LEEDAL Pty Ltd v Buick - [2002] WASCA 72

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LEEDAL PTY LTD & ANOR -v- BUICK [2002] WASCA 72

CORAM: MURRAY J
ANDERSON J
EINFELD AJ

HEARD: 23 OCTOBER 2001

DELIVERED : 9 APRIL 2002

FILE NO/S: FUL 44 of 2001

BETWEEN: LEEDAL PTY LTD
FITZROY RIVER LODGE PTY LTD
Appellants (Defendants)
AND
JAMES ANDREW BUICK
Respondent (Plaintiff)

Catchwords:

Negligence - Hotel security officer assaulted by patron outside hotel - Whether in the course of employment - Whether duty of care owed - Whether negligence established - Whether injuries caused by any breach of duty - Turns on own facts

Legislation:

Occupational Health and Safety Act 1984, s 19

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellants (Defendants) : Mr M W Odes QC & Ms J A Hawkins
Respondent (Plaintiff) : Mr I L K Marshall

Solicitors:

Appellants (Defendants) : Basile Hawkins
Respondent (Plaintiff) : S C Nigam & Co

Case(s) referred to in judgment(s):

In re Wrightson, Wrightson v Cook [1908] 1 Ch 789
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Altman v Dunning [1995] 2 VR 1 (CA)
Fabre v Arenales (1992) 27 NSWLR 437 (CA)
Ghazal v GIO (NSW) (1992) 29 NSWLR 336 (CA)
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Holloway v McFeeters (1956) 94 CLR 470
Jones v Dunkel (1959) 101 CLR 298
Pappas v New World Oil Developments (1993) 117 ALR 304
Stuart v Brown (1996) 17 WAR 525
Trippe Investments Pty Ltd v Henderson Investments Pty Ltd (1992) 106 FLR 214
Turner v State of South Australia (1982) 29 SASR 552
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Warren v Coombes (1979) 142 CLR 531
Western Australia v Watson [1990] WAR 248
Wyong Shire Council v Shirt & Ors (1980) 29 ALR 217

MURRAY J: Monday 13 September 1993 was a normal, quiet evening at the Crossing Inn Hotel at Fitzroy Crossing. The respondent was employed there as a security officer. During the evening he escorted, or at least accompanied, a patron, a man named Bedford, off the hotel premises and out to the area of a carpark near where there was a public telephone. His purpose was to remove the person from the premises because he offered to fight the respondent. The idea was that the man and his companions would telephone for a taxi if one was not immediately available and leave. However, once they got out to the carpark the respondent was attacked by Bedford and others. Ultimately, it would seem there was a general melee in which the respondent was assaulted by up to 19 or 20 men. Help was summoned from the hotel. There were three off‑duty police officers there. They came to the assistance of the respondent but had grave difficulty in stopping the attack.
As a result the respondent suffered quite severe injuries, including a fractured skull, lacerations, bruising and shock. He required hospitalisation and medical treatment and has ongoing disabilities. He sued his employer for damages, effectively in negligence. Liability was denied and in February 2001 the action was tried in the District Court before Muller J. The quantum of damages having been settled, the trial was confined to the issue of liability. On 12 March 2001 Muller J gave judgment for the appellant in the sum of $250,000 and costs.

