Newcastle Entertainment Security Pty Ltd v Simpson

[1999] NSWCA 351

Reported Decision: (1999) Aust Torts Reports 81-528

New South Wales

Court of Appeal

CITATION:	Newcastle Entertainment Security Pty Limited v Simpson [1999] NSWCA 351
FILE NUMBER(S):	CA 40107/97
HEARING DATE(S):	09/04/99
JUDGMENT DATE:	27 September 1999
PARTIES :	Appellant: Newcastle Entertainment Security Pty Limited First Respondent: Peter Simpson Second Respondent: International Facility Corporation (Newcastle) Pty Limited Third Respondent: Michael Coppel Promotions Pty Limited
JUDGMENT OF:	Mason P at 1; Sheller JA at 18; Beazley JA at 30

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	70033/95
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ

COUNSEL:	Appellant: J Maconachie QC/ D O'Dowd First Respondent: A Fennell Second Respondent: I G Harrison SC Third Respondent: P Garling SC
SOLICITORS:	Appellant: Moray & Agnew First Respondent: Writer Ryan Boesen Second Respondent: Henry Davis York Third Respondent: McLachlan Chilton
CATCHWORDS:	Negligence; Damages for injury whilst attending rock concert; Liability of Centre manager, concert promoter and security firm; Terms of hiring contract; Dancing and crowd surfing; Non-delegable duty of care
ACTS CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5
CASES CITED:	Kondis v State Transport Authority (1984) 154 CLR 672 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Northern Sand Blasting Pty Limited v Harris (1997) 188 CLR 313 Pickard v Smith (1861) 10 CB (NS) 470, 142 ER 535 Meyers v Eastern (1878) 4 VLR 283 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33 Jones v Dunkel (1959) 101 CLR 298 Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Robinson v Balmain New Ferry Co Ltd [1910] AC 295 Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 Price v Easton (1833) 4 B&Ad 433 [110 ER 518] Dunlop Pneumatic Tyre Co Ltd vSelfridge & Co Ltd [1915] AC 847 Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43 Trident General Insurance Co Limited v McNiece Bros Proprietry Limited (1988) 165 CLR 107 Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Rylands v Fletcher (1866) LR 3 HL 330; [1861-73] All ER 1 Pendal Nominees Pty Limited v Lednez Industries (Australia) Ltd (1996) 40 NSWLR 282 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Schenker & Co (Australia) Pty Ltd v Malpas Equipment & Services Pty Ltd [1990] VR 834 Suttor v Gundowda (1950) 81 CLR 418 Gamser v Nominal Defendant (1977) 136 CLR 145 Moran v McMahon (1985) 3 NSWLR 700
DECISION:	Appeal Dismissed; Cross-Appeal Dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40107/97
DC 70033/95

MASON P
SHELLER JA
BEAZLEY JA

Monday, 27 September 1999


NEWCASTLE ENTERTAINMENT SECURITY PTY LIMITED v PETER SIMPSON & ORS





The first respondent (plaintiff below) was awarded the sum of $39,800 (including general damages of $22,000) against the appellant for dental injuries he received on 11 November 1994 when he attended a rock concert at the Newcastle Entertainment Centre (the Centre). The plaintiff was in a mosh pit and as he was trying to leave the mosh pit found himself involuntarily hoisted up by members of the crowd and passed over their heads, an activity known as crowd surfing.

The plaintiff sued the Centre manager, the security firm and the promoter in negligence and was successful only against the security firm. The trial judge held that while the Centre manager owed a duty of care to the plaintiff, it behaved reasonably and should not and could not have taken any additional steps to fulfil its obligation to the plaintiff. It had fulfilled its obligations by relying on the expertise of the security firm.

In the court below, the plaintiff was unsuccessful against the other respondents to this appeal, each of who was a defendant at trial. The third respondent was the promoter of the concert and the second respondent was the operator and manager of the Centre.

The security firm appealed against the trial judge’s decision that they were liable in negligence to the plaintiff (first respondent) and sought to indemnity against the Centre manager and the promoter on the basis that each owed the plaintiff a non-delegable duty of care.

HELD

Beazley JA (Mason P and Sheller JA agreeing):

In dismissing the security firm’s appeal, that the security firm owed and breached its duty of care to the plaintiff.

Mason P:

There was no proper basis for imposing a non-delegable duty upon either the Centre manager or the promoter. Neither had exclusive control over the premises on the night in question. The centre manager had bargained away its right to exclusive control.

Crowd surfing was a potentially dangerous activity, but probably no more so than an established contact sport like rugby. It is not enough to characterise the permitted activity as one which could result in injury unless properly managed. This could be said of practically any activity, including activities that no one would suggest enlivened a non-delegable duty.

Therefore, the second and third respondents were not liable to the plaintiff/first respondent.

Sheller JA:

Dancing by jumping up and down and crowd surfing performed by enthusiastic youngsters in a large crowd involves risks, but cannot be described as carrying an inherent risk of injury, or as hazardous in the sense that the word was used to describe activities of the sort that the Burnie Port Authority’s independent contractor was engaged in. There is a risk of occasional injury, usually related to the manner of performance.

Absent such inherent risk of injury in the activity itself, there was no other basis upon which non-delegable duty of care to participants could be imposed upon the promoter or operator.

Beazley JA (dissenting):

Mosh dancing and crowd surfing were promoted as part of the evening’s entertainment and given the nature of those activities, the Centre manager and the promoter each owed a non-delegable duty of care to the plaintiff.

ORDERS

The appeal and plaintiff’s cross-appeal are dismissed.

