Haris v Bulldogs Rugby League Club

NEW SOUTH WALES COURT OF APPEAL

CITATION: Haris v Bulldogs Rugby League Club [2006] NSWCA 53

FILE NUMBER(S):
40998/04

HEARING DATE(S): 15 November 2005

DECISION DATE: 17/03/2006

PARTIES:
Samer HARIS (Appellant)
BULLDOGS RUGBY LEAGUE CLUB LIMITED (Respondent)

JUDGMENT OF: Mason P Santow JA Ipp JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1314/03

LOWER COURT JUDICIAL OFFICER: Truss DCJ

COUNSEL:
M J CRANITCH, SC/ A JAMIESON (Appellant)
R W SETON, SC/ M NEWTON (Respondent)

SOLICITORS:
Zerrin Jamieson (Appellant)
Ebsworth & Ebsworth (Respondent)

CATCHWORDS:
NEGLIGENCE – appellant spectator injured by firework while attending football match at stadium occupied by respondent – whether reasonable care taken to avoid a foreseeable risk of injury – whether additional measures should have been taken to discharge reasonable care in the circumstances – Whether sufficient reasons given and difference between adequacy of reasons and sufficiency of reasons – whether precautions taken were unnecessary when dealing with a reasonable person test under s5B Civil Liability Act – whether damages awarded inadequate.

LEGISLATION CITED:
Civil Liability Act 2002 s5B, s12, s13

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40998/04
DC 1314/03
MASON P
SANTOW JA
IPP JA
17 MARCH 2006