The course of the trial and the grounds of appeal

At trial there were two issues before the Court. In the first place the appellant denied that on 13 September 1993 the respondent was acting in the course of his employment when his injuries were received, for either of two reasons. Firstly, it was said that 13 September was a rostered day off for the respondent and he was at the hotel only because he lived there, as well as being employed there, and he had been drinking there. Alternatively, it was contended that by going with the man Bedford off the hotel premises and out to the carpark in the process of removing an allegedly unruly patron from the hotel, the respondent was acting contrary to express instructions that security staff had been given, that on no account were they, in the performance of security duties, to leave the hotel premises. For either reason then, the appellants' contention at trial was that the respondent's receipt of injuries as a result of the assault upon him was his personal affair and that no duty of care was owed to him. Alternatively, it was argued, if the respondent was acting in the course of his employment and a duty of care was owed to him, the appellant did not by any act or omission breach that duty and alternatively, if it did, the respondent's injuries were contributed to by his own negligence.
I will not set the grounds of appeal out in these reasons. The first group upon which the appellant principally placed reliance allege errors of fact in the process by which Muller J came to the conclusion that the respondent was acting in the course of his employment at the time that his injuries were received because he was on duty and he was not instructed not to go outside the licensed area of the hotel in carrying out his duties. It is argued in the alternative that his Honour erred in his conclusion that the appellant was negligent by not preventing the practice of escorting patrons to the carpark (an aspect which the appellant contends, correctly, was not expressly relied upon by the respondent as a particular of negligence in his statement of claim) or by failing to employ one or more further security officers to assist the respondent by providing the necessary backup. Finally, it is contended that any such failure to provide additional assistance was wrongly found by Muller J to be causally related to the injuries he received. It is argued that there was no evidence that such assistance was required to remove Bedford from the premises and once the attack in the carpark commenced, no amount of additional assistance could reasonably be supposed to have prevented the injuries the respondent received.
In response to the notice of appeal the respondent filed a notice of contention seeking to support the decision of Muller J on grounds other than those relied upon by his Honour. It is a lengthy document and again it is unnecessary to set out its terms. It addresses arguments about the factual issues before the court of trial.
At trial the principal evidence for the plaintiff was that of the respondent himself. He spoke of the terms of his employment, particularly as a security officer. He said he had received his instructions as to the performance of his duties from a Mr Amundsen, the manager of the hotel, and he said that he was told that his responsibility included the hotel surrounds, particularly the carpark. In the event that a patron was to be escorted from the hotel he was shown how he should take them from the garden bar and down a pathway to the carpark where the public telephone was located.
The respondent said that he had been on duty on Friday 10 September 1993 when the patron Bedford challenged him to a fight. He responded by telling Bedford to leave and to talk to him again on the following Monday. Bedford was often troublesome in the evening at the hotel, particularly around closing time. The respondent agreed that Monday 13 September was his rostered day off and that he had been drinking at the hotel during the day and the early part of the evening. However, he said that Amundsen, who had been on duty in the bar, came to him at about 8pm, told him he was unwell and asked the respondent to take charge of security.
It was a quiet evening but later during the evening Bedford arrived at the hotel, approached him, asked him if he remembered the conversation of the previous Friday night and again offered to fight him. He removed Bedford by escorting him out of the bar and down to the carpark where the telephone was. He told Bedford to go home. Bedford attacked him without warning. They fought but shortly the two were approached by a large group of people who also commenced to assault him. Not only was he kicked and punched but he thought he was struck in the head with a rock or some other hard object.
The respondent called three witnesses. One was a Mr Meotti, a friend who was employed at the hotel in a similar capacity to the respondent. He confirmed that the man Bedford was one of a family group who were constant troublemakers, often aggressive and violent. He also confirmed the respondent's evidence about the instructions given by Mr Amundsen in relation to the performance of security duties.
A Ms Hemsley was called. She was the bar attendant on the night in question and again confirmed the evidence about the troublesome nature of the Bedford family as patrons at the hotel. She said that she had often seen those and other persons who were causing trouble escorted out of the hotel and down towards the carpark where the public telephone was located. She confirmed the circumstances in which the respondent came on duty at about 8pm. She saw Bedford arrive and speak with the respondent. She saw the two leave the bar. Bedford was then quiet. A Mr Martin, a chef at the hotel, gave evidence in the same terms as Ms Hemsley, of having regularly seen patrons escorted from the hotel in the way she described.
No member of the Bedford family was called by either party to give evidence and although something was made of that by counsel for the respondent in the course of argument, I do not think, for myself, that that was a circumstance capable at trial of giving rise to the inference that Bedford's evidence would not have favoured the appellant.
The principal witness for the appellant at trial was Mr Amundsen. He said that although a number of security personnel were available and were engaged at the hotel on Thursday, Friday and Saturday of each week, or when special functions were held there, only one person would have duties of that kind on other nights of the week, which were much quieter. Amundsen's evidence was that he had employed the respondent and instructed him about his security duties, including a firm instruction, which Amundsen said was enforced, that unruly patrons should not be taken beyond the boundary of the licensed premises and particularly not into the area of the carpark which was not well illuminated and was considered dangerous, presumably because there a security officer might be set upon in just the manner of the attack upon the respondent. Mr Amundsen confirmed that he was on duty on the night of Monday 13 September 1993 until he felt unwell and left. He said he then asked the bar manager, a Ms Spratt, to take charge. He did not ask the respondent to come on duty as a security officer.
Ms Spratt gave evidence that as bar manager she had security duties from time to time and she too had been told never to escort patrons off the licensed premises and specifically not to the area of the carpark by the public telephone because it was not well lit and was considered unsafe. She confirmed that she was on duty on the particular night and that she had been asked to take over by Mr Amundsen when he became unwell and left. She was not able to confirm that Amundsen had not asked the respondent to come on duty. She saw Bedford arrive at the hotel and saw him conversing with the respondent. She saw the two men leave the hotel in the direction of the carpark. Again she confirmed that at that time Bedford was not being troublesome.

Credibility issues

As I have noted, in respect of the issue whether at the particular time the appellant owed the respondent a duty of care, the case was fought upon the basis that the crucial questions were whether the respondent was on duty on the night in question and whether, if so, he should have been regarded as being "on a frolic of his own" because he was attacked in an area to which, because of its danger, he had been specifically warned not to go in the course of the performance of his duties. On these issues, it can be seen that there was a fundamental conflict in the evidence.
On the question whether the respondent was on duty, the conflict was simply between the respondent and Amundsen. On the question whether the attack occurred in an area to which the respondent had been instructed not to go, the conflict was between the respondent, Meotti, Hemsley and Martin on one side and Amundsen and Spratt on the other.
As to the first question, Muller J had regard to a number of issues. That it was a quiet night made it seem "improbable" to his Honour that Amundsen would have asked the respondent to assume his duties as a security officer, particularly given that the respondent had been drinking and it was his day off. If that had occurred, Muller J thought that it was "surprising" that Amundsen did not tell Spratt, who was left in charge of the licensed premises, what he had done.
His Honour was not impressed with the respondent as a witness, having regard to his demeanour and, as to the manner in which his injuries had been received, the difference between the account given in evidence and that given at a preliminary hearing of a criminal charge against Bedford arising out of the incident. His Honour thought that it reflected adversely upon the respondent's credibility as a witness that the two accounts were "materially inconsistent".
On the other hand, speaking generally, his Honour expressed the view that Amundsen had a much better demeanour, his evidence appeared thoughtful and reasoned, he was not dogmatic, he seemed prepared to make concessions when his memory failed him and, apart from one factor, his Honour said that he would have "unhesitatingly accepted the evidence of Amundsen in preference to that of the plaintiff on this critical issue of whether the plaintiff was asked to work on the night in question."
This brings me to the matter upon which his Honour's findings about credibility ultimately turned. Shortly after receiving his injuries the respondent claimed workers' compensation. The claim form was filled out by a person who Mr Amundsen thought might have been the hotel's office manager. It was signed by the respondent and witnessed by Ms Spratt. Upon the strength of that claim, as I understand it, liability was accepted and workers' compensation was paid. It was only later, it appears, indeed only shortly before the trial of the respondent's claim for damages at common law, that the defence was amended to raise the point that the respondent was not acting in the course of his employment when he received his injuries.
Further, the claim process involved the lodgement of a supplementary claim form, again apparently filled out by the hotel's office manager, in respect of the injuries received on 13 September 1993. This form was obviously lodged in support of the claim on the basis that the respondent was working when he was assaulted by persons not in the employ of the appellant. It appears that the principal object of the form was to give particulars of persons who might be witnesses to what occurred and particulars of the terms of employment. The form ends with the highlighted passage:
"Please sign if you recommend claim be accepted - if not, please provide statement".
The form is signed by Mr Amundsen on behalf of the employer and dated 23 September 1993.