The appellant to pay the costs of the other parties to the appeal.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40107/97
DC 70033/95

MASON P
SHELLER JA
BEAZLEY JA

Monday, 27 September 1999



NEWCASTLE ENTERTAINMENT SECURITY PTY LIMITED v PETER SIMPSON & ORS

JUDGMENT

1    MASON P: I have had the advantage of reading the judgment of Beazley JA.

2    I agree with her Honour’s reasons for concluding that the security firm’s appeal, including its appeal based upon cl 6.4 of the hiring agreement, should be dismissed.

3    I respectfully disagree on the issue of non-delegable duties of care.

Did the Centre Manager and the Promoter owe non-delegable duties of care?

4    In my view the relevant principles are difficult to discern and problematic in their present application.

5    In her judgment, Beazley JA refers to the statements of general principle in Kondis v State Transport Authority (1984) 154 CLR 672 at 684 (per Mason J, Deane and Dawson JJ agreeing) and in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 at 550-551 (per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

6    The High Court returned to the issue in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313. It is not easy to isolate the propositions established in that case especially on the matter of non-delegable duties (see Swanton and McDonald, “Landlords’ liability for injuries caused by the defective condition of the premises” (1998) 72 ALJ 345 at 347-8).

7    For some of the justices, the conclusion that the landlord was liable in negligence to a severely injured child when she touched an outside tap turned upon the landlord’s duty at the inception of the tenancy.

8    There was an alternative claim against the landlord based upon the act of casual negligence of a qualified electrical contractor engaged by the landlord (during the tenancy) to repair a faulty stove element after complaint by the plaintiff’s mother. It was contended that the landlord owed a non-delegable duty of care to the plaintiff stemming from the principle expounded by Mason J in Kondis. Only three of the justices (Toohey, Gaudron and McHugh JJ) accepted this contention. Four justices (Brennan CJ, Dawson, Gummow & Kirby JJ) rejected it:

(a) Brennan CJ rejected a non-delegable duty. He held (at 333) that the fact that negligence on the part of the licensed electrician might foreseeably cause injury was not enough to impose a non-delegable duty of care on the landlord. Nor did the relationship between the landlord and the tenants and their family. The repair of the stove did not carry any inherent risk of injury unless it were negligently done.

(b) Dawson J also rejected a non-delegable duty. He observed (at 345) that an employer’s duty to provide a safe system of work for employees was non-delegable because the employer has the “sole control” over the system to which he submits the employee and the employee must put up with it. His Honour noted Mason J’s doubts (in Kondis at 688) as to whether the same principle applied to the occupier of a house for injury caused to an invitee by the negligence of an independent contractor. Dawson J held (at 345-6) that an occupier is not generally subject to a non-delegable duty of care. Nevertheless, he qualified this proposition by observing that decisions commencing with Pickard v Smith (1861) 10 CB(NS) 470, 142 ER 535 established that a duty to take care was personal or non-delegable where the act which occasioned the injury was “the very one which the contractor was employed to do” . This duty, he observed, was expanded in Pickard “by a parity of reasoning, to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned” (quoting Pickard at 480). It was this aspect of the rule laid down in Pickard which had led to the imposition of the further requirement of control or assumption of responsibility on the one hand and vulnerability on the other, in order to contain the concept of the non-delegable duty of care within appropriate limits. His Honour continued (at 346-7):


The duty of a landlord to exercise due care in maintaining premises in a state of repair is not of a kind which suggests that the duty is non-delegable. If control is the touchstone, then it may be observed that it must mean control of the premises rather than control over the person as in the case of an employer’s relationship with his employee. The control of a landlord over the premises is limited in two respects. First save to the extent that he exercises his right to enter and inspect, he is dependent upon the tenant to draw defects to his attention. Secondly, where the safety of the premises depends upon work which must be entrusted to persons possessing special skills , as in the present case, there is no real element of control on the part of the landlord over the manner in which the work is to be done . Both the landlord and those occupying the premises are equally dependent upon the contractor for the exercise of due skill and care and, provided that a qualified contractor whose competency the landlord has no reason to doubt is engaged, it is not apparent that the landlord should bear personal responsibility for the contractor’s negligence.

Moreover, where an occupier, who exercises a greater degree of control over the premises than does a landlord, has not more than a duty to take reasonable care to avoid risk of injury to persons lawfully on the premises, it would be anomalous, to say the least, to impose a more stringent duty upon the landlord. (emphasis added)


It is apparent that the facts of Northern Sandblasting did not attract the principle in Pickard v Smith according to Dawson J, who held (at 347) that the appellant’s duty to take care in relation to the repair of the stove was discharged by the engagement of a qualified electrical contractor.

(c) Toohey J found that there was a non-delegable duty. His Honour emphasised that foreseeability itself would not generate such a duty of care (at 350-1). Nevertheless he held that the landlord could not escape liability merely by establishing that a qualified electrician was engaged to carry out the repair work. As I read his Honour’s reasoning (esp at 351-2) the critical fact was that the landlord had, at the request of the tenant, undertaken to have the faulty stove repaired and had engaged an electrician for that purpose. (This was the principle stemming from Pickard to which Dawson J had adverted.) A particular application of that principle, cited by Mason J in Kondis (at 685) and by Toohey J in Northern Sandblasting (at 351) was Meyers v Eastern (1878) 4 VLR 283 where a landlord, at the solicitation of his tenant the plaintiff, had undertaken to renew the roof of his house. For reasons developed at 352-5 Toohey J held that Burnie’s requirements of “control” and “special dependence or vulnerability” were satisfied and that there were no policy reasons which precluded the imposition of a non-delegable duty.