Samer HARIS v BULLDOGS RUGBY LEAGUE CLUB LIMITED

Judgment

MASON P: I agree with Santow JA.
SANTOW JA:
INTRODUCTION
The appellant, Samer Haris (“Mr Haris”), was injured by a firework while attending a football match as a spectator at a stadium occupied by the respondent, Bulldogs Rugby League Club Ltd (“the Bulldogs”). The appellant brought a claim in negligence against the respondent, who conceded that it owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury. The central question in this appeal is the steps that should be taken to discharge that duty, with the emphasis on what would be reasonable in the circumstances.
The trial judge, Truss DCJ, found that while the respondent did indeed owe such a duty to the appellant, it had not breached that duty. The judge found that, although the risk was both foreseeable and significant, the respondent had taken reasonable precautions, in terms of the security measures taken, to minimise the possibility that the risk would be realised.
The trial judge was not persuaded by the appellant’s submission that the respondent’s failure to take additional measures, such as increasing the number of security guards, reducing the density of the crowd, stopping the game or using bomb detection dogs, constituted a breach of duty. The trial judge found to be sufficient the steps that actually were taken. These steps took place both in advance of the game’s commencement by way of bag searches and during the game.
Although the trial judge found in favour of the respondent, at the request of the parties she went on to assess damages.
The appellant challenges the decision of Truss DCJ both as to breach and as to quantum. As to breach, the appellant challenges the trial judge’s findings in relation to:
(a)Whether bag searches were being conducted at the entrance to the stadium, after the commencement of the game;
(b)The power of security officers to conduct body searches;
(c)The use of sniffer dogs;
(d)Whether a customer safety plan was in force in 2002;
(e)Whether reducing crowd density would have enabled the respondent to identify offenders in the crowd;
(f)Whether the failure of the CEO of the respondent to address the crowd a second time constituted a breach of duty;
(g)Whether the failure of the respondent to issue loudspeaker messages constituted a breach of duty;
(h)Whether stopping the game and/or redirecting fans to other parts of the ground would have been of assistance; and
(i)Whether a reasonable person in the position of the respondent would have taken the additional measures proposed by the appellant, pursuant to s5B Civil Liability Act 2002.
As the grounds of appeal, summarised below indicate, the appellant challenges the trial judge’s finding on grounds which also include a claimed lack of reasons in the instances noted. As I explain in relation to those specific findings, much if not all of the attack on sufficiency of reasons is really an attack on the fact-finding process and inferences therefrom. It is indeed made possible by the fact that the actual process of reasoning is sufficiently revealed. On this, compare Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [129]-[130]:
“[129]… When it is said that a judge did not give "sufficient" reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision". To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
[130]In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.” [omitting footnotes]
Thus the grounds of appeal in relation to the four issues noted below are as follows:
ISSUE 1: Evidence as to Security Arrangements at the Venue
A. Evidence of Bag Searches
Ground 1: The judge gave no or no adequate reasons for (apparently) not accepting the evidence of the appellant and his witness, Ms Rangihuna, that they were not subjected to a search on entry.
Ground 2: The judge failed to identify the “totality of the evidence” which was relevant to not accepting the appellant or Ms Rangihuna.
Ground 3: The judge failed to consider whether an adverse inference may be drawn from the respondent’s failure to call evidence from the security guards on duty.
B. Evidence as to Body Searches
Ground 4: The judge failed to give reasons as to why she accepted that the security officers did not have the power to conduct body searches etc in light of the evidence of Chief Inspector Ashton.
C. Evidence as to Sniffer Dogs
Ground 9: The judge failed to give due weight to the largely unchallenged evidence of Mr Smith on the use of sniffer dogs.
D. Customer Safety Plan
Ground 10: The judge erred in finding that the 2004 Customer Safety Procedures Plan was not in force as at 2002
ISSUE 2: Respondent’s response to earlier flares/fireworks
Ground 5: The judge failed to give reasons for rejecting the proposition that reducing crowd density after the first release of fireworks into the crowd would have enabled the respondent to identify offenders in the crowd.
Ground 6: The judge failed to give reasons as to why she did not give any weight to the possibility of CEO of the respondent approaching the crowd for a second time after the release of fireworks [in relation to] breach of duty by the respondent
Ground 7: The judge failed to give reasons for her failure to be persuaded as to further loudspeaker messages not constituting a breach of duty of care
Ground 8: The judge erred in finding that stopping the game and/or redirecting fans to other parts of he ground would not have been of assistance, and misconstrued the police evidence in this regard.
ISSUE 3: Section 5B Civil Liability Act
Ground 11: The judge erred in finding that the precautions taken by the respondent in a situation where there was a substantial risk of injury were unnecessary when dealing with a reasonable person test under s5B Civil Liability Act.
ISSUE 4: Damages
Ground 12: The damages awarded were inadequate.
The appellant also contends that the damages assessed were inadequate.
SALIENT FACTS
On 6 September 2002, the appellant, Samer Haris, attended a football game at the Sydney Showground at Homebush as a spectator. The venue was occupied by the respondent.
The game commenced at about 7.30pm. The appellant entered the stadium about five or ten minutes after the game had commenced with his friend, Queenie Rangihuna, who gave evidence at trial.
Once inside the stadium, the appellant encountered his cousin Fayej Faraj, and Mr Faraj’s friend, Mustafa (Steve) Elrich, both of whom also gave evidence at trial. The appellant watched the game with Mr Faraj and Mr Elrich from a terraced area known as Bulldog Hill. Throughout the game, the appellant and his friends were either standing, sitting or resting upon a railing at the back of that area.
The evidence established that whilst the Hill was crowded, it was possible to move about freely.
The evidence established that one flare was set off at about 7pm, before the game commenced, another flare was set off at about 8.18pm, and a firework was set off at about 8.32pm; see also Primary Judgment, below.
At about 9.10pm, about ten minutes before the game ended, the appellant was struck in the left eye by a firework. The trial at first instance proceeded on the basis that the origin of the firework was of no significance.
As a result of the accident, the appellant lost sight in his left eye.
As to the security arrangements in force at the stadium in 2002, the respondent had a contract with WorkForce International (“WorkForce”) to provide security officers.
On 6 September 2002, there were between 80 and 90 WorkForce staff in attendance at the stadium. These included three WorkForce employees who gave evidence at trial: Mr Wairu, the security co-ordinator for the stadium; Mr York, the business development officer; and Ms Coulter, a security officer and supervisor, who was usually stationed at the Gate A admission for Bulldog Hill for most games.
There were also 37 police present inside the stadium, two mounted police on the exterior and eight transit police also on the exterior (primarily at the railway station). Chief Inspector Ashton was Duty Commander at the game and gave evidence at trial.
The respondent met regularly with WorkForce, the police and the Royal Agricultural Society, from whom it leased the venue, specifically in the week leading up to a game. They also met at the end of every game to discuss any events which had occurred on the night.
PRIMARY JUDGMENT
Liability
The respondent conceded that it was the occupier of the venue, which it leased from the Royal Agricultural Society, and that it was responsible for security at the premises.
