particular (c) of negligence pleaded: Failing to supervise adequately the said premises. Particulars (o): Failing to provide the plaintiff with any or any adequate assistance, and (q): Failing to monitor the conduct of patrons within the said premises. Together they were sufficient to raise as an issue a better alarm system.

Although some confusion existed during the trial about the meaning of “response time” in terms of whether time is measured from the moment the duress alarm is activated or from the time of reasonable response by staff to an incident, in most circumstances there will be an insignificant difference. In the present case criticism was directed to when the alarm should have been activated by either the supervisor, or the Pit Boss.

It is my view that his Honour considered response time could be measured from about 1826.40 which was shortly after the Blackjack incident was visible on camera to Paglia and Moorhouse.

Mr Clark submitted that delay in attendance began when the Blackjack table incident developed into a serious or threatening fracas. This would have been, presumably, at 1826.52 when Barbazza had the assailant in a headlock and was calling for security. Ms Moorhouse allowed a further 38 seconds to elapse before she clapped the Pit Boss. Had she clapped at 1826.40, as the respondent contended she should have done as a reasonable supervisor, the incident might have concluded at 1827.10.

Returning now to ground 1A, I have no doubt the finding of breach of duty because the supervisor or the Pit Boss did not activate the duress alarm sooner was justified by the evidence. In this area of the case there was room for different opinions, but the trial judge was entitled, in my view, to find a breach of duty based on the evidence before him. The finding so made led inevitably to the judge being satisfied that the breach caused or materially contributed to the damage to the respondent’s mouth.

In my view ground 6 paragraph (a) and ground 1A fail. I say nothing further about paragraph (b).

Ground 7 was not pursued.

I consider the appeal should be dismissed with costs.

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Crown Limited v Hudson [2002] VSCA 28

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[2002] VSCA 28

26 March 2002