(d) For Gaudron J, the existence of a non-delegable duty in relation to electrical repairs made during the currency of a tenancy depended upon the special danger created by the existence of dangerous or potentially dangerous activities or substances. As I read the judgment, her Honour (at 359-361) accepted that the relationship that exists between occupier and invitee satisfies the “control” requirement which is a central element of a special or non-delegable duty. A landlord has that control at the beginning of a lease. Nevertheless Gaudron J would not have imposed a non-delegable duty in relation to a task such as electrical repairs which require the engagement of an apparently competent electrician except in circumstances where the occupier or landlord engaged the electrician to carry out work on premises on which there were dangerous or potential dangerous activities or substances (see at 361-3). Gaudron J did not need to apply these principles to the facts in question, because she dismissed the landlord’s appeal on the basis of the landlord’s breach prior to the letting of the family home (see at 360).

(e) McHugh J held that the landlord was subject to a personal, non-delegable duty of care because it undertook to have the electrical stove repaired in circumstances where the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove (at 368-369). In his view, the case was analogous to the holding in Burnie that a land owner who allows a dangerous substance to be brought on to land or who allows a dangerous activity to be performed on land owes a non-delegable duty of care to persons who come on the land.

(f) Gummow J agreed on this point with the reasons of Dawson J and Kirby J.

(g) Kirby J discussed the concept of “special duty” of care at 394ff, observing that judges and commentators had been unable to define with precision the circumstances where the special duty will be imposed by law. He cited the general statements in Kondis and Burnie . His Honour held that the landlord’s right to enter and inspect did not confer a sufficient entitlement to control, or even to know, what was done or allowed to be done within the premises, to enliven the special duty. While the respondent was vulnerable, as a young child, and in need of protection, it would not normally be the landlord who would provide it. His Honour considered (at 401) that it was at once necessary and reasonable that the tenants, their family and visitors, should rely on the skill, knowledge and expertise of a qualified electrical contractor. This did not mean that the landlord had the “central element of control” . The mere fact that electricity can be hazardous did not bring the case within Burnie because “its supply to a domestic dwelling does not ordinarily involve an element of extraordinary danger such as to attract the non-delegable duty” (at 401). At 402-3 Kirby, J expressed the view than a landlord’s duty did not in itself involve a non-delegable duty of care in relation to matters arising during the currency of the lease. Nevertheless he recognised that “special undertakings” could alter that situation, citing Meyers at 285. It is apparent that he did not regard the facts of Northern Sandblasting as involving a “special undertaking” notwithstanding the fact that the landlord had specifically engaged the electrical contractor to repair the stove that the plaintiff’s mother had told the landlord did not work.

9    It would therefore appear that the “special undertaking” principle is narrowly construed, and that it was not satisfied on the facts of the Northern Sandblasting. In this regard it is pertinent that Brennan CJ (at 329-30) and McHugh J (at 366) cited Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48. That passage indicates that it is not enough that the work is done at the request and for the benefit of the principal. Unless a non-delegable duty is engaged, the principal must have “directly authorised the doing of the act which amounts to a tort”, before the principal is vicariously liable for the negligence of the independent contractor who is competently engaged by the principal.

10    In Pickard v Smith, the defendant was the tenant and occupier of a railway refreshment room. The defendant employed a coal merchant to deliver coal, a task which necessarily involved the opening of a trap-door through which coal could be put into the cellar. The hole was left unguarded and the plaintiff fell into it injuring himself. The act of opening the trap-door was treated as the act of the defendant, done through the agency of the coal merchant. This brought a duty upon the shoulders of the defendant because the defendant was treated as having caused the danger and thereby become bound to take reasonable steps to prevent the mischief of injury. It was no excuse that the performance of this duty was entrusted to an independent contractor, the coal merchant. The judgment of Dawson J in Northern Sandblasting (at 346) treats Pickard as failing to enunciate a clear principle upon which the occupier was liable. It was the open-ended nature of the decision that prompted the explanation in later cases for the further requirements of control or assumption of responsibility and vulnerability “in order to contain the concept of the non-delegable duty of care within appropriate limits”. As Kirby J points out (at 394-6) neither writers nor judges have been able to devise any clear test for determining when a duty of care may be discharged by the exercise of reasonable care in selecting a competent independent contractor. Fleming, The Law of Torts 9th ed, p437 sees Pickard as turning upon the fact that the contractor was employed to carry out work on a place to which there was a public right of access. However, the discussion in Northern Sandblasting does not appear to adopt this explanation from Pickard.

11    In Myers v Easton the plaintiff was the defendants’ tenant. The plaintiff asked the defendants to put a new roof on the house and the defendants agreed to do so. The defendants employed a contractor to do the work. While a great part of the roof was stripped, an unexpected rainfall damaged the plaintiff’s furniture. What was critical was that the defendants had, in the words of Stawell CJ (at 284) “assumed, and entered upon the discharge of, a duty to the plaintiff”. In those circumstances the duty could not be got rid of by engaging an independent contractor. In Northern Sandblasting (at 352) Toohey J applied Meyers by analogy to the situation where the plaintiff’s mother requested the work. This is obviously an extension of Meyers, because the duty enured for the benefit of the plaintiff as well as her mother. Toohey J was, however, in the minority on this aspect of the case.

12    Whatever the scope of Pickard and Meyers, I think that the critical guidance for this Court is that the majority in Northern Sandblasting did not think that the authorities justified the imposition of a non-delegable duty of care upon the landlord with respect to the casual negligence of the licensed electrician engaged to fix the stove.

13    Applying these principles I cannot see a proper basis for imposing a non-delegable duty upon either the centre manager or the promoter. Neither had exclusive control over the premises on the night in question. The centre manager had bargained away its right of exclusive control. But in that regard it was hardly to be distinguished from a landlord or a mere occupier of premises, neither of which relationships suffices in itself to impose a non-delegable duty upon present authority. Retention of the right to direct the conduct of the chosen independent contractor does not provide the touchstone of liability. At most, it might provide evidence that “delegation” had not occurred in the first place. This is the most difficult aspect of the issue relating to the centre manager’s liability, because (as Beazley JA points out) the centre manager retained by contract the discretion to determine whether a supervisor was required for a specific concert (cl 14); it stipulated that two way radios had to be provided for security use (cl 15); and it retained the final right to determine the number of security personnel to be engaged for a particular event. In addition, the evidence disclosed that the centre manager was, in fact, an active participant in the type and extent of the security arrangements put in place.