The respondent did not dispute that it owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury.
Foreseeability of Risk
There was evidence that flares and fireworks had gone off at previous games, though no-one had been injured. The appellant was not required to establish that flares or fireworks had previously injured people.
There was evidence that there were three or four buckets of sand below Bulldog Hill for extinguishing flares and fireworks.
The trial judge was satisfied that fireworks had the potential to cause injury, especially in a crowded situation and, rightly, in my opinion, rejected the respondent’s submission that the risk of fireworks at a game is not tantamount to a risk of injury.
It was clear from the evidence that two flares and a firework were set off (just before 7pm, at about 8.18pm and at 8.32pm respectively). The trial judge considered it more probable than not that in addition to these, there may have been one or two more flares or fireworks activated on Bulldog Hill. The trial judge did not consider the security logs necessarily to be comprehensive.
On the basis of the evidence of flares and fireworks at previous games, combined with the uncontroverted evidence of the flare at 8.18pm and the firework at 8.32pm, the trial judge was satisfied that not only was the risk of injury foreseeable in that it was a risk within the respondent’s knowledge, but also that such risk was not insignificant.
Application of the Modbury Principles (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254)
The trial judge did not consider it necessary to consider in this case whether to recognise an exception to Modbury where there is “a high level of recurrent predictable criminal behaviour”. This was because there was clearly a contractual assumption of responsibility for security. The trial judge concluded that the Modbury principles did not apply to this case.
Security Searches at Point of Entry
Messrs Faraj and Elrich, who arrived at the game before it started, said that they saw three or four inspection tables and bag searches being conducted.
The appellant’s evidence was that he did not observe any bag searches when he entered the stadium five or ten minutes after the game had started. His friend, Ms Rangihuna, gave similar evidence and also said that her bag was not searched.
While the trial judge accepted that the respondent did not call any witnesses who specifically confirmed that bags were still being searched after the game commenced, having regard to the totality of the evidence, she was unable to accept the evidence of the appellant and Ms Rangihuna on this issue.
The trial judge rejected the appellant’s submission that the evidence of Ms Coulter (a security supervisor employed by WorkForce, who worked at most games), which was based on procedures generally rather than specific recollection of that game, was not strong enough to warrant rejection of the appellant’s and Ms Rangihuna’s evidence.
Having regard to the elaborate security arrangements in force and given the expectation that this was to be an emotional game, the trial judge found it inconceivable that security staff would have searched all bags to the point of commencement of the game, then ceased while patrons were still entering.
Failure to observe that appellant was in position of peril and failure to inspect Bulldog Hill to determine whether free of fireworks
The trial judge was satisfied that the respondent’s security staff had responded reasonably to the flare set off at about 8.18pm and the firework set off at 8.32pm. Mr Wairu, the security co-ordinator for the stadium, gave evidence that if something like a firework went off, staff would normally “hang off to see if they’ll do it again”, being otherwise unable to identify the culprit. The trial judge considered that unless a culprit had been identified, it was difficult to contemplate what positive action could have been taken.
Exhibit O (the running sheet from the CCTV at the stadium) established that shortly after 8.32pm steps were being taken to identify a possible offender in a group of six.
The trial judge was not persuaded that the presence of any more security guards would necessarily have led to identification of the culprit/s. On this issue the judge had particular regard to the evidence of Mr York (the business development officer for WorkForce, who attended this game). He said that fans tend to get into a close group, someone ignites the flare and drops it on the ground, then they disperse, making it difficult to pinpoint anyone in the group.
Bulldog Hill was closed at around 7.43pm to ensure there was not an overload of patrons and the trial judge was not persuaded that reducing crowd density following the flare and firework would have been effective in preventing the discharge of further fireworks.
The trial judge was not persuaded that the respondent breached its duty of care to the appellant by its failure to:
(a)Have the CEO of the Bulldogs, Steve Mortimer, who had addressed the crowd at the beginning of the game in an effort to keep everything under control, repeat his plea to the crowd after the flare and firework were discharged;
(b)Emit a loudspeaker message to spectators to the effect that they should desist from lighting flares or fireworks and to warn them that security had not been able to ascertain whether there were any further dangerous items in the crowd.
Failure to stop game and/or remove patrons from Bulldog Hill
There was some dispute as to whether the respondent had the power to stop the game. In any event, the trial judge was not persuaded that stopping the game would have been an appropriate course in the circumstances. The trial judge did not consider that this would have assisted security staff and police in identifying any persons who possessed flares or fireworks. This was especially since security guards did not have the right to search people and although the police did, there were guidelines to be observed, such as having reasonable cause.
The trial judge did not consider that redirecting fans to other parts of the ground would be likely to reduce the risk of injury.
Failure to have trained dogs and handlers to detect the fireworks
It was not shown that Mr Smith, a security expert called by the appellant, had any expertise with respect to the use of privately owned bomb detection dogs.
Chief Inspector Ashton gave evidence that in recent times the police have trained dogs in firearms and explosives, although this had only recently commenced.
On the basis of the evidence of Mr Smith and Chief Inspector Ashton, the trial judge was not persuaded that there is a general availability of dogs which would be capable of performing the role and producing the results suggested by Mr Smith (detecting explosives).
Other alleged breaches
The trial judge was not satisfied that a safety plan entitled “Customer Safety Procedures Bulldogs Events 2004” was in force as at September 2002 and therefore did not consider it necessary to consider whether there were any breaches of that plan.
The trial judge declined to draw a Jones v Dunkel inference from the respondent’s failure to call Mr Steve Price (the Bulldogs’ captain). It was unclear what evidence he would have given. Nor did the trial judge draw a Jones v Dunkel inference from the respondent’s failure to call security guards who were positioned on Bulldog Hill.
Civil Liability Act
Section 5B Civil Liability Act 2002 provides as follows:
5B      General principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a)      the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)      the risk was not insignificant, and
(c)      in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)      the probability that the harm would occur if care were not taken,
(b)      the likely seriousness of the harm,
(c)      the burden of taking precautions to avoid the risk of harm,
(d)      the social utility of the activity that creates the risk of harm.
The trial judge did not consider that a reasonable person in the respondent’s position would have taken the precautions suggested by the appellant in addition to the significant precautions already taken.
Pursuant to s5B(2), the trial judge considered the social utility of the activity which creates the risk of harm. She found that statistics suggested that attending football matches serves a useful social purpose for a considerable number of people.

