Karimi v Rooty Hill RSL Club Limited & Ors

[2007] NSWSC 938

CITATION:	Karimi v Rooty Hill RSL Club Limited & Ors [2007] NSWSC 938
HEARING DATE(S):	6-8 August 2007; 10 August 2007
JUDGMENT DATE :	24 August 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Judgment for Plaintiff; (Orders pars 52-54)
CATCHWORDS:	NEGLIGENCE AND TRESPASS - VIOLENT ATTACK ON PATRON OF LICENCED CLUB BY ANOTHER PATRON - PREVIOUS ATTACK BY SAME ASSAILANT - LIABILITY OF CLUB, SECURITY GUARD COMPANY AND ASSAILANT
PARTIES:	Tarique Karimi by his tutor Qudsia Askarzada v. Rooty Hill RSL Club Limited Allied Security Group Pty Limited and Michael Gordon Smith
FILE NUMBER(S):	SC 2006/20092
COUNSEL:	P. Doherty SC with P. Biggins (Plaintiff) M.L. Williams SC with R. Scruby (First Defendant) A.B. Parker (Second Defendant) No appearance (Third Defendant)
SOLICITORS:	David Legal (Plaintiff) McCabe Terrill (First Defendant) Curwoods (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 24 August 2007

2006/20092 TARIQUE KARIMI by his tutor QUDSIA ASKARZADA v ROOTY HILL RSL CLUB LIMITED, ALLIED SECURITY GROUP PTY LIMITED and MICHAEL GORDON SMITH

JUDGMENT

1 HIS HONOUR: On 19 April 2003 the plaintiff, Tarique Karimi, was a patron making use of facilities provided by the first defendant Rooty Hill RSL Club Limited (the Club). In a car park of the Club he was attacked by the third defendant (Smith). His injuries and their consequences are not presently in issue but it appears that he was taken to hospital where he remained comatose for about two months and he suffers significant residual brain damage. The action is brought by his tutor. It was stated that his condition has not yet stabilized and the action is before the Court by order that there be separately determined any liability of the defendants abovenamed and/or the second defendant Allied Security Group Pty Limited (Allied) which provided security guards at the Club.

2 The plaintiff did not give evidence. Mr Doherty SC stated that his instructions were that his client had no memory whatsoever of the day but before the close of his case he had become ill and had been advised to remain at home. Mr Williams SC for the Club stated that he required the plaintiff called if only to say that he had no relevant knowledge. In the event the plaintiff was, as I have said, not called and Mr Doherty acknowledged that he would suffer any comment about the absence. No comment was in fact offered.

3 I am satisfied that on 15 May 2006 Smith was appropriately served with a statement of claim and other documents as set out in the affidavit of James Grieg. Smith filed no appearance and did not appear to participate in the hearing. Where reference is made to undisputed matters or agreed facts, it should be taken to refer to the stances of the Club and Allied, both of which appeared in order to contest the plaintiff’s claim. It is an agreed fact that in August 2004 Smith was convicted of maliciously causing grievous bodily harm to the plaintiff.

4 The Club occupies a considerable parcel of land upon which is a large building within which are located typical club facilities and to which a motel is attached so that the combined building lies on an approximate north-south axis with a main entrance on the east and a “back” entrance on the west. Across the road (Sherbrooke Street) from the main entrance is a car park (the front car park) and a much larger car park is located to the west of the building. The Club has admitted its occupation of the premises including the car parks.

5 The 19 April aforesaid was a Saturday. The plaintiff joined a group of his friends whom he was accustomed to meet for the purpose of playing snooker and socializing. Two of his group were the witness Ali Baryalei and his father. They and the plaintiff are members of a community in Australia of Afghan origin. Neither of the Baryaleis drinks alcohol and Ali Baryalei did not think that the plaintiff did either but said that he was not too sure. I find that the plaintiff has not at any time on this evening appeared to have partaken of or be affected by the consumption of alcohol.