14    Nevertheless, the nature and scope of the duty towards a patron cannot be governed, in the final analysis, by what steps it takes to discharge it. That would involve the “fatal circularity” of which Beazley JA speaks in her judgment. The duty stems from the relationship between the defendant (in this case the centre manager and the promoter) and the plaintiff.

15    Crowd surfing was a potentially dangerous activity, but probably no more so than an established contact sport like rugby. Not all mosh dancers were voluntary participants in the sense that they may have enlivened the volenti defence. But that is not conclusive on the present issue. If the presence of a faulty electrical appliance was not so hazardous an activity to engage a non-delegable duty in Northern Sandblasting, then I find it difficult to see any basis upon which crowd surfing could do so, at least as regards the centre manager and the promoter. On my reading of the authorities, it is not enough to characterise the permitted activity as one which could result in injury unless properly managed. This could be said of practically any activity, including activities that no one would suggest enlivened the non-delegable duty. So long as the High Court retains the distinction between a delegable and a non-delegable duty of care then one must avoid eliding two separate notions: when a relationship may give rise to a prima facie duty of care, and when that duty may be discharged by the appointment of a competent independent contractor to attend to its performance.

16    It is hardly surprising that, in Northern Sandblasting McHugh J (at 366) and Kirby J (at 392) have suggested that the time may be ripe for the High Court to consider adopting a principle of vicarious liability for the acts and omissions of independent contractors. The issue may have profound implications, which could disturb existing insurance and other arrangements. But the present state of the law is unsatisfactory, because of the absence of a clear principle for determining when a non-delegable duty exists, or even for determining how to develop the law incrementally in this field.

17    For these reasons, I conclude that the second and third respondents were not liable to the first respondent (plaintiff). Accordingly the appeal and the plaintiff’s defensive cross appeal should be dismissed. The appellant should pay the costs of the other parties to the appeal.

18    SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by the President and Beazley JA. I agree for the reasons given by Beazley JA that the appeal by Newcastle Entertainment Security Pty Limited against the trial Judge’s finding that the appellant was liable in negligence to the plaintiff and first respondent should be dismissed. Like Mason P, I respectfully disagree with her Honour on the issue of non-delegable duty.

19    The third respondent, Michael Coppel Promotions Pty Limited, promoted a concert to be performed by a band known as “Pantera”. For that purpose it hired the Newcastle Entertainment Centre. The second respondent, International Facility Corporation (Newcastle) Pty Limited was the manager and operator of the centre. On the night of the concert the centre was set up so as to provide a stage, with tiered seating for 3,000 patrons or more and a “mosh pit”, to be used for mosh dancing. The trial Judge said that mosh dancing involved moving the body up and down and swaying from side to side. His Honour described “crowd surfing” as involving an activity wherein persons were lifted so that they were held overhead with their bodies parallel to the ground and, as they lay on their backs, passed from hand to hand by others towards the stage and then over a barrier. The plaintiff was injured after being lifted and passed in the manner described towards the stage and the barrier.

20    In certain categories of case the performance or discharge of a duty of care owed to another cannot be delegated. The party owing the duty of care must personally ensure it is performed. Negligence will not be excused by the employment of an independent contractor of reputed competence. In the case of inherently dangerous activities the degree of care owed to others by the party carrying out the activity is explained by the requirements of reasonable behaviour. In Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 at 554 the High Court said:

“Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.”

21    But quite separately from inherently dangerous activities, particular special relationships are recognised as imposing on one party a duty of care to another the performance of which cannot be delegated. In Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 at 344-5 Dawson J said:

“The various categories of case in which it has been held that there was a non-delegable duty of care were analysed by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 in a judgment with which Deane J and I agreed. The categories identified were those of adjoining owners of land in relation to work threatening support or common walls; hospital and patient; school authority and pupil; and employer and employee in relation to a safe system of work. Mason J concluded that the more stringent duty does not arise unless a special relationship exists between the parties such that the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised. In Burnie Port Authority v General Jones Pty Ltd at 551 it was pointed out that to identify the common element in the cases as the undertaking of care, supervision or control or the assumption of particular responsibility is to view the relationship from the perspective of the person upon whom the duty is cast. Viewed from the perspective of the person to whom the duty is owed, the relationship is marked by special dependence or vulnerability on the part of that person.”

22    At 361 Gaudron J said:

“It is now recognised that relationships which give rise to a special non-delegable duty to ensure that care is taken are marked by the central features of control, on the one hand, and vulnerability, on the other. The relationship between a hospital and patient, between school authority and pupils, and employer and employee, in relation to the provision of a safe system of work, are examples. Control is also a central feature of the relationship that exists between occupier and invitee. And as already indicated, because a landlord is in a position to control the state in which premises are leased, he or she is, at the beginning of a lease, in a position analogous to that of an occupier.

Seemingly, it was because of its central feature of control that, in Kondis v State Transport Authority at 688, Mason J adverted to the possibility that the relationship of occupier and invitee gives rise to a special non-delegable duty of care ‘to see that reasonable care and skill is exercised in making ….. premises safe.’ That possibility was again adverted to in Burnie Port Authority v General Jones Pty Ltd, but not further pursued. In Kondis, however, Mason J queried the position of an occupier with respect to conditions arising from works carried out by persons with special skills or expertise, saying ‘[i]t is not immediately obvious that it is appropriate to impose liability …. for injury caused to an invitee by the negligence of an independent contractor, eg, in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge’.”