The trial judge was not persuaded that the respondent was in breach of the duty of care it owed to the appellant and entered a verdict for the respondent.
Quantum
The parties requested that in the event of a verdict for the respondent, the court nevertheless assess damages. This the trial judge did.
Non-economic loss
There was little dispute on the evidence as to the nature and effect of the injury. The trial judge took into account the appellant’s loss of sight in his left eye, the pain he has suffered and his difficulty in driving, and assessed non-economic loss at 30% of a most extreme case, which she calculated at $88,500.
Out of Pocket Expenses
Past out of pocket expenses were agreed at $2,297.
The trial judge allowed $2,500 for the possibility that the appellant would in the future require enucleation (surgical removal of the eye).
The trial judge allowed for ongoing occasional visits to the GP and an ophthalmologist, as well the cost of eye drops. Quantification was difficult on the evidence before her, but she allowed a cushion of $15,000.
The trial judge made no allowance for ongoing visits to Dr Chaudhary, the psychiatrist to whom the appellant was referred in April 2003 by his GP, since now that the appellant was in employment the trial judge was not satisfied that there was any benefit to be gained from such treatment.
Past Economic Loss
The trial judge found that the appellant was totally incapacitated for the first six months after the incident and that for the next twelve months his capacity was significantly reduced.
She found that since March 2003 (six months after the incident) the appellant has had and will always have a restricted work capacity.
Having regard to ss12 and 13 Civil Liability Act, the judge determined past economic loss as follows:
(a)6 September 2002 (the date of the accident) – 5 March 2003: 26 weeks at $500/week (being the average weekly earnings of males in New South Wales [$742] discounted by a third to reflect the appellant’s past work history and periods of unemployment) - $13,000;
(b)6 March 2003 – 5 March 2004: one year at $400/week, based upon $500/week less an ability to earn estimated at $100/week – [$20,800];
(c)6 March 2004 to date: 19 weeks at $180/week (being $500 less average actual earnings at $338) - $3,420;
(d)Total: $37,220.
Future Economic Loss
The trial judge considered it appropriate to determine future economic loss on the basis of an amount of $150/week, being $742 (average weekly earnings of males in New South Wales) less $600 (being an assessment of the appellant’s ability to earn in his reduced capacity). The total amount was calculated at $120,500.
The judge allowed $14,195 for lost superannuation.
The total damages assessed by the trial judge amounted to $280,212.
DISPOSITION
The evidence of bag searches – grounds 1 to 3
The appellant’s contention is that the trial judge did not give any reasons for not accepting a witness called by the appellant, Ms Rangihuna, who gave evidence that upon entering the respondent’s premises, her bag was not searched, the appellant submitting that searches would have disclosed the presence of fireworks. The appellant himself also gave evidence that when entering the premises with Ms Rangihuna there was no bag searching being carried out by the respondent or its servants or agents.
The appellant’s contention is that the trial judge did not record the reasons of evidence which led her to the conclusion that the witness was “mistaken” (Judgment, Red, 24). Nor, it is said, does reference to the “totality of the evidence” in any way explain why the witness was mistaken about what had or had not occurred as to searching at the time she entered the respondent’s premises. It is said that no other witness gave evidence of being at the point of entry at that relevant time. Essentially, the appellant’s argument amounts to the trial judge relying upon “only a presumption of the continuance of searching which occurred on entry, rather than specific evidence from a witness which … could be taken into account to determine whether the witness was ‘mistaken’”.
Before turning to the evidence in more detail, I should quote exactly what the trial judge did say on the matter:
“The defendant’s witnesses said that the bag searches continued for as long as patrons were being admitted to the game. They generally started with two tables, increasing to at least four for the hour before the commencement of the main game when the majority of patrons entered, with the numbers reducing as the crowds dwindled.
Both Messrs Faraj [friend of Steve Elrich who attended the football game with Mr Elrich and the appellant] and Elriq [sic], who arrived at the game before it started and earlier than the plaintiff and Ms Rangihuna, said they saw three or four inspection tables and bag searches being conducted. The plaintiff and Ms Rangihuna arrived about five or ten minutes after the game had started. The plaintiff said that after purchasing his ticket he did not observe any bag searches. Ms Rangihuna gave similar evidence and also said that the bag she was carrying was not searched.
Whilst I accept that the defendant did not call any witnesses who confirmed that on the particular night bags were still being searched after the game commenced and despite the submissions by counsel for the plaintiff, having regard to the totality of the evidence, I am unable to accept the evidence of the plaintiff and Ms Rangihuna on this issue. I do not consider that they have told deliberate untruths but rather I consider they were mistaken. I am not persuaded that in the interval between Messrs Faraj and Elrich entering the ground on the one hand and the plaintiff and Ms Rangihuna on the other, that the defendant’s security system on the gate had either broken down completely or ceased, despite the fact that by then the game had been in progress for about ten minutes.
Whilst I accept that Ms Coulter’s evidence [security officer with Workforce present at Gate A admission area from where the appellant entered] was limited to the procedures generally at Gate A and that she did not have any specific recollection of that particular game, I reject the submission that her evidence was not sufficiently strong to warrant rejection of the plaintiff’s evidence [and that of] Ms Rangihuna.
Having regard to the elaborate security arrangements in force and given the expectation that this was to be an emotional game, I find it inconceivable that security staff would have searched all bags to about the point of commencement of the game, then ceased while patrons were still entering.”