6 At about 2311 hours (there are timings on CCTV extracts which have been compiled and tendered) the plaintiff and his group of friends were watching the activity at a roulette table. Smith, a stranger to them, approached. He behaved in a way which was thought by the group to be unusual in that he was flexing his muscles and intervening in their conversation. Ali Baryalei thought he looked “pretty drunk” and they sought to deal with his intrusion by joking with him. However, Smith said that he wanted to fight the plaintiff and he struck out and hit him. In response the plaintiff sought to resist and they fell to the floor. The plaintiff’s friends tried to intervene but without delay security guards arrived and what was described as a scuffle ended.

7 As Ali Baryalei described it, a guard (they are identifiable by their clothing) told him that it was “management’s call” that all involved in an incident had to leave the Club that night but that they would be welcome to return on the following day. Ali Baryalei (and his father) had been dropped at the Club earlier by his mother and they left with their friend Ahmed, who could give them a lift home, Ahmed’s lady friend and the plaintiff. In accordance with a direction by a security guard they went to leave by the western foyer.

8 In the meantime, Smith had been escorted to the eastern foyer. Later, having been joined by his girlfriend Ms Cameron, they crossed to her car which was in the front car park and they were observed to drive from it.

9 Shortly thereafter, the group of people including the plaintiff were leaving the western entrance. The plaintiff turned towards the northerly part of the western car park where he had left his car and Ahmed and the other three turned towards the south where his car was located.

10 Ali Baryalei heard a woman screaming. I am satisfied that this was Ms Cameron. He also heard footsteps of a person running. He saw this person and recognized him as the man who had earlier intruded into their group near the roulette table. It was Smith. He was running, to Mr Baryalei’s observation, from the direction of the motel. The plaintiff had moved only a few metres from steps leading out of the western foyer. Smith ran to the plaintiff and punched him causing him to fall to the ground. Smith continued to run but was ultimately apprehended and detained by the security staff. The plaintiff was left unconscious on the ground, first aid was called and he was later taken to hospital by ambulance.

11 It is necessary to examine some detail relating to the sketch of events just given.

12 The only clue as to what might have precipitated Smith to behave as he did is found in the evidence of Ms Cameron. In her statement (Exhibit R) she refers to a man “staring” at her. If she had that impression, I am not satisfied that it was based in fact. She had been drinking Jack Daniels (bourbon whiskey) and coke “on and off” since 6 pm. She testified that she wanted to speak to the security guards at the rear entrance (after she and Smith were at the front entrance) because she thought that the “other men” were still in the Club. She indicated an apparent sense of unfairness because she believed that she and Smith were being evicted whereas others who “basically started the fight” had not been evicted. If that was truly her belief, that is that the others had not been required to leave the Club, there would be little point in going to the back entrance. Both attacks by Smith were unprovoked and I reject Ms Cameron’s testimony that the fight was started by “the others” and I reject her description of the group of men of which the plaintiff was a member, as aggressive.

13 There is extracted from records made by employees of Allied, and submitted to the Club, a number of incident reports including reports prepared by a security officer Mr Namrawi. One of these (Exhibit O) includes:

“At this time a female patron (Witness/victim 3) was exiting the club via the western foyer doors. As victim 3 (Tarver) passed officer Namrawi she appeared to be limping paused and said to officer Namrawi ‘These guys weren’t in the wrong. I saw the whole thing. No actually I was in the thing; I had my foot stomped on by the other guy that started it’. Officer Namrawi asked Tarver ‘What did you see of the incident’? Tarver responded ‘The other guy (Smith) come up to them for no apparent reason and punched this guy’ Tarver pointed towards Karimi. Tarver continued to say, ‘These guys (Karimi and Baryalei) didn’t do anything wrong. The other guy looked like he was just looking for trouble’. Officer Namrawi asked Tarver ‘Do you know these guys (Karimi and Baryalei)’? Tarver replied ‘No, not at all. I was just in the middle of it’. Tarver indicated that Smith had accidentally stomped on her foot during the incident and that she had a pre-existing injury to her foot. Officer Namrawi asked Tarver if she required first aid to look at her injury. Tarver initially declined the offer but subsequently accepted officer Namrawi’s offer. Officer Namrawi called for a first aid officer to attend. Tarver at this stage made her way to one of the courtesy seats stationed at the western foyer ramp area. Club Managers L. Collins and M. Johnson had arrived by this time.”