23    In Northern Sandblasting Pty Limited v Harris five members of the Court (Brennan CJ, Dawson, Gaudron, Gummow and Kirby JJ) held that a landlord discharged its duty of care to its tenant and the child of its tenant in relation to the repair of a stove by engaging a qualified contractor whose competence it had no reason to doubt. At 333 Brennan CJ said:

“Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another’s person or property is a question of fact to be determined in the light of common experience.”

24    Inherent risk of damage or injury in this context means a risk inherent in the nature of the task or activity rather than in the manner of its performance.

25    In Burnie Port Authority v General Jones Pty Ltd the port authority was carrying our work to extend a building which it owned and in which the plaintiff licensed store rooms, when fire destroyed the building. The authority did part of the work and retained independent contractors to do the rest. One of the independent contractors was entrusted to install additional refrigeration. This work involved considerable welding and the use of a large quantity of expanded polystyrene insulating material which, although containing retardant chemicals to inhibit ignition, could be set alight if brought into sustained contact with a flame or burning substance. Once ignited it dissolved into a liquid fire which burnt with great ferocity. During the welding activity sparks or molten metal fell on one of the cartons of this substance setting first the cardboard and then the insulating material alight. Experience suggested that the work being undertaken by the independent contractor was hazardous even if carried out as it was intended to be carried out and hence could be described as one with inherent risk of damage or injury.

26    Dancing by jumping up and down and crowd surfing performed by enthusiastic youngsters in a large crowd seems far removed from the activity of the Burnie Port Authority’s independent contractor. There are risks involved. Almost any form of physical human activity involves risk. Players break their ankles playing netball and basketball. Gymnasts fall and sometimes are badly injured. Young squash players have been known to suffer heart attacks. Even so, in this area of discourse I would not describe such activities as carrying an inherent risk of injury, or as hazardous in the sense in which that word was used to describe activities of the sort that the Burnie Port Authority’s independent contractor was engaged in. There is, however, a risk of occasional injury usually related to the manner of performance.

27    Dancing has from time to time involved strenuous and risky movements, potentially more dangerous than crowd surfing. No doubt the person, in this case, the appellant, who supervised these activities was required, in performance of its duty of care to the participants, to recognise the degree of hazard and react accordingly; Burnie Port Authority v General Jones Pty Limited at 554. But this seems to me a far cry from saying that the third and second respondents as promoter of the concert and manager and operator of the venue had a personal duty to ensure that reasonable care was taken. Absent such inherent risk of injury in the activity itself, there was no other basis upon which a non-delegable duty of care to the participants could be imposed upon the promoter or operator.

28    Neither the promoter nor the operator had, as was suggested, a relationship analogous to that of a school authority to pupils. There was no special relationship founded on the undertaking of care, supervision or control or the assumption of particular responsibility by the one or the special dependence or vulnerability of the other. The relationship was no different from that of the licensor to the patrons of the licensee of an entertainment area to be used by the licensee for the purpose of providing entertainment; compare Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33.

29    I agree with the orders that the President proposes.
30    BEAZLEY JA: The first respondent, who was the plaintiff in the proceedings below, was awarded the sum of $39,800 against the appellant for dental injuries he received on 11 November 1994 when he attended a rock concert at the Newcastle Entertainment Centre (the centre). This amount included general damages of $22,000. The plaintiff was unsuccessful against the other respondents to this appeal, each of whom was also a defendant at trial. The appellant was the security firm engaged by the third respondent, Michael Coppel Promotions Pty Limited, the promoter of the concert. The second respondent, International Facility Corporation (Newcastle) Pty Limited, is the manager and operator of the Newcastle Entertainment Centre (the centre manager).

31    This seemingly simple case has produced a belatedly filed Amended Notice of Appeal; a Notice of Contention; a Cross-Appeal; and an application to file a further Notice of Cross-Appeal.

32    It has raised the following large number of issues: whether the trial judge’s findings were supported by the evidence; whether his Honour resolved the critical factual issue in the case, namely, whether the plaintiff was thrown or dropped; whether his Honour adequately explained how he had reached his finding as to how the injury occurred; whether his Honour incorrectly invoked and applied the principle in Jones v Dunkel (1959) 101 CLR 298; whether his Honour drew inferences which were not available on the evidence; whether the plaintiff voluntarily assumed risk of injury; the existence of contributory negligence; the application of the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472; the liability of the centre manager to the plaintiff as occupier; the liability of the promoter; whether the centre manager and the promoter, or either of them, owed a non-delegable duty of care to the plaintiff; the proper construction of the indemnity clause in the contract between the security firm and the centre manager; whether the trial judge gave adequate reasons for the rejection of a contractual claim for indemnity by the security firm arising out of the hiring contract between the centre manager and the promoter; contribution between the defendant parties under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); and whether the damages awarded were excessive.

33    Whilst this is a formidable array of issues raised by an exceedingly modest claim, it has to be accepted that many of the leading cases in the common law world have involved litigation over minimal amounts. Robinson v Balmain New Ferry Co Limited [1910] AC 295 is a classic example, where the fare evaded was one penny. That comment is not a means of introducing this case as one raising seminal legal issues. The principles are well established, although the question of whether the centre manager and promoter owed non-delegable duties of care raises an issue as to the outer parameters of that doctrine. However, one suspects the case has important and ongoing ramifications for the security firm and the centre manager and promoters.

The Pleadings

34    I have made passing reference to the pleadings. To understand the conclusion to which I have come, it is helpful to record the pleadings trail in more detail.