Clearly enough the trial judge found cogent the fact that the appellant and Mr Rangihuna arrived only about five or ten minutes after the game had started. Moreover, there was evidence, albeit only as to practice rather than specific recollection, from a WorkForce security officer, Ms Coulter. Her evidence supported the commonsense conclusion that it would be unlikely that the security staff would go, on the one hand, to the trouble of searching all bags to the point of commencement of the game and then cease shortly thereafter while patrons were still entering. A presumption of continuance in searching was certainly open. That presumption does not depend upon the absence of unequivocal evidence to displace it. It is rather, as Dixon J put it in Axon v Axon (1937) 59 CLR 395 at 405 “but a deduction from probabilities and must always depend on the accompanying facts”.
Turning to the probabilities and accompanying facts, it should be recognised that while the trial judge did not find any deliberate untruth, she did not on other matters accept Ms Rangihuna as an accurate witness. Thus her evidence was that during the game fire crackers were thrown about every ten minutes with three or four thrown onto the field. That evidence the trial judge declined to accept “having regard to the combined evidence of all the other witnesses on this issue”. The trial judge described her evidence, with some evident scepticism, as “considerably more dramatic”; Judgment Red, 19. Therefore, while the trial judge did not elaborate further on the credit of the appellant or Ms Rangihuna, clearly enough the trial judge was in a position to determine these matters based on her observation of the witnesses, an advantage denied to this Court.
There is indeed some suggestion of exaggeration in Ms Rangihuna’s actual evidence on the bag searching itself. The suggestion of exaggeration comes when the following question and answer occurred:
Q.On the prior occasions when you had entered the showground of that year, had you seen anyone searching bags on entry?
A.The only time I’ve ever had my bag searched at a football game was on a semi final with the New Zealand Warriors and I think it was the Cronulla Sharks. It was a semi final. [emphasis added]
She subsequently denied that she had ever seen searching tables or security at the Sydney Showground; see Black, 168.12-.52 and see also Black, 173.7-.17 where she denied seeing any security, only workers both coming up to where the tickets were purchased and on going through the barcode area.
Her evidence was therefore treated with some scepticism that she was “carrying a bag” and that “no-one searched my bag”; Black, 162.35-.40. Likewise her evidence that she did not see other people walking into that area having their bags checked at all; Black, 162.42-.46. She further denied seeing tables with security officers asking people to put their bags down to be searched in that area, giving as her reason “maybe because I was late, I don’t know, but I didn’t see any”; Black, 162.48-.52.
Turning to Ms Coulter, the WorkForce security officer, her evidence was as follows:
Q.Can I take you to the evidence you gave about being at the gate. Again you don’t have a specific recollection of the events at this game, you are speaking in terms of what you generally would do at the games; is that a fair comment?
A.That’s correct.
Q.So when you said to Mr Newton after things died down a bit, within ten minutes or twenty minutes of the game starting you would shift from the position at the gate back into the main stadium and hill area; is that so?
A.Yes.”; Black, 317.45-.56
She readily conceded that it would be no more than a generalisation that she had not left the gate within ten minutes of the game starting and that she did not have a specific recollection of that matter; Black, 318.17-.26.
Thus, while Ms Coulter’s evidence was not specific to the occasion, it does support a general practice of continuing inspection where patrons were still coming into the game on what was, according to the evidence, a particularly busy night.
Ms Coulter also gave evidence that, depending on the game, there was anything from four to eight tables set up at Gate A (Black, 310.55). Patrons were told what they were allowed to bring in and what they were not allowed to bring in (Black, 311.5); patrons were asked specifically do they have bottles, cans, guns or flares (Black, 311.30); and all bags were searched (Black, 311.10), this being irrespective of the size of the bags (Black, 314.55).
There was also evidence from Mr Garry York, who was the Business Development Officer at WorkForce which provided labour hire for the football game. He described how, after successfully tendering to the Bulldogs for their services, a security procedure was developed in conjunction with the Royal Agriculture Society with two plans developed, depending upon the size of the crowd. There were 92 WorkForce staff on duty on 6 September 2002, including 47 security guards, and security was radio controlled; Black 292-3. Mr York gave evidence of attending Gate A where a number of security personnel were there to do bag searches. Mr York stated that he “saw a number of tables set up. Our guards sectioned off the area that was appropriate for bag searches and they were conducting bag searches.” There were “no exceptions, every person with bag - will be opened and searched”; Black, 295.
He showed an awareness of legal entitlements so far as searching bags were concerned whereby “we have to ask the person to place the bag on the table. That person will open the bag and we will stand back and they will move items in and out of the bag at that stage. We won’t enter the bags with our hands and we will only look at the items that are in the bag. They will repack the bag [sic] and either go through the turnstile or have the items confiscated.” Black, 295.38-.47.
That the system could not be foolproof was clear from Mr York’s negative answers to the question, “Were you entitled to pat people down or put your hand in their pockets or demand that they empty their pockets”, Black, 295.48-.56.
Importantly, he then gave this answer:
Q.As far as staff is concerned what is the procedure as far as bag searching or no bag searching is concerned after the start of the game?
A.The bag searching will continue. That doesn’t stop. The only difference after the game starts is that at both gates, our ticket takers knock off at - or leave their duties at half-time, just before half-time, and then security takes over those entrances.” Black, 296.51-.59.