The significance of the form

The significance of this signature was put to Mr Amundsen in cross‑examination, albeit not as directly as one might perhaps have expected. His evidence at AB 178 does, however, make it abundantly clear that when he signed the form he knew (as is indeed evident from its terms) that it was part of the process by which a claim for workers' compensation was being made on the basis that the respondent was a worker in the appellant's employ who was on duty at the time. Amundsen's evidence was that it incorrectly referred to a requirement that the respondent be on‑call to work on the basis of "24 hr availability to be called on". When asked to explain how the document came to be signed by him, Amundsen was unable to do so.
The impact of the document upon Amundsen's credibility was obvious and was dealt with by Muller J, who clearly accepted that Amundsen appreciated the significance of the form and its express recommendation that the respondent's claim for workers' compensation be accepted by the insurer of the appellant. His Honour said:
"When questioned on this issue he (Amundsen) said he had discussed the matter with a director of the defendant company and it had been agreed that the form should be signed and the plaintiff's application supported. Following the completion of the documentation, he said the plaintiff continued to be paid by the defendants who were indemnified by the insurance company. This conduct on the part of the employer was, in my view, an unequivocal acknowledgement that the plaintiff was on duty when he was injured. It cannot be anything else. It is true the employer may have had other motives in supporting the plaintiff's application but, if it did, those motives were not explored in evidence. … Senior Counsel for the defendants endeavoured to explain the defendants' conduct by saying it was the wrong thing to do and was simply a sensitive area in the defendants' case which ought to be weighed against and considered in the light of all the other probabilities. I do not believe it can be explained away in this fashion. Amundsen had the opportunity to explain why he had recommended acceptance of the claim but failed to do so."
Muller J regarded this evidence as being "powerful corroboration" of the evidence of the respondent that he was asked to take over security duties on the night in question and that he was injured in the course of his employment. His Honour so found.

Leaving the hotel

The other body of evidence which bore upon the question of the existence of the duty was that which was concerned with whether or not an instruction was given and if given, enforced, that in the performance of security duties the employee should not leave the licensed premises and in particular should not go to the area which was perceived to be dangerous, the ill‑lit carpark by the public telephone. As to that, as I have already noted, Muller J was not particularly impressed with the respondent as a witness and he said of Meotti that he would take care in assessing him as a witness because of his friendship with the respondent, with whom he had discussed the case, and because his evidence was "uncannily similar" to that of the respondent on all material issues. His Honour seemed more inclined to accept the evidence of Hemsley, although he said he was not "particularly impressed by her demeanour" but in the end, it was the evidence of Martin, with whom it appears Muller J was impressed, which carried the day on this issue, persuading the trial Judge to accept this body of evidence as opposed to that given by Amundsen and Spratt.
Muller J said he was satisfied that the respondent "was not instructed never to go beyond the licensed area in carrying out his duties", but he also observed that even if this had originally been the instruction, it was evident that it was not an instruction which was enforced having regard to the body of evidence accepted by his Honour to establish that, "the practice of escorting unruly patrons to the area of the carpark appears to have been quite common". In the final analysis then, Muller J found that the respondent was acting in the course of his employment and not on a frolic of his own when he received his injuries. The existence of the duty of care on the occasion in question remained intact.

The challenge to the findings of fact

In State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 160 ALR 588, perhaps the most recent case in which the High Court has had occasion to examine the functions of an appellate court in respect of an appeal concerned with the fact‑finding process performed by a trial Judge, the Court allowed an appeal and overturned the trial Judge who had relied heavily upon the demeanour of a witness giving oral evidence. The High Court held that was too fragile a base to support the Judge's conclusions of fact where there was a body of contrary evidence substantially corroborated by contemporary documents. A number of points were made:

(1) In a case where the appeal is by way of rehearing, an appellant may legitimately invite a re‑examination by the appeal court of findings of fact, including those made where credibility issues play a prominent part in the conclusions reached by the trial court.
(2) In undertaking that analysis the appellate court will be seeking to understand whether the findings of fact were fairly open to the trial Judge or whether, on the contrary, the conclusions reached and the process used to reach them demonstrate that a miscarriage of justice has occurred.
(3) In undertaking that analysis the appellate court is obliged to bear in mind that in trying the case the court at first instance possesses certain advantages which the appellate court can never possess. These are the advantages of having heard all the evidence in the context of the way in which the issues were raised and fought at trial, and having seen the demeanour of witnesses giving oral evidence. The appellate court must be careful not to second guess the trial Judge unless error in the fact‑finding process has demonstrably occurred.
(4) But in reviewing that process, the appellate court may not apply any particular formula of a restricted kind so as to reduce the occasions upon which it will be proper to depart from the fact‑finding process and the conclusions of fact adopted by the trial Judge.
(5) The task of the appellate court is always to see whether, for any reason, findings of fact should be reversed or a new trial ordered by reason of the failure of the trial Judge to consider all the evidence and to properly use his or her advantage as the Judge at first instance.
Against that background I can only observe that in this case, in my opinion, the appellant fails in its challenge to the fact‑finding process adopted by the trial Judge. His Honour expressed the view that some aspects relevant to that process, such as demeanour, the relationship between witnesses and the like, tended to draw him in a different direction from that which he ultimately took. On the question whether the respondent was on duty on the night in question, it seems to me that it cannot be said that the contemporary documentation was not of significant persuasive power. Either the supplementary claim form represented the true facts as they were known to Amundsen on behalf of the appellant, or his sworn testimony at trial was the truth, or was capable of causing the trial Judge not to rely upon the evidence of the respondent upon this issue of fact. If Amundsen's evidence was true, then, with the connivance of a director of the appellant, he had supported a deliberately false claim for workers' compensation made by the respondent for the purpose of committing a fraud upon the appellant's workers' compensation insurer.
Alternatively, of course, if the position was as the respondent testified, supported by the claim form, Amundsen's evidence at trial was probably not only untrue but deliberately false for the purpose of enabling the appellant to escape liability at common law. Amundsen certainly did not confess that to be the case and although he said the document he signed was incorrect, he provided no explanation for the falsity of the document and, in my view, it would be a grave step on the state of the evidence for a trial Judge to discard the claim form on this basis. One might speculate why Amundsen would participate in a false claim for workers' compensation and why he might falsely deny that he had caused the respondent to come on duty on that night. But in my opinion, the short answer to the point raised by the grounds of appeal which deal with this issue is that the fact‑finding process adopted by his Honour was well open to him and may not now be set aside on appeal.
Equally open to his Honour was his conclusion that the respondent had not been instructed, as Amundsen said, not to put his safety at risk by leaving the licensed premises and going into the darkened area of the carpark in the performance of his duties. In the end his Honour was persuaded to accept the respondent's evidence in this regard, not only by the other body of evidence to the same effect given by Meotti, but also by the fact that Hemsley, and particularly Martin, had on other occasions seen security officers behaving with troublesome patrons in just the way that the respondent said he did on the occasion in question. Again it seems to me that the finding of the trial Judge that on the occasion when he received the injuries for which he sued, the respondent was owed a duty of care by the appellant, may not be interfered with.
His Honour's finding that the respondent had not been instructed not to do as he did on the occasion in question in the course of performing his security duties went beyond the alternative conclusion also open to his Honour on the evidence canvassed in his reasons that, if any such instruction was given initially to the respondent, both the respondent and others, in the performance of security duties, habitually ignored it and nothing was done to prevent this practice, or to ensure that no security officer, including the respondent, performed their duties in this manner. The appellant concedes that a finding that the instruction was not enforced would have been open to the trial Judge. It says that had it been found that the instruction was given but not enforced, then although that would have opened the way to a finding of negligence against the appellant, the finding ought to have been that the respondent was guilty of contributory negligence in disobeying the instruction.
The trial Judge rejected the view that there was any contributory negligence in the circumstances as he found them to be, having accepted the evidence of the respondent. If, as I would hold, the findings made in accordance with that evidence are unassailable on appeal, then it is clear that the issue of contributory negligence falls away because, as the trial Judge put it, the respondent, within the scope of his instructions, "was simply escorting from the licensed premises a customer whom he believed might provoke a confrontation" with no reason to suppose that he would be set upon in the carpark by up to 20 others. It seems to me that there is nothing more to be said about this issue.

Was there negligence?

It does not seem to me that, having regard to the way in which the trial was conducted, the appellant was in any way taken by surprise in respect of the findings as to negligence. While it was not expressly pleaded as a particular of negligence in the statement of claim that no effective or reasonable steps were taken to prevent the practice of escorting patrons off the licensed premises by taking them to the phone box in the carpark, the case was fought on the basis that that was the practice, as his Honour found, that it was known by the employer to be dangerous, as appears effectively to have been conceded, and that the reasonably foreseeable danger was of an event of the kind which occurred to the respondent and caused his injuries. In those circumstances, the trial Judge found that the appellant was negligent in, at the very least, permitting the respondent to go about his duties alone, without backup in the form of the deterrent presence of one or more other security officers employed to assist, as the trial Judge put it, "by providing the necessary back‑up and deterrence in numbers".
The appellant argues that Bedford was not unruly or disorderly in the hotel, that his behaviour was not such as to give cause to believe that there would be violence outside and that it was a very quiet Monday night. Those things were true, as Muller J found, but as his Honour also found, Bedford and his brothers were known for troublesome behaviour at the hotel. There had been the incident on the previous Friday night which involved a threat to return on the Monday and pursue the offer to fight. Attendance by members of the Bedford family on any night of the week ought to have been anticipated. They were not barred from coming to the hotel. The respondent said that he told Amundsen of the threat made by Bedford when he was asked to come on duty on the Monday night and Amundsen admitted that before leaving the hotel to go home he saw Bedford come into the hotel, walk into the bar and commence to speak to the respondent. Nonetheless, he left the respondent to perform his duties alone.
In those circumstances it seems to me that his Honour's conclusion of negligence was fairly open to him. It was not a conclusion based upon a finding that a number of security officers were required at all times, but that in the particular circumstances it was negligent not to provide backup and support for the respondent.

Causation of harm

Nor do I think there is any merit in the appellant's argument that the failure to do so ought to have been held by the trial Judge not to have been established to be causally related to the receipt of the respondent's injuries. As I understand it, the argument is that the appellant was injured by at least 15 and up to 20 people in circumstances where, once the attack was fairly underway, the intervention of three off‑duty policemen could not prevent the receipt of the injuries. But the true question is whether the presence of one or more additional security officers might reasonably be expected to have deterred the commencement of the attack, not its continuation.
The decision of the High Court given recently in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 176 ALR 411 was relied upon. In that case the appellant was the owner of a shopping centre. Mr Anzil

was employed at a video store there. The shopping centre had a carpark which was dark unless properly lit at night. After closing the video store Mr Anzil walked to his car. The carpark lights were not on. He was injured when he was attacked in the carpark.