The Plaintiff’s Claims

35    The plaintiff sued the centre manager, the security firm and the promoter in negligence. He was successful only against the security firm. His claims against the centre manager and promoter were dismissed on the basis that neither owed him a duty of care.

The cross claims (made in accordance with the District Court Third Party procedure)

36    The centre manager’s cross-claims: The centre manager cross-claimed against both the security firm and the promoter seeking contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) in respect of any liability it might have to the plaintiff. It also claimed indemnity pursuant to the terms of the contracts it had with each. As the plaintiff did not succeed against it, no question of contribution or indemnity arose.

37    The security firm’s cross-claims: The security firm cross-claimed against the centre manager and the promoter seeking contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and, in respect of the promoter, under an indemnity clause in the contract between them. The security firm was unsuccessful on each cross-claim.

38    The promoter’s cross-claim: The promoter cross-claimed against the security firm seeking contribution or indemnity under s 5 of the Law Reform (Miscellaneous Provisions) Act. The promoter succeeded on that cross-claim.

39    The appeal: The security firm has appealed against the whole of the trial judge’s decision. Specifically, it appeals against the trial judge’s finding of negligence. If it is unsuccessful on that aspect of the appeal, it challenges the trial judge’s dismissal of its cross-claims for contribution or indemnity against the centre manager and the promoter.

40    The cross-appeal: The plaintiff has cross-appealed seeking a finding that the centre manager and the promoter were also liable to him for damages on the basis that each owed to him a non-delegable duty of care.

Background

41    The plaintiff suffered the injuries the subject of this claim when he attended a concert performed by Pantera held at the centre. Pantera is an internationally renowned heavy metal grunge band which was touring Australia in November 1994.

42    The promoter hired the centre for the concert. The hiring was the subject of a written contract entered into with the centre manager in about August 1994 (the hiring contract). Under the terms of the hiring contract the promoter was granted a non-exclusive licence to use the premises. The centre manager retained possession of the centre and had the sole right to direct crowd control and oversee security.

43    The centre manager had a long term relationship with the security firm, who had provided security services at all events at the centre prior to the Pantera concert. For the purposes of providing security for this concert, they entered into a contract dated 1 November 1994 (the security services contract).

44    The terms of the hiring contract and the security services contract are relevant to a number of issues between the parties, including whether there is a contractual right of indemnity in favour of the centre manager against the security firm, and whether the promoter is entitled to an indemnity against the centre manager.

45    The centre is a multi-purpose centre located within the Newcastle Showground. It was described by one witness as a “big basketball court”. On the night of the concert it was set up so as to provide a stage, tiered seating for over 3,000 patrons and a ‘mosh pit’.

46    Approximately 2,400 tickets were sold for the concert. There were two supporting acts which performed prior to Pantera coming on stage. Pantera’s performance commenced about 9.30pm. Initially, the plaintiff, who was then aged 16, was seated to watch Pantera. About twenty minutes into the performance, in the company of a friend, he went down to the dance floor area in front of the band, known as the mosh pit, to get closer to the band. This area was crowded and the plaintiff became separated from his companion. In the mosh pit, the audience was dancing and some patrons were also engaged in crowd surfing. Mosh dancing and crowd surfing are, apparently, notorious features of concerts such as this. His Honour found and it is not disputed that these ‘self entertainment’ activities were in fact promoted as part of the evening’s activities.

47    His Honour described mosh dancing and crowd surfing in the following terms:

“Mosh dancing, as I understand it, involves simply a movement of one’s body up and down and swaying from side to side which does not require the society of a partner. Crowd surfing involves an activity wherein a person is lifted so that he is held overhead with his body parallel to the ground and as that person lays on his back he is passed from hand to hand by a number of hands lifted in that fashion towards the stage and over the barrier.”

48    That suffices to introduce these two activities, although it will be necessary to deal more specifically with the evidence as to crowd surfing later in these reasons.

49    When the plaintiff moved down into the mosh pit his intention was to get closer to the band. He moved through the crowd and got to within two or three metres of a crash barrier which was positioned between the mosh pit and the stage. Many of the males in the crowd were bigger and older. The plaintiff noticed a few people crowd surfing. He then began to make his way back to his seat through the densely crowded area, but had not moved very far when he was then involuntarily hoisted up by some members of the audience and passed over the heads of people in the crowd. He resisted the movement toward the stage, but was ultimately passed to the front of the crowd to the barrier. In all, he was aloft for about five seconds.

50    The trial judge found that at that point:

“Those holding him had let go of him as he reached the barrier. … he wasn’t received or met by a security officer. He wasn’t lifted to the floor behind the barrier, he simply didn’t receive the assistance and as a result he fell and his face came into violent contact with that barrier. As a result of which his two upper incisors were knocked out.” (emphasis added)

51    The trial judge concluded that:

“Having regard to the number of security men available, the lighting, and the space there is simply no explanation for the plaintiff’s accident, other than some inadvertence or negligent conduct on the part of [the appellant]. There was an obvious and acknowledged duty to the plaintiff which was breached by [the appellant].”

52    The security firm challenges the trial judge’s finding that those holding the plaintiff “let go of him” at the barrier. Rather, it alleges that the only finding available on the evidence was that he was “thrown”. The security firm also submitted there was no evidence to support the trial judge’s finding of inadvertence or negligence; that, at the most, the evidence gave rise to competing inferences, including an inference that through no fault of the security officers, the plaintiff was not seen. It was submitted, therefore, that the finding that the security officers were inadvertent or negligent was no more than speculation, so that his Honour erred in finding a verdict against the security firm.

The Venue and Security Arrangements

53    It is necessary at this point to deal in more detail with the layout of the concert venue and the security arrangements for the night.