In answer to the question, “Bag searching continues up to what time as far as doing the actual running of the game?” he replied “To the completion of the game, yep.” Black, 297.12-.16.
Finally, I should refer to Mr Faraj’s evidence. He agreed that “there were some three or four inspection tables there with three or four security on each table” (Black, 75.20-.30). Though he was not a late arrival that does not detract from his evidence having regard to the system to which Mr York attested and also Ms Coulter.
Conclusion
It was well open to the trial judge to conclude as she did that the system of bag inspection was in operation when the appellant and Ms Rangihuna entered Gate A some five to ten minutes after the game had started. There was no need for the trial judge to have given any additional reasons for the conclusions she reached on that matter. She sufficiently revealed her process of reasoning to enable the parties to understand why the decision was made and for purposes of any appellate review; see, for example, Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA. Nor was there any basis in Jones v Dunkel, or otherwise, by reason of the absence of a witness with specific recollection of what occurred at that time, to compel acceptance of the appellant/plaintiff’s evidence or that of his female witness. I therefore conclude that grounds 1 to 3 are not made out.
Evidence as to body searches – ground 4.
This ground is essentially that the trial judge failed to give reasons as to why she accepted that the security officers did not have the power to conduct body searches, etc. in light of the evidence of Chief Inspector Ashton.
This ground refers to the evidence of Mr Ashton, a Chief Inspector of Police. He was called by the respondent and gave this evidence: “However on that venue it’s a licensed premises covered by a governor’s licence which gives you the ability to search all persons entering the premises.”
The complaint is that in accepting that security personnel did not have the power to conduct body searches or require patrons to empty their pockets, the trial judge
“seems to have accepted the erroneous evidence of the security officers over the evidence of Chief Inspector Ashton. Her Honour failed to give any reasons for doing this and failed to deal with the Chief Inspector’s evidence at all in her judgment on this issue. In doing so, Her Honour has not correctly directed herself as to the manner in which she should have approached the evidence nor considered the Chief Inspector’s evidence as to these being licensed premises and the powers flowing therefrom”.
I do not consider that this ground has any substance.
The underlying premise is that it would have been negligent of security officers not to conduct individual body searches on the basis that, according to the evidence of Chief Inspector Ashton, they did have such a power. Even if it is assumed that security staff did have that power, notwithstanding that there was no proper analysis of whether the whole or any part of the venue was governed by a governor’s license nor specific reason given for such a license permitting body searches, that does not establish negligence in failing to exercise that power. As was put in argument, it would be totally impractical not only to inspect bags but also to carry out an individual body search of each person as he or she goes through the gate. We are not here talking about some individual whose very appearance and behaviour excited suspicion, there being no evidence of that. Accepting the undemanding requirement of foreseeability of risk, nonetheless “what a reasonable man would do by way of response to the risk” necessarily has regard, not only the magnitude of the risk and the degree of probability of its occurrence, but also to “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8.
Here, there is undoubtedly the possibility that harm could occur from fireworks, which could not be said to be insignificant. That said, the likelihood of serious harm would be relatively rare, though not so rare as to obviate the need for reasonable precautions. However, I consider that it was open to the trial judge to conclude that the burden of taking the precaution of a body search in every case, even if legally permissible, is not what a reasonable person would do by way of response to that risk. This conclusion is strongly supported by Chief Inspector Ashton’s evidence at Black, 285.33 that “physically it would be impossible to search all persons …”.
Conclusion
The trial judge gave sufficient reasons concerning body searches; ground 4 is not made out.
Evidence as to sniffer dogs – ground 9
The gravamen of this ground is that the evidence of Mr Peter Smith, the appellant’s expert, as to the use of “privately operated bomb detection dogs” was not addressed by Chief Inspector Ashton. He referred only “to police dogs” and did not “comment on privately trained dogs as referred to by the appellant’s expert”. It is then said that the appellant’s expert Mr Peter Smith was not required for cross-examination on this issue by the respondent so that “his evidence was unchallenged”. It is then submitted that “Her Honour failed to give due weight to the evidence of Mr Smith and failed to give any reason why Her Honour preferred the evidence of Chief Inspector Ashton which in effect, did not on the issue of privately trained dogs affect the evidence of Mr Smith”.
I consider that there is again no substance in this ground. The respondent dealt with the matter correctly in its written submissions which I quote below:
“27.The ‘bomb detection’ dog and handler point was dealt with by her Honour at J19.4 and following.
28.Her Honour was unpersuaded that Mr Smith had any basis for expressing the opinion that he did, and therefore accorded it no weight, as she was entitled to do.
29.There was no evidence of the availability, or cost of dogs and handlers.
30.The evidence was that, despite frequent and detailed pre-match planning with the security contractor and the police, no advice had ever been given of the need for dogs (see for example the evidence of Mr Mayor at T209.34).
31.There was no evidence that the use of dogs and handlers was common practice at like venues in Sydney, New South Wales, Australia or indeed elsewhere.
32.It is unnecessary to challenge by cross-examination evidence that lacks substance.”
Conclusion