It was held by a majority of the Court that the appellant's duty as the occupier of the land did not extend to taking reasonable care to prevent physical injury to Mr Anzil as a result of the criminal behaviour of third parties, strangers to the appellant, simply because that occurred on its land. In those circumstances, concerning the ambit of the duty of care, quite different from those which were applicable in this case, it was held that although the appellant's omission to leave the lights on may have facilitated the crime, as did its decision to provide a carpark and Mr Anzil's decision to park there, the failure to leave the lights on could not be regarded in any commonsense way as a cause of the injuries received. It is to be emphasised, however, that the decision of the Court as to causation was inextricably bound up with its view of the question whether the appellant owed any duty of care to Mr Anzil to control the conduct of the third parties who attacked him. In my opinion the case is distinguishable from this.
Once the conclusion was reached here that it was reasonably foreseeable that the respondent would be in danger in the ill‑lit carpark, in that he might be subjected to violent attack by persons who presumably knew of his role as a security officer and who were acting under cover of darkness and with the assurance of the weight of their numbers, then I can see no difficulty in concluding that the failure to take adequate and reasonable steps to protect the respondent from that danger by making it clear to him that he must not go into the carpark at night in the performance of his security duties, or if he was to do so, by providing some backup and deterrence to an attack to the extent that that was reasonably possible, was causally related to the injuries received in an attack of a kind which was reasonably foreseeable. In my opinion, for those reasons, the appeal should be dismissed.
ANDERSON J: This action arises out of injuries sustained by the respondent when he was set upon by a large group of people in the carpark of the Crossing Inn Hotel at Fitzroy Crossing on Monday night, 13 September 1993. The appellants were the owners of the hotel and employed the respondent to work as a yardman in the mornings and as a "security person" in the late afternoon and evenings.

There was a dispute at trial as to whether the respondent was on duty when he sustained his injuries. The respondent was not usually required to work on Mondays, and it was the appellants' case at trial that the respondent was at the hotel as a customer and not as an employee. It was accepted that, unless the respondent actually was on duty when he was injured, his claim could not succeed. It was not the respondent's case that any relevant duty of care that may have been owed to him as a customer of the hotel had been breached.
There was evidence that the bars were usually very quiet on Monday evenings and there would be only the bar supervisor, Ms Spratt, and one bar attendant serving a handful of regular patrons and the few guests who might be staying at the hotel. Mr Amundsen, the hotel manager, would be on duty keeping an eye on things and if any security matter arose, he would attend to it. No other staff were required, ordinarily.
The trial Judge found that, although it was not a working day for the respondent, he was in fact on duty at the material time, because at about 8 pm that Monday evening he had been expressly requested to go on duty by Mr Amundsen, who had been bitten by a dog and was feeling ill, and wished to leave the premises to go home. The assault on the respondent happened an hour or so later, before closing time, which was 10 pm. Although the finding by the trial Judge that the respondent was on duty at the material time was challenged by the appellants as being against the evidence, I would not disturb the finding. There was uncontested evidence that the appellants made payments of workers' compensation to the respondent for some four years after the incident in accordance with the requirements of the Workers' Compensation and Rehabilitation Act 1981. The payments amounted to more than $103,000. The appellants must be taken to have fully understood that there was no obligation to make the payments unless the respondent was acting in the course of his employment when he was injured and the payments therefore cannot really be explained except on the basis that the appellants accepted that the respondent was acting in the course of his employment when he was injured. That evidence provided powerful corroboration of the respondent's own evidence that he was on duty at the material time at the express request of Mr Amundsen.
It appears to have been accepted by the trial Judge that the attack that was made upon the respondent had its origins in an exchange between the respondent and a particular hotel patron by the name of Keith Bedford, which had occurred a few days before. I would, for myself, very much doubt this. There must have been more going on between these two men than that. The exchange in question really was rather innocuous. The respondent's evidence about it is as follows:
"Yes. The incident occurred on a Monday, 13 September 1993?‑‑‑That's right.
Could you tell us where you were on the previous Friday?‑‑‑I was working security inside the hotel. It was getting near closing and I was walking around cleaning up all the tables, picking up empty cans and emptying ashtrays and wiping tables down.
Did anything unusual happen?‑‑‑Yes. While I was in the pool room bar I was approached by Keith Bedford. He said that a girl Tanya Carter had pushed him or done something to him and he said, 'I don't fight girls. Would you like to take her place?'
So what did you do?‑‑‑I just replied to him that it wasn't acceptable behaviour in the pub and come back and see me on Monday.
What happened next?‑‑‑They left."
The respondent gave evidence that he reported the Friday night incident to Mr Amundsen and Ms Spratt. This was denied by Mr Amundsen (AB 190A ‑ B) and Ms Spratt gave evidence that she could not recall it. The trial Judge appears to have been satisfied that the incident was reported to them, although what there was to report, other than an invitation to fight which came to nothing, is not easy to comprehend. I shall say a little more about this later.
There was evidence that Keith Bedford and his two younger brothers, Stuart and Timothy, were, at that time, regular customers. They were described by witnesses as pleasant and easy to deal with unless they had been drinking, in which case they might become truculent, loud and quarrelsome. The respondent said that Keith Bedford had been troublesome toward him on occasions, but that he had never had any fights or physical encounters with him. The respondent was a big man, much bigger than Keith Bedford. One of his soubriquets was "Bulldog". There was evidence that the respondent had a good deal of experience working as a doorman or "bouncer" or crowd control officer at other places, including nightclubs and there was evidence that he liked to be called "Doorman" by his friends and acquaintances.
The Monday night in question appears to have been typical. The bars were not busy. A young female, Ms Hemsley, was the only bar attendant serving all three bars. There was evidence that there were only a few patrons and some hotel guests in the garden bar. The trial Judge accepted Ms Spratt's evidence that there was no‑one in the public bar or the lounge bar (sometimes called the pool bar) and that all was quiet. Ms Spratt was thinking of closing the bars early.
The respondent's evidence was that about 8.30 pm Stuart Bedford and Timothy Bedford came into the lounge bar and began to play pool. The only incident was an argument about a pool cue which was soon settled. According to the respondent, he had taken over from Mr Amundsen by this time. At about 9 pm, Keith Bedford arrived and, according to the respondent, "came straight up to me" and the following took place:
"Were you alone or with somebody?‑‑‑I was on my own.
What happened next?‑‑‑Keith come up to me and he said, 'Do you remember the conversation on Friday night?' and I said, yes, I did.
What happened next?‑‑‑He asked me to wait for him because he had to go and shift his car, so off he went to shift his car, so I just stayed in the garden bar.
What happened after that?‑‑‑When he come back he walked in the garden bar and he said, 'Are you ready for a fight?' and I said, 'No, I'm not going to fight you,' and as I was walking towards him I put my arm on his shoulder, put my hand on his shoulder and started walking him down the steps, talking to him as I was going about his attitude in the hotel and why would he particularly want to fight me, he's only a third of my size, and walked him out towards the phone box.
Why was it that you were walking him out to the phone box?‑‑‑Well, it was obvious he was there to cause trouble. He was going to start a fight with me. It was never my intention to fight him.
Had he consumed any alcohol, to your knowledge?‑‑‑I can't say that, no.
No. Anyway, you say you had been seated at one of these barrels in the beer garden?‑‑‑That's right.
When he arrived he was there - he went away and then came back?‑‑‑Yes.
Ultimately you had these discussions and walked him towards the carpark?‑‑‑That's correct.
What happened next?‑‑‑I was still talking to him about his attitude in the hotel and why didn't he go home and I turned around to face him and said, 'Why don't you go home, Keith? If you're going to fight me, you're going to get hurt. Just go home.' I had me hands up like this.
You are indicating, for the transcript, both hands in the air, open palms?‑‑‑That's correct."
His evidence was that Keith Bedford then punched him in the face and a fight started between the two. This was either in or near the carpark, beyond the boundaries of the licensed premises. The respondent's evidence was that he got the better of Keith Bedford, but "then people just started belting me from everywhere". He said he was punched and kicked and hit, including on his head and in his face with bricks and other heavy objects, and eventually lost consciousness. There was evidence that the hotel chef and some of the people who had been drinking in the hotel went to his assistance, but were unable to control the mob of people who were attacking the respondent. There was evidence that amongst the people who went to the respondent's assistance were three police officers visiting Fitzroy Crossing who were guests at the hotel. Mr Amundsen was called and he attended the scene, but could not stop the fighting. The visiting police officers went back to their rooms and put on their riot gear, including helmets and batons. By this time, the local police had arrived and the two lots of police officers eventually were able to stop the melee and disperse the attackers. A number of people were charged with criminal offences and received prison sentences.