14 Similar information recorded by Mr Namrawi can be found in Exhibit M. These incident reports were made in a bound book. It was apparently kept at the Club but completed by employees of Allied from time to time as required. The book has not been produced in response to subpoena or call, by either of those defendants.

15 Neither his employer Allied nor the Club called Mr Namrawi, nor did any party call Mrs Tarver. The record of what she has said is fortifying of Mr Baryalei’s evidence, which I accept, that Smith’s attack inside the Club was unprovoked by anything done by the plaintiff or by the people with him. It can be noted that there is a recording of the presence of the two named Club managers prior to the plaintiff and his group leaving the Club.

16 Further confirmation of the plaintiff’s innocent behaviour is noted in what appears to be a first aid report by a Mr Avery (Exhibit F) which includes:

“He (Mr Karimi) kept saying why did he hit me I did nothing to him, been (Mr M. Smith), Security officer Stev Namrawi then escorted Mr Karimi to the Western foyer, I then continued to the staff room for my break when I ran into the floor Supervisor Mr Peter Jones who said that he had got the security officers because he feared by the way he been (Mr M. Smith) was acting and the verbal words he was having with the other male been (Mr Karimi) that there was going to be trouble.”

17 This part of Mr Avery’s recitation refers to events after the attack within the Club and before the subsequent attack in the car park.

18 Of course these recordings are hearsay and in some aspects are self serving statements by the plaintiff but, subject to the faint allegation in Ms Cameron’s proposition about appearing aggressive, which proposition I reject, there is no contradiction of the plaintiff’s protestations and the evidence is compellingly supportive of his innocent victim status.

19 Smith and Ms Cameron were escorted to the eastern foyer by security staff including Mr Pale-Eli. He said Smith was initially agitated but later appeared to calm down. Ms Cameron said she wanted to go “around the back” and confront the other men but he dissuaded her and she and Smith told him that they would go home. Mr Pale-Eli left them with other guards. Not all the indications pointed to Smith having abandoned his antagonistic feelings towards the plaintiff. Mr Pale-Eli agreed that Smith added “I should go back in there and flop my dick on his head”. Mr Pale-Eli assessed him as being angry when he said this.

20 When he left Smith and Ms Cameron, he arranged for guards at the front to report by radio when they had observed departure. In cross examination by senior counsel for the Club Mr Pale-Eli gave this evidence:

“Q. You’ve got a fight and you’ve broken up the fight and you’ve taken one person out one door and another officer’s taken the other fighter out the other door. Are you given any guidance as to what you should do with the people once they’re out the door?
A. To manage them while they’re outside.
Q. Yes?
A. If they need a taxi supply them with a taxi to get home. If they’ve got vehicles then make sure they’re taken to their vehicles, and just practically supervise them while they’re outside or while they’re in the club.” (T123; emphasis added).

21 As the events in the western car park demonstrate, the plaintiff was not taken to his vehicle or supervised in a practical way but left to make his own way from the western entrance to his car. He was then manifestly vulnerable to renewed attack.

22 Smith and Ms Cameron did not return home. They arrived in the western car park within, at most, minutes of leaving the front car park. There are two entrances to the former. It is routine to close the northerly entrance at some time during the night and by 11 pm or later one might expect this to have happened but the evidence does not establish actual closure. Ms Cameron testified that it was her sole decision to go to the western car park. She said that she wanted to speak to the other security guards but the only reason she would want to speak to those particular guards would be if she had some knowledge of the other group making their exit from the western foyer. A somewhat different situation is noted in documentation produced from the Club’s public liability claims managers, Proclaim (Exhibit V):

“Ms Camerons membership should be reviewed as she drove from the front car park to the back car park with Mr Smith knowing that he was still looking for Mr Karimi. Mr Smith hit Mr Karimi from behind which resulted in Mr Karimi in hospital suffering a fractured scull (sic) possible brain damage and his condition is deteriorating.”

23 I do not find Ms Cameron to be a reliable witness. The impression I gained was that her answers were designed to seeking to defend Mr Smith rather than being candid. I would treat with equal reserve what she stated to police.

24 No further elaboration is required concerning the plaintiff’s claim against Smith. His tort of trespass to the person of the plaintiff was undeniably committed and I find that he injured the plaintiff by striking and is liable to pay compensatory and possibly punitive damages but, as I have said, damages are not presently in issue.