The trial judge was not in error in failing to give any weight to the evidence of Mr Smith on the use of sniffer dogs; ground 9 is not made out.
Customer Safety Plan – ground 10
The appellant’s contention is as follows:
“14.The Appellant submits that in 2004, the Respondent had created an 18-point plan for customer safety procedures. It was clear that the Respondent’s witness, Mr Wairu, had not been made aware of the 18-point plan. It was also clear that items 9, 11 and 12 of that plan had not been in place at the date of the Appellant’s injury but at least 3 items on the 18-point plan which had been in existence since 2002 were not actioned by the Respondent (transcript, pp.233-260). The Appellant submits that this breach constituted a failure to take precautions for the safety of the Appellant that the Respondent itself saw as necessary.”
The trial judge dealt with that matter by concluding that she was “not satisfied that the plan in that form was in force as at September 2002” and that therefore she did not consider it necessary to consider whether there were any breaches of that plan; Judgment Red, 30.
It is, with respect, difficult to see to what this ground in any event amounts. This is so, given
(a)that the so-called 18-point plan was, as the cross-examiner recognised, not in place when the relevant events occurred (Black, 257.16-.19), and
(b)that Mr Wairu naturally would not have been aware of it as it was put in place after he left (Black, 257.20-.22).
The plan itself could therefore have no significance. Nor is it clear what specifically flowed from the fact that at least three items on the 18-point plan were not actioned by the respondent.
Conclusion
There can be no basis for ground 10 insofar as it states that “the judge erred in finding that the 2004 Customer Safety Procedures Plan was not in force as at 2002”. It is apparent from the evidence that the trial judge was correct in so concluding, as indeed the very cross-examination by the appellant’s counsel bears out.
The respondent’s response to earlier flares and fireworks – grounds 5 and 8
It is convenient to deal with grounds 5 and 8 together. Ground 5 is that the trial judge failed to give reasons for rejecting the proposition that reducing crowd density after the first release of fireworks into the crowd would have enabled the respondent to identify offenders in the crowd.
Ground 8 was that the trial judge erred in finding that stopping the game and/or re-directing fans to other parts of the ground would not have been of assistance, and misconstrued the police evidence in this regard.
These grounds are elaborated by the appellant in its written submissions as follows:
“11.The Appellant submitted on liability that the crowd density could have easily been reduced to enable security officers to identify the offenders with the fireworks. At p.301.51 of the transcript, Mr York, a witness for the Respondent, conceded that it was not difficult to stop the game after the initial firework had been used and at p.317.39 of the transcript, it was also conceded by Mr Coulter that a procedure to investigate an evacuation of the hill area where the Appellant was injured was also not difficult.
These issues were pleaded at paragraphs 5(a), (m) and (s) of the Amended Ordinary Statement of Claim.
Her Honour dealt with the amount of security staff but did not deal at all with the issue of a reduction in the size of the crowd in the area where the Appellant was injured other than at p.17 of the judgment but failed to give reasons as to why she was not persuaded that reducing the crowd density would have been effective in preventing the further discharge of fireworks. The expert evidence of Mr Peter Smith for the Appellant recommended reducing crowd density in the area, however, her Honour failed to give reasons as to why this was not persuasive.”
What is at issue here is the steps that should have been taken when the firework was set off at about 8.32pm or the earlier flare at about 8.18pm, these being the events that occurred after the game commenced.
The trial judge accepted the evidence of Mr Wairu. His evidence, noted by the trial judge (Judgment Red, 25-6) was that after the flare on the hill went off at 8.18pm he secured the area in ten seconds. He said that following the firework at 8.32pm, action was taken by a supervisor, whom he joined on Bulldog Hill where these events were occurring. The trial judge then referred to the practice of security guards normally standing off to see if they can identify the culprit by his or her doing it again, pointing out that it is difficult to see what positive action could be taken if the culprit was not identified. That was a conclusion which the trial judge evidently accepted based on Mr Wairu’s evidence.
The trial judge then recorded the evidence that shortly after 8.32pm, “steps were being taken in the security room to identify a possible offender in a group of six”; Judgment Red, 26.
The trial judge rejected the plaintiff’s submission that because the security guards could not identify who had lit the firework there must have been an insufficient number of security personnel present. She reached that conclusion having regard to 58 minutes of security footage which she viewed and the totality of the evidence. She stated that she was not persuaded that the presence of any more security guards would have necessarily led to identification of the culprit or culprits. In support of that she states that she had “particular regard to the evidence of Mr York who said that the fans tend to get into a close group, someone ignites the flare and drops it on the ground, then they disperse, making it difficult to pinpoint anyone in the group”; Judgment Red, 27.
The trial judge then concluded against the proposition that if the security guards could not determine who had lit the earlier firework then a decision should have been made to reduce the density of the ground on Bulldog Hill “in order the culprits could have been identified or more closely monitored”; Red, 27. She concluded:
“However, the evidence established that Bulldog Hill had been closed at around 7.43pm and Mr York said that this was done to ensure that there was not an overload of patrons and I am not persuaded that reducing the crowd density following the flare and fireworks would have been effective in preventing the discharge of further fireworks.” (Judgment, Red, 27)
A reading of the expert evidence of Mr Smith does not take the matter further. He suggests re-configuring Bulldog Hill from a place of standing accommodation to that of a seated area as being integral to the security plan; Blue, 119. But that does not bear upon whether at the time of the incident steps should have been taken to reduce crowd density in the area.
As to ground 8, to the effect that the trial judge erred in finding that stopping the game and/or re-directing fans to other parts of the ground would not have been of assistance, and misconstrued the police evidence in that regard, the contention was properly disposed of by the trial judge in these terms:
“(c) Failure to stop the game and/or remove patrons from Bulldog Hill
The evidence established that there were procedures in place for evacuation of the hill should this become necessary. Although Mr York said that the defendant had the power to stop the game, Mr Mayer disputed this and said it was a matter for the NRL.
The plaintiff submitted that given the potential for injury the defendant could have either stopped the game until it could have been determined who possessed further flares or fireworks or close Bulldog Hill and redirect the spectators to other areas and redeploy security guards without having to stop the game and that there is no evidence that the defendant in any capacity considered these options.
I am not persuaded that stopping the game would have been an appropriate course in the circumstances and I do not consider that this would have assisted security staff and police in identifying any persons who possessed flares or fireworks, especially given that fact that the security guards did not have the right to search persons and that although the police did, there were guidelines to be observed, such as having reasonable cause.
Further I do not consider that redirecting Bulldog fans to other parts of the ground would be likely to reduce the risk of injury.” (Judgment, Red, 28-29)