54    The stage was located at the front of the auditorium. It was approximately forty feet wide and was “quite elevated”. The plaintiff estimated that it was about two metres high. Large speaker stacks were located at either end of the stage. The seating was arranged in three separate areas - one block of seating at the back of the auditorium and one on either side. The mosh pit was located in the middle, bounded by a crash barrier which ran parallel to the stage and the three blocks of seating. The barrier was constructed of metal tubes and was placed about one and a half to two metres out from the stage. It was about four feet high, and about sixty feet long, extending beyond the width of the stage, across to the side seating. A long step or elevated area had been placed on the stage side of the barrier to enable the security officers to see over the crowd.

55    The lighting was, apparently, typical of a concert of this nature. The friend who accompanied the plaintiff to the concert said “the stage was lit up with different coloured flashing lights” or “strobe lights” but that apart from an occasional flashing of that lighting into the audience, there was no other lighting in the auditorium during the concert. He said that in these conditions you could see “the silhouette of the crowd. You could see the crowd moving”. He said “it just looked like one big motion”.

56    Mr Jennings, the security firm’s managing director, said that the lighting was “very sharp” and that from the crowd barrier “you can see back a good 10, 15, 20 metres from the wash [of light] off the stage”. Ms Cornish, the centre manager’s front-of-house supervisor described the lighting as giving “quite a clear view when I was near the stage”. The general manager of the centre, Mr Wharton, said “it was quite a clear view [of the crowd] really because the stage is quite bright and because it’s projecting away from the area that I was viewing from then obviously it gave a fairly well lit area”.

57    Prior to the night of the concert, the centre manager’s Events Manager, Mr Reading, undertook some research on the band, including looking at promotional film clips. He realised:

“that the nature of the act was a lot heavier as far as the audience action, reaction to the band would be and at that stage I believe that in our interests it would be best to go and probably try and get to see the band prior to coming to Newcastle.”

58    Accordingly, Mr Reading and Mr Jennings travelled to Brisbane and attended Pantera’s concert at the Festival Centre. As a result of what they observed, particularly in relation to the audience’s participation in crowd surfing, they decided to increase the security arrangements at the Newcastle concert. Thirty one security officers were engaged, eighteen of whom were positioned at the crash barrier during the main performance, about an arms length apart. This distance was necessary to give them room to manoeuvre when they took hold of a surfer and placed the person on the ground.

59    On the night of the concert, the mosh pit was “packed with people”. The plaintiff estimated there “would’ve been … a thousand, thousands”. Mr Reading anticipated that by the time Pantera’s performance commenced about 95% of the crowd would have been in the mosh pit. He said that despite the large number of people “the entire floor area wasn’t tightly compacted but the area adjacent to the crash barrier … was very tightly packed”. The evidence also indicated the crowd was more congested in the area in front of the stage and thinner at the edges. Mr Reading estimated that in the mosh pit the crowd was about seventy to eighty people across the front of the stage and about thirty people deep.

60    Several witnesses gave evidence as to the extent to which crowd surfing occurred during the Pantera performance. The young friend who accompanied the plaintiff said that whilst he was seated he saw patrons engaging in crowd surfing, but that there was not “a lot”. Mr Reading said that “probably” a person was going over the barrier “every four, five seconds”. Mr Wharton said that from his observations “there were no more than three or four people at a time that came across at once and that could have been more in other periods”. He also said “the people … tend to come through and basically come across primarily in the middle area”. Mr Jennings said that during Pantera’s performance, “it wasn’t unusual to have half a dozen people come over the crash barrier at the one time and that was constant from the start of Pantera to the end of Pantera. It was very, very like a constant wave of water coming over the crash barrier”.

61    I have already mentioned that the arrival of surfers at the crash barriers tended to be concentrated towards the middle. One of the key roles of the security personnel at the outer limits of the stage was:

“… to actually point at people. It’s not simply left to the people in the middle to notice someone is coming over. Someone is telling them that there’s someone on their way. So there is quite a bit of communication in that area. So those sort of situations are quite well managed”.

62    Mr Reading said the function which the security officers performed at the crash barrier was to “assist the audience” to safely complete the crowd surfing activity by helping them land safely across the barrier and sending them back into the audience. He said:

“The security guards will stand up on the step and reach across and assist that the person over by the belt or whatever. Grab hold of their feet. The audience then will just, they keep coming on their way towards the barrier and the security guards then just, usually one or two sometimes three, just help them down on their feet in front of the stage. They’re then patted on the back and sent along to the side and back into the audience again.”

63    Mr Jennings said that there was a good view into the crowd from the step on the stage side of the crash barrier. He was of the opinion that the eighteen security officers “successfully [met] the requirements that were necessary on that night for crowd surfing”. He was “quite satisfied with the numbers [of security officers] that we had [at] the crash barrier”. Mr Jennings also said that during the night he observed that all of the crowd surfers were met by the security officers, that he did not see anyone thrown over and at no stage did he feel the activity was getting out of hand.

64    Mr Jennings conceded in cross-examination that apparently none of the security officers either saw or helped the plaintiff down when he got to the barrier. On the evidence, he was the only person who saw the plaintiff at all. He said the first he saw of the plaintiff was about half way between the centre and the end of the stage, when the plaintiff was “coming up from a kneeling position and scampering at great speed to the edge of the barricade to the gates that allow you access back onto the floor”.

65    His Honour found that:

“During the evening many crowd surfers were handled, apparently without incident. They could be seen coming as they were lifted over the crowd. The lighting was good, and there appears to have been no problem in observing and receiving them without incident.”

66    His Honour also found that:

“[a]t no stage did the crowd surfers arrive at the barrier in such numbers so as to create a situation which involved loss of control by the security officers.”