The respondent sustained multiple head injuries and a range of other injuries in respect to which he claims to be entitled to an award of damages against the appellants as his employer.
By his statement of claim, the respondent alleged breaches of the contract of employment, breaches of the employers' common law duty of care and breaches of the statutory duty imposed on employers by s 19 of the Occupational Health and Safety Act 1984.
The cause of action under the Occupational Health and Safety Act was not pursued. In his judgment the trial Judge noted that it seemed to him that only the cause of action in tort for breach of the common law duty of care was pursued, but I will take it that the cause of action for breach of the contract of employment was not abandoned. Nothing really turns on this because the particulars of breach of contract and the particulars of breach of the common law duty of care are identical. The relevant particulars are:
"The Defendants, their servants or agents:-
(a)Failed to take all reasonable precautions for the safety of the Plaintiff in that:-
(i)with the knowledge that there was frequent violence and fighting by patrons in the Hotel, failed to employ adequate security staff:
(ii)with the knowledge that the Plaintiff had been drinking alcohol on his night off instructed him to resume his duties as a hotel security officer;
(iii)failed to ban troublesome patrons from the Hotel.
(b)Exposed the Plaintiff to risk of damage or injury of which they knew or ought to have known in that:-
(i)with the knowledge that there was frequent violence and fighting by patrons in the Hotel, failed to employ adequate security staff;
(ii)failed to ban troublesome patrons from the Hotel.
(c)Failed to provide a safe system of work for the Plaintiff in that:-
(i)failed to warn the Plaintiff of the potential danger when dealing with known troublesome patrons of the Hotel;
(ii)failed to ban known troublesome patrons from the Hotel to minimise the incidents of violence;
(iii)failed to employ adequate security staff to control the troublesome patrons of the Hotel without the risk of injury to the Plaintiff;"
As I understand the trial Judge's judgment, he rejected the respondent's case insofar as it rested on these pleadings. He held that there was no causal connection between the events by which the respondent was injured and the respondent's consumption of alcohol earlier in the day when the respondent was off duty. Insofar as the case rested upon that allegation, the case was not made out. There was no finding that it was negligent to have only one security person at this hotel at 9 pm on Monday nights in order to control "frequent fighting and violence", as alleged in particular (a)(i). There was no evidence of violent or disorderly behaviour on Monday nights. As I have said, the evidence was that Monday nights were always very quiet and this Monday night was no different. Insofar as the case rested upon the allegation contained in this particular, it failed. The trial Judge held that it was not negligent of the appellants not to ban or bar Keith Bedford from the hotel, which is the proposition underlying particular (a)(iii). Insofar as the respondent's case rested on this allegation, it failed. Particulars (b)(i) and (b)(ii) simply repeat particulars (a)(i) and (a)(iii) and they therefore also failed. Particulars (c)(ii) and (c)(iii) simply repeat particulars (a)(iii) and (a)(i) and they also therefore failed. The allegation in particular (c)(i) that the defendants were negligent in failing to warn the plaintiff "of the potential danger when dealing with known troublesome patrons of the hotel" was not pursued. It is quite obvious that the respondent required no warning as to what might be involved in dealing with "troublesome patrons" and, anyway, there is no evidence that at the material time Keith Bedford, or the other people who joined in the attack upon the respondent in the carpark, were "troublesome patrons" in any relevant sense. There was no evidence that Keith Bedford had been drinking that night or was misbehaving in the sense that he was acting violently, or in a quarrelsome or disorderly manner in the hotel. The evidence was to the contrary.
In my opinion, as the respondent failed to make good any of the particulars of breach of contract or breach of duty pleaded in the statement of claim, and, as there was no application to amend the pleadings, the action ought to have been dismissed. Instead, the trial Judge upheld the claim on a basis not pleaded. He said this:
" … I do find that, given the anticipated presence of Keith Bedford and his behaviour on the preceding Friday night and in the past, the defendants ought to have engaged an additional person or persons on security duties that Monday night. In my view the defendants ought reasonably to have foreseen the danger of a fight erupting and unreasonably failed to protect the plaintiff from injury by employing one or more security persons to assist the plaintiff by providing the necessary backup and deterrence in numbers."
This can only be a finding that, because of what had happened on the Friday night between the respondent and Keith Bedford, it was negligent of the appellants not to bring in extra security staff on Monday night for the particular purpose of protecting the respondent from attack by Keith Bedford, or from an attack instigated by Keith Bedford.
I am afraid I cannot accept this proposition. I must say that I find it very difficult to accept that the brief exchange between the two men in the terms testified to by the respondent should have forewarned the appellants, as reasonable employers, that the events which happened on 13 September might happen. The relevant "behaviour" of Keith Bedford was that he left the hotel when his offer to fight the respondent was declined and when asked to do so by the respondent. He made no threat and, on the respondent's own evidence, gave no indication that he intended to accept the respondent's invitation to come back and see the respondent, either alone or with others. But, anyway, Monday was the respondent's day off, which is an important point that appears, in the end, to have been lost sight of by the trial Judge, if I might respectfully say so. There was no duty on the part of the appellants to provide the respondent with bodyguards - certainly not while he was off work. When, then, did the duty arise in the appellants to "have engaged an additional person or persons on security duties that Monday night", to use the trial Judge's words? If it arose at all, which in my opinion it did not, it could not have arisen until about 8 pm on the Monday night, when Mr Amundsen became too ill to carry on and asked the respondent to take his place. The trial Judge appears to have held that the duty arose as soon as the Friday night incident was reported to Ms Spratt and Mr Amundsen and this, with respect, cannot be right if Monday was to be the respondent's day off.