Conclusion
It was open to the trial judge to conclude as she did that sufficient steps were taken in regard to avoiding an overload of patrons and that further reducing the crowd density following the flare and fireworks would not have been effective in preventing the discharge of further fireworks. To that I would add that it has not been shown that a reasonable person would have taken these additional steps by way of response to the risk.
Respondent’s response to earlier flare/firework – grounds 6 and 7
These grounds are elaborated in the following terms by the appellant in its written submissions:
“12. The Appellant submitted that additional precautions could have been taken such as requesting Mr Mortimer, the Chief Executive Officer of the Respondent, to attend at the hill area to make a further ‘simple plea’ for the crowd to behave. At p.297.46 of the transcript, Mr York gave evidence that Mr Steve Mortimer, the then CEO of the Respondent, had approached the hill area prior to the commencement of the game with a plea to the crowd that everything be kept ‘under control’.
Her Honour merely said at p.18 of her judgment ‘I am not persuaded that the failure by the Defendant to take any of these steps constituted a breach of duty of care owed to the Plaintiff’. Her Honour did not give any reasons as to why the presence of the CEO, Mr Mortimer, at the hill for a second time would have had no effect bearing in mind that it was the Respondent itself that made the decision to make the plea to the crowd on the hill at the commencement of the game and the CEO could have said to the crowd after the lighting of the first firework that any further fireworks would see the hill area being evacuated and the game stopped until the evacuation had taken place. At the very least, the CEO could have made a request of the crowd for them to cease letting off fireworks and her Honour has given no reasons why she was not persuaded on this issue.”
This is dealt with by the trial judge in the following terms:
“Mr York also gave evidence that Steve Mortimer, then the Chief Executive Officer of the Bulldogs, approached Bulldog Hill at the beginning of the game to address the crowd. He said that this was in the nature of a plea in an effort to ensure that everything was under control and that they enjoyed the night. The plaintiff asserted that Mr Mortimer should have been called upon to repeat this plea after the flare and firework were discharged and the security guards could not identify the culprit.
The plaintiff further submitted that following the flare and the firework a loudspeaker message could have been made to the spectators to the effect that they should desist from lighting flares or fireworks and to warn patrons that security had not been able to ascertain whether there were any further dangerous items in the crowd and that they may be at risk.
However, I am not persuaded that the failure by the defendant to take any of these steps constituted a breach of the duty of care owed the plaintiff.” (Judgment Red, 27-28
I would add that while these additional steps were certainly open, (a) there is no evidence that it was common practice to take those steps, (b) Mr Mortimer’s first plea in fact went unheeded as we know from the events that subsequently occurred, (c) there is no evidence of the practicability of evacuating the relevant part of the venue, (d) the evidence was that the NRL and its appointed official, the match referee, but not the respondent had the power to stop the game.
In those circumstances it is understandable that the tribunal of fact, being the trial judge, was unsatisfied that a reasonable person would have taken these steps by way of response to the risk. The trial judge moreover gave sufficient reasons for being unconvinced on that matter to satisfy any requirement to give sufficient reasons. Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 reminds us that “reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. There is no tenable suggestion that the trial judge failed sufficiently to refer to evidence “important or critical to the proper determination of the matter”. Decisions on appellate review, such as Fox v Percy (2003) 214 CLR 118, bear more on the adequacy of reasons than their sufficiency. Sufficiency of reasons is concerned with whether there is a process of reasoning sufficiently revealed to permit appellate review and detect appellable error; rather like the invocation to show one’s workings in answering a problem in maths so the source of any error is apparent. Reasons are likely to be sufficient precisely because they are explicit enough to permit the actual appellable error to be revealed; for example in revealing a failure to take account of incontrovertible facts that demonstrates that the trial judge’s conclusions were erroneous. Another species of appellable error is failure to engage with or enter into the contested issues; see Maylan v The Nutrasweet Company [2000] NSWCA 337 at [61]-[68], Jones v Bradley [2003] NSWCA 81 at [128]-[131]. It too represents an insufficiency of reasons.
This taxonomy has significance. A deficiency in reasons that are nonetheless sufficient but adjudged wrong, reflects judicial fallibility and sometimes simply legitimate difference in the leeways of judicial choice. It is addressed by the hierarchy of appeals. Failure to give sufficient reasons however operates at a more basic level, as a failure in the judicial process itself. It should be reserved in appeal grounds for the cases that truly warrant that label.
Conclusion
The trial judge gave sufficient reasons as to why she was not persuaded that the absence of an announcement by the CEO of the respondent constituted a breach of the duty of care owed to the appellant, having regard to the tribunal’s perception of what a reasonable person would do by way of response to the relevant risk. In my view, no error has been shown in that assessment by the trial judge.
Section 5B Civil Liability Act 2002 (NSW) – ground 11
This ground is articulated as follows by the appellant in its written submissions:
“15.Her Honour dealt with Section 5B of the Civil Liability Act 2002 by merely referring to Section 5B(2)(d) at p.22 of her judgment. It is submitted that her Honour applied a test as to the social utility of the activity but failed to consider what a reasonable person would do within that activity. Her Honour looked at the general risk of conducting a football game rather than the risks associated with injury to patrons in the crowd as a result of the letting off of fireworks. Her Honour also applied the wrong test by merely looking at the social utility of a football game.”
I do not agree that the trial judge failed to identify what a reasonable person in the position of the defendant would have done by way of alleviating the relevant risk. Her judgment, as is clear from what I have said earlier, dealt with precisely that question. That she also dealt with the social utility test in s5B is nothing to the point.
Conclusion
There is no substance in this ground; the trial judge not only applied the social utility test in s5B of the Civil Liability Act but also dealt with what a reasonable person would do by way of response to the relevant risk.
Damages – ground 12
Having concluded that the respondent, essentially for the reasons stated by the trial judge, was not in breach of its duty of care to the appellant, it is unnecessary to deal with the various submissions made by the appellant seeking to find error on the determination of damages. I note that the trial judge carefully articulated the considerations including residual earning capacity that led her to conclude as she did concerning the damages that would be assessed if, contrary to her conclusion, the respondent were liable for breach of the duty of care.
OVERALL CONCLUSION
The appellant has been unsuccessful in its challenge to the trial judge’s conclusion that the respondent was not liable for any breach of the duty care it owed to the appellant. I propose orders as follows:
(1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs of the appeal.
IPP JA: I agree with Santow JA.

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LAST UPDATED: 17/03/2006

[2006] NSWCA 53

17 March 2006

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Appeal

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