25 I turn to the cases against the other defendants.

26 It is accepted by the Club that there existed a duty to exercise reasonable care as regards intoxicated or dangerous customers, which duty extends to the protection of a patron whilst he is on or departing from licensed premises. The Club consists of licensed premises and, as above stated, the Club acknowledged its occupation of the premises including the car parks.

27 The observations of the security guards were that Smith was showing signs of being affected by prior ingestion of liquor. They, and the Club’s managers who attended the incident near the roulette wheel, ought to have known that he was potentially dangerous not only as a result of the plaintiff’s protests but the reports to Mr Namrawi and Mr Avery.

28 As I shall later observe, it is the Club’s policy not to seek to assess whether one or other of disputants is an aggressor but to require both parties to be evicted. Whilst I find that to represent a system failure relevant to the exercise of care for patrons, in this instance there was a failure to heed information identifying an aggressor which was in fact in possession of both the employees of the Club and Allied who were involved in requiring the plaintiff to leave.

29 There is a publication of Security Standard Operating Procedures for the Club (Exhibit D). Whilst much of the content is understandably expressed in general terms, there are specific proclamations, some of which I consider relevant to the present context. Under the heading “External Procedures” there appears:

“The perimeter security and the security of the immediate public areas, car parks outside the Club is obviously crucial to the success of the overall security strategy.
………….
When appointed for duty at either the external area or car parks of the Club, your principal duties are to ensure an incident free and safe environment for the Club’s staff and patrons as well as for the free movement for cars and pedestrians. Guidelines are as follows:
…………
7. Staff are to be escorted to their vehicles in the staff car park after sundown.
External operatives should listen for hard evictions coming out either the Main Foyer or Western Foyer. Steps should be taken to ensure the area is clear of patrons and that the ‘snap-open’ doors are wide open. Once a patron has been evicted or refused entry it is the responsibility of External Security to ensure they do not re-enter and remain off site if that has been instructed by the Security Supervisor or Management. ” (Emphasis added).

30 The evidence does not reveal exactly where the staff car park is located but the satellite image (Exhibit A) of the Club’s property provides an inference, which I draw, that it must be within either the front or western parking area, probably the latter which is far larger.

31 The minimum estimate of the number of guards on duty on 19 April was sixteen. They include guards located within and outside the buildings. What has not been addressed, in particular, is the situation of this Club in that it occupies two separated car parks. In the present case, assuming that the patrol guard who observed Smith and Ms Cameron depart the front car park would, in compliance with the published standard operating procedure, ensure that they did not re-enter there, no one seems to have turned their mind to the alternative of an evictee entering into the other car park, which is where the plaintiff and his friends were being directed to exit. That the guards who were called had not experienced a person going from one car park to the other scarcely demonstrates that such an obvious possibility was not foreseeable.

32 All guards could communicate with each other, either directly or through a control room. The evidence shows that the person in the control room had a view of the product of the security cameras as well as capacity to monitor radio transmissions. The control room operative Mrs Kelly was not called. Although the guards assigned to external and inside duty were on different radio communication channels it is plain that Mrs Kelly could easily advise officers, including any patrolling officer in the western car park of the description of the vehicle in which Smith and Ms Cameron had left. The registration number of this vehicle had been noted and there was no inhibition against that information being reported.

33 The criminal behaviour of Smith in the western car park followed his earlier assault of which occurrence the Club (I have noted the arrival of managers) and some (Allied) security guards were aware. I reject the submission that it was not reasonably foreseeable that Smith would re-enter the premises after departure from the front car park. The test is undemanding and, in this case, Smith’s remark to Mr Pale-Eli revealed a continuing antagonism which he was directing towards the plaintiff. Observations of some security guards were that Smith was moderately affected by alcohol. I see no reason not to give weight to Mr Baryalei’s estimate that he appeared “pretty drunk”.