It is not suggested that calling the respondent into service at short notice in the circumstances as they existed on the night in question was of itself an act which exposed him to any greater danger than he already was in, that danger, such as it was, being that, at some stage, Keith Bedford might accept the respondent's invitation to "come and see" him with a view to having a fight. There was no nexus between that danger, if it was really a danger, and the master/servant relationship. It appears to have been an entirely personal matter, the resolution of which by a fight did not depend, or is not shown to have depended, on whether the respondent was on or off duty or whether he was at the hotel or somewhere else.
With due respect, there are other reasons why there is an air of unreality about the proposition that the appellants were negligent or in breach of their contract of employment by not providing the respondent with the assistance of "one or more security persons" on this Monday night in this hotel. Who the "one or more security persons" might have been was never really addressed at trial and is a question the trial Judge did not answer. Fitzroy Crossing is a small, isolated town, some 1,800 kilometres north of Perth in the Kimberley region. It is in sparsely populated cattle country. The evidence was that the hotel was one of only two hotels in the town. There was no evidence that there was a floating population of "security persons" in the town. It is true that there was evidence that additional staff were engaged on the busier nights and for special functions, such as when there was a rodeo, or a funeral, and that these casuals would assist with security matters if necessary. But these casual staff were particular people. It was not a matter of telephoning a security firm to send around a couple of professional crowd controllers.
One of the persons who had done security duties at the hotel while the respondent was there was Jason Miotti. It seems that initially both the respondent and Miotti, who were travelling about together, obtained employment at the hotel as yardmen and to do security duties. At busy times, usually after pension day which was Thursday, and on Friday and Saturday nights, both of them would be on duty and available to attend to security matters if they arose. Mr Amundsen would also attend to security matters and there was some evidence that one of the bar attendants, who went by the name of Fruitbat, had also assisted on some occasions when there was disorderly behaviour. Ms Spratt gave evidence that sometimes, on very busy occasions, "a couple of the Aboriginal boys would help with the security". She added that which of them was available depended on who was sober. Ms Spratt was sometimes left in charge of the hotel when Mr Amundsen had to be away and she, too, attended to security matters when necessary. Mr Amundsen said she was better at it than many of the men who he had engaged for the purpose over the years during which he had been manager.
This seems to me to be the extent of the evidence relating to the availability of "extra" security staff. As to these people, Ms Spratt was on duty on the night in question with Mr Amundsen. There was no evidence that at 8 pm on that night any of the others, or anyone else for that matter, was available to be brought on duty at short notice in case Keith Bedford should come to the hotel looking to have a fight with the respondent. Miotti was no longer available. He gave evidence that he had left the employment of the hotel some two weeks previously. There was no evidence as to the whereabouts or capacity of Fruitbat at that time. It would be absurd to suggest in the circumstances that Mr Amundsen should have stayed behind to protect the respondent from Keith Bedford. If he had remained on duty, the respondent would not have been required to be on duty. There was no evidence of the availability of the "Aboriginal boys" or of their capacity if available to deal with the particular problem which the trial Judge appears to have found the appellants ought to have foreseen, namely, that Keith Bedford, himself of Aboriginal descent, might come back to the hotel, lure the respondent out to the carpark and orchestrate a gang attack upon him.
Finally, in my respectful opinion, the evidence does not support a finding that the events by which the respondent was injured probably would not have happened if "one or more" additional security persons had been on duty. The attack upon the respondent was made in the carpark, not on the licensed premises, and the perpetrators appear to have numbered as many as 20. It was quite obviously a preconcerted attack which a number of people, including Mr Amundsen, the hotel chef and three visiting police officers, were not able to stop. None of the witnesses who were present in the hotel on the night in question had any inkling that the events which happened were about to happen. The respondent did not foresee or suspect that a mob was outside in the carpark waiting to attack him, and the trial Judge held that he could not reasonably have foreseen that this might happen. There is no evidence that any such event had happened before. Assuming that Fruitbat had been put on to serve behind the bar instead of Ms Hemsley and assuming that a third person had been engaged for the evening as some kind of backup, the fact is that those who witnessed the conversation between Bedford and the respondent neither heard nor saw anything untoward. Bedford was lawfully on the premises. The two men appeared to speak calmly together. There were no raised voices or threats. I do not think it is self‑evident that a bar attendant, having seen this encounter between the two men, would or could have taken any step by way of crowd control or the like in order to prevent the respondent being injured in the way that he was. There was simply nothing which would have caused him to do so. Likewise, if there had been a third person engaged to carry out security work that night, I do not see why he would have seen the need to follow the two men outside, nor can I imagine how it would have made the slightest difference if he had.