34 A vigorous attack was mounted upon the evidence of the witness Mr Jennings and his expertise. An attempt to demonstrate partisanship failed. I note that he was retained by the plaintiff as a result of enquiry directed to the Unisearch organization, that he rendered an account for preparing his opinion and that the account has been paid. It may be that, as has been commented elsewhere, it is unhelpful for him to use expressions such as “it is essential” and so and so “should” be done, but in this instance his relevant comments accord with what I would respectfully suggest common sense would dictate. As he observed (Exhibit S, par 29) when there are two parking areas, monitoring should take place in case the ejected person merely leaves one area and enters another. Reasonable care for the protection of a patron whom the Club (through the managers who attended the first incident) and Allied (through the security guards whose job it was) required that the vehicle in which Smith was known to be riding be restrained from re-entering into the premises. If restraint failed, it was evident in the circumstances that the plaintiff was a person who should be provided with protection.

35 Mr Jennings opined (Exhibit S par 43) that the plaintiff should have been kept inside the Club for half an hour after the departure of the assailant, and his non re-entry assured, before the plaintiff was invited to leave and then he should be taken to his vehicle. In this regard I refer back to the evidence of Mr Pale-Eli above quoted. Whilst I accept the defendant’s contention that there is nothing shown to support the specific assessment of half an hour, it is obvious that the departure of both evictees should be significantly staggered by time delay. This is not what happened. If there had been reasonably separated staggered departures of Smith and the plaintiff, the risk which fell due would probably have been avoided.

36 No one disputed the existence of the Club policy, implemented by Allied’s employees, that when parties became involved in an incident, both “sides” would be ejected at least until possible readmission on the following day. The application of the policy was described in brief but clear terms by Mr Baryalei. The policy does not require or even suggest any investigation as to which party may be at fault. Whilst it is readily perceptible that in many instances enquiry may be met simply with contradiction from the parties, it is a glaring omission not to make any enquiry at all. Such an omission prevents those exercising the duty of care from learning, if it be the case, that one participant has been an aggressor. This in turn would put them on notice that that aggressor should have particular attention paid to him or her. In this case there was such an aggressor, Smith, and his movements should have been monitored with that in mind and the plaintiff’s person guarded against further attack, at least by escort until he was in the comparative safety of his car and away from the presence of Smith. As I have earlier noted, despite the defective policy, in this instance information was possessed by the defendants that the plaintiff was the innocent victim of Smith’s aggression.

37 Although the Club in particular submitted that Mr Jennings evidence should not be accepted generally, it sought to embrace his opinion that those responsible for security should not listen to what the parties to a conflict had to say. As I have indicated, I regard it as unreasonable to refrain from making any enquiry at all and thus eliminating the possibility of learning that one party has engaged in unprovoked aggression. It would therefore be requisite to at least listen to what parties had to say.

38 If monitoring and patrol of the western car park had failed to prevent Smith’s re-entry, it is no answer to the plaintiff’s claim (as was submitted) to observe that Smith was described as coming from “nowhere” and moving rapidly. The plaintiff was rendered vulnerable by being alone. The presence of a security guard not only might have operated to inhibit Smith from further attack but that guard, if he was escorting the plaintiff, could intervene to defend against Smith’s attack. In that way the injuries which the plaintiff suffered should have been avoided.

39 As security officer Scholes testified, there were often several evictions a night from this Club and it was “a bit rough house out there” (T138). As above recited, it was a published standard operating procedure to escort staff to their car park after dark and at the very least a victim of attack should have been afforded the same level of security when it ought to have been known that he had been such a victim.

40 The defendants argue that the plaintiff’s “case on causation falls down at two points.”

41 The first contends that a monitoring process would not have been effective. In isolation, it obviously would not but, if monitoring took place, the re-entry of the vehicle would have been observed and steps taken to redirect it from the property. That was the precise responsibility of the external security as recited from Exhibit D above. Nor is the contention valid insofar as it refers to the suddenness of Smith’s attack in the western car park. He was able to make his strike in the fashion which he did because there was no security escort for the plaintiff to inhibit such an attack.

42 The second point is a hypothesis that the evidence does not establish that the plaintiff (and/or those in his company) would have remained in the comparative safety of the foyer whilst monitoring took place. The evidence of Mr Baryalei was that they remained on the verandah exchanging conversation with a security guard “for a while.” As submitted by the Club, I accept that a notification was transmitted that the vehicle in which Smith was riding had left the front car park even though the guards called (Mr Scholes, Mr Peterson and Mr Pale-Eli) could not recall the details. However, I do not accept that there was a reasonably sufficient time lapse thereafter before the group at the western entrance were sent on their way. They had been prepared to remain engaged in conversation with the guard and, particularly if they had been told that Smith had only recently left the other car park. I am satisfied that the probability is that they would have remained until given an “all clear” indication.

43 I reject these arguments of the defendants on the issue of causation.

44 In summary, I find that the Club was in breach of its duty of care towards the plaintiff in failing to guard against the foreseeable risk of his being attacked by Smith in pursuing a policy of eviction of both disputing sides without any enquiry that might identify an aggressor with a consequent need for particular monitoring of that aggressor; in failing to maintain a system of ensuring that an evicted disputant did not re-enter the premises; in failing to adequately monitor and stagger the departures of disputants and in failing to escort disputants to the points of departure.

45 I find that Allied was in breach of its duty in its capacity as the provider of security for patrons including the plaintiff in failing to comply with a reasonable procedure ensuring that Smith did not re-enter the premises; in failing to monitor the vehicle in which he was known to be travelling, in failing to restrain that vehicle from re-entry into the western car park; in failing to ensure that Smith was absent when the plaintiff was proceeding from the foyer to his vehicle; in failing to escort him to his vehicle and failing to take precaution against the possibility that Smith would return and renew attack on the plaintiff by advising him to remain within their area of protection in the foyer until a sufficient time had elapsed to make it reasonable to conclude that Smith had left the area.

46 In regard to both defendants they were, as above discussed, possessed of information which should have warned them that Smith harboured aggressive feelings towards the plaintiff and that these had manifested themselves in an unprovoked attack near the roulette table. In that circumstance there was a demonstrable requirement for precautions to be taken for the safety of the plaintiff but a routine ejectment and nothing further was implemented.

47 The Club has instituted a cross claim against Allied and Smith. No evidence about its contractual relationship with Allied was tendered by the Club. There is some incidental material relating to payment and procedures in documents tendered by the plaintiff. I note that it is not specifically pleaded but I find that the evidence does not in any event establish that the Club had delegated its duty of care to Allied. Both owed a duty of care to the plaintiff and both were in breach of their respective duties, some aspects of which were coordinate.

48 In assessing the respective contributions to the damage suffered by the plaintiff I take into account what I consider to be the overarching policy failure which obstructed the derivation of information identifying an aggressor and, if both disputants are to be evicted, seeing to a practical system to stagger the departures by an adequate interval. As Mr Baryalei described the situation, these emerged as “management’s call.” Allied failed to monitor the re-entry of Smith, to restrain that re-entry and to see to the plaintiff’s safe arrival at least as far as his vehicle by suitable escort.

49 Taking these and the matters which I have earlier described and which establish the contention of negligence on the part of the defendants, I find that the Club should have contribution from Allied to the extent of one half of the damages found payable by the Club to the plaintiff.

50 By the time of the conclusion of the hearing Smith had not been served with the cross-claim. I gave leave to prove service by affidavit if it came to be achieved. The affidavit of Gregory Hughes shows personal service on Smith on 17 August instant. Smith has not, as above stated, appeared to contest the plaintiff’s claim and it would, I consider, be unlikely that he would appear to contest the cross-claim but in its terms, Smith has 28 days after service to file a defence to it if he elects so to do.

51 For practical reasons, judgment on the other issues should not be delayed and I will grant liberty to the cross claimant to approach the List Judge for the purpose of moving for judgment on the cross-claim. What is potentially involved in a hearing will depend upon what response, if any, Smith makes. On the totality of the present evidence, it is difficult to contemplate that any judgment other than requiring Smith to indemnify the Club for any damages it is liable to pay the plaintiff should be given.

52 I direct judgment for the plaintiff against all three defendants for damages to be assessed.

53 On the cross-claim by the Club against Allied, I direct judgment in favour of the Club for contribution to the extent of one half of the damages payable by the Club to the plaintiff.

54 On the cross-claim by the Club against Smith, I adjourn the hearing until the expiry of the time available to Smith within which he may file a defence to the cross-claim and, after the elapse of that period I grant liberty to approach the List Judge for the allocation of any necessary hearing.