The trial Judge thought that the presence of one or two additional security staff on duty that night might have acted as a deterrent. With respect, this is speculation. It is an opinion not based on evidence and I am not able to share it. Furthermore, it involves the unstated proposition that, at all times after the Friday night exchange between Keith Bedford and the respondent, the appellants were duty‑bound to have a deterrent force of security staff in and around the hotel whenever the respondent was on duty because Keith Bedford might come back and attack him. That seems to me to be plainly unreasonable.
These matters were not really argued out at trial and this is, no doubt, because it was not pleaded against the appellants that, in consequence of the exchange between the two men on the Friday night, the appellants should have foreseen that Keith Bedford was intent on having the respondent bashed and therefore should have foreseen the events which actually happened.
Time was taken at trial on the issue whether the respondent had been instructed by Mr Amundsen not to escort troublesome patrons as far as the carpark. Insofar as this was an issue, it was decided against the appellants. The trial Judge was not persuaded that this instruction was given to the respondent and so was not persuaded that his action in walking Keith Bedford to the carpark was an act of disobedience. In my opinion, the point is only relevant to the question whether, accepting that the respondent was on duty at the material time, he was acting outside the course of his employment. I see no reason to disturb the trial Judge's view of the evidence in respect to this issue, nor do I see it as being material to the primary issue of negligence. There is no allegation in the statement of claim, and so far as I can see it was not the respondent's case, that the appellants were negligent in failing to instruct the respondent not to go into the carpark in the course of his duties. Anyway, it seems to me that the issue is of no significance when the evidence as a whole is properly understood. The respondent's loss did not arise from escorting a drunken and troublesome bar patron off the premises. The loss arose from what appears to have been a well‑organised ambush, which, when it occurred, seems to have had nothing whatever to do with maintaining order in the hotel.
I would allow the appeal on the last ground, that is, ground 8, which essentially pleads (although perhaps not exactly in these terms) that there was no basis upon which to find that the failure to engage additional security staff on the night in question caused or contributed to the respondent's loss.
Before leaving this case, I wish to say that, in my opinion, it is of the utmost importance that cases such as this be tried on the pleadings. The duty of care owed by an employer to an employee can be stated shortly and in general terms as being to take reasonable care for the safety of the employee. The particular way in which an employer is alleged to have failed in that duty is the vital question for the trial Judge. The rules require a plaintiff to specify with particularity the precise way in which he alleges that the duty to him was breached. If he does not do so, he may be ordered to do so. If he does do so, the case so particularised is the case which must be proved at trial. Courts of trial should insist that this fundamental rule be adhered to. A plaintiff who makes the serious allegation that he has been gravely injured by the defendants' breach of duty must be held to the particulars of breach which he delivers. As Warrington J said in In re Wrightson, Wrightson v Cook [1908] 1 Ch 789 at 799 (which was a breach of trust case), the court does not conduct a "roving inquiry … [and] … the plaintiffs are not entitled to relief at the trial, except in regard to that which is alleged in the pleadings and proved at the trial", as otherwise the rules requiring particulars to be given "would be ridiculous and absurd".
The plaintiff in this case was the victim of a gang attack which appears to have been unprovoked, inexplicable and quite irrational and, on the face of it, not the fault of the employer. The respondent was seriously injured and that is most unfortunate, to say the least. He did not deserve to suffer the injuries which he sustained, nor the consequences of them. But in order to make good a claim that it was the fault of the employer, he was required to state in his pleadings, and to prove, the material facts on which he relied to establish that fault. Failure by the plaintiff to prove the case set out in the statement of claim generally entitles the defendant to judgment. That is what should have happened in this case. If, after the trial is concluded, it is seen that the pleadings do not reflect the true issues actually contested at trial, or the true nature of the cause of action or defence, the pleadings may be amended. On the application to amend, all questions of prejudice can be addressed and conditions can be imposed to avoid injustice, including that the case be stood over to enable further evidence to be called. In my opinion, the court of trial is not authorised to simply ignore the pleadings and give judgment based on matters not pleaded either originally or by amendment unless, at the very least, it is absolutely clear that the grounds on which the verdict is based actually have been fully litigated.

EINFELD AJ: The facts in this matter are set out in the reasons for judgment of the other members of the Court. There is no doubt that the pleadings in the case before the District Court were less than satisfactory to define in writing the precise issues that were in the event fought at trial. I agree with Anderson J about the desirability in principle that cases be fought on the pleadings. But experience dictates that this is often not the case. Cases at trial, and even more so on appeal, often come to be fought on issues which the parties desire to agitate but which are at best only peripherally raised in the pleadings.
In the circumstances, it is not the task of an appeal court to re‑try the case as it should strictly have been contested but to consider whether in deciding the case, the trial Judge made one or more errors of law or fact as defined by the authorities. One error could be that the case was decided on a matter not litigated. This case is not in that category as seems to have been accepted by the appellant.
My reading of the transcript in this case suggests that the case was fought on the issues of fact generally identified by the learned trial Judge in his reasons for judgment. My consideration of these reasons lead me to conclude that his Honour addressed and resolved these issues sufficiently and fairly as to require the conclusion that the findings of fact were reasonably open to him.

I agree with Murray J that the appeal should be dismissed for the reasons given by his Honour.