Liability of the Security Firm

67    The security firm did not dispute that it owed a duty of care to the plaintiff. However, senior counsel reminded the Court that the duty imposed upon his client was a duty to take reasonable care, not a duty to obviate all possible danger. He submitted that crowd surfing was inherently dangerous and that the security firm had satisfied its duty of care by providing an adequate security system. In this regard he relied upon the trial judge’s finding in favour of the security firm that:

“[t]he decision to place 18 security men behind the barrier seems entirely appropriate having regard to the space available, and the ability to handle the incoming crowd surfers over the barrier. Additional security officers would have been counter-productive as they would simply have got in each other’s road and would have prevented the efficient receiving of the crowd surfers.”

68    However, senior counsel for the security firm attacked the trial judge’s finding that there had been inadvertence or negligence by one or more of the security officers. This attack was made on three separate bases. First, it was submitted that the trial judge did not come to terms with “the critical feature of the plaintiff’s arrival at the barrier - [that] the plaintiff was thrown or flung by the crowd - not ‘handed’” to the security officers. He submitted that there was no evidence to support the trial judge’s finding that surfers were “handed” to security officers who then lifted them over the barrier without incident. Nor, he submitted, was there evidence that at no stage did the crowd surfers arrive in such numbers as to create a “loss of control by security officers”.

69    Secondly, it was submitted that if the trial judge did consider and resolve the critical feature of the plaintiff’s case, he failed to give adequate reasons for his finding.

70    Thirdly, it was submitted that his Honour erroneously invoked and applied the principle in Jones v Dunkel.

Failure to Consider the Essential Issue in the Plaintiff’s Case

71    As I understand this submission, the security firm alleges that the trial judge made two findings of fact (to which I have referred above) unsupported by evidence and an erroneous finding of fact (that the crowd “let go of” the plaintiff, when the plaintiff said he was thrown). These errors, according to the submission, meant that the trial judge failed to deal with the plaintiff’s case on its true basis. It was submitted that the true situation was that the plaintiff was engaging in an inherently dangerous activity in such a way (by struggling to be let free and then being “thrown” by the crowd over the barrier) that the security firm’s system, found by his Honour to be adequate in all the circumstances, simply did not and could not be expected to deal with such dramatic and unexpected circumstances as caused the plaintiff’s injury.

72    It is convenient to deal first with the trial judge’s finding that the crowd “let go” of the plaintiff.

73    The evidence as to what happens to a ‘surfer’ upon coming to the end of the crowd and into the hands of the security officers indicates that crowd surfing is not a genteel activity. Sometimes the surfer is face up. Sometimes face down. The crowd is usually moving as an homogenous mass, the evidence in this case being that it was moving about five to six feet from left to right. The crowd would either “put their hands up” to move the surfer forward or “alternatively put their heads down to protect themselves”. At the time the surfers are “received” by the security officers “their feet or sometimes their arms will be flailing about the place”.

74    The landing itself can be hazardous. Sometimes a person is lowered to the ground head-first, sometimes feet-first. By the end of the night the area near the barrier is:

“usually full of shoes and clothes and hats and watches and all sorts of items from those that have come over.”

75    The plaintiff described his sensation of going over the barrier as being “thrown”. Having regard to the descriptions of the boisterous nature of the activity by those in control of the event, the plaintiff’s perception of being “thrown” is understandable, particularly as he said he was an unwilling participant in the activity and given the speed of the incident. The trial judge’s description of the crowd letting go of him is not inconsistent with the plaintiff’s description of what happened to him. He was clearly being propelled forward. He had no means of controlling his forward progression, his momentum, or what happened to him at the barrier. Those holding him obviously let go of him at the barrier and he fell forward. To a person hoisted in the air and moved forward, with no means of control, it was likely that the sensation he felt when the crowd was no longer holding him was one of being thrown. In my opinion, there is no substance in the distinction which senior counsel sought to make on this point and his Honour was not led into error in that regard.

Findings Unsupported by the Evidence

76    The trial judge found that surfers were handed to security officers who lifted them over the barrier without incident. He also found that at no stage did the crowd surfers arrive in such numbers as to create a loss of control by the security officers.

77    Senior counsel for the security firm submitted that these findings were unsupported by the evidence. He relied upon the following as being evidence which supported contrary findings:
· six people at a time, constantly at the relevant time, came over the barrier;

· it was like a constant wave of water;

· even in ordinary circumstances, people coming over the crash barrier still ended up on the floor after they were put down;

· shoes, clothes, hats, watches and all sorts of items got stuck in or fell near the barrier;

· the activity was “extremely intensive”;

· security officers had more to do than catch crowd surfers - people at the front of the crowd “might become distressed, due to heat, exhaustion, dehydration” in which case the person has to be “wrestled … out of the pit” by the security officers.

78    Senior counsel appears to acknowledge, however, that there was evidence to support his Honour’s finding as he further submitted:

“The evidence principally relied on by his Honour to find no “loss of control” is Jennings … it would seem. But that evidence was given in the context of what Jennings saw .”

79    The point senior counsel sought to make was that Mr Jennings was not always at the barrier. He made the same point in relation to Mr Wharton and Mr Reading, submitting that, in the case of Mr Wharton “he spoke of the general situation on the night and was absent from the barrier at the time” of the accident; and in the case of Mr Reading “he was in the concert (and not always at the barrier) only 75% of the time”.

80    In my opinion this submission must fail. Not only was there evidence to support his Honour’s findings, there was no evidence to the contrary. The description of how the security officers managed their task indicated the situation was managed with care. Mr Jennings gave evidence that “[n]inety percent of the receiving is done in a horizontal cradling position and from there they are lifted and turned alternately left or right to the floor…”; Mr Wharton said that space was left between the crash barrier and the stage:

“sufficient for a security officer to be able to move from his standing position step up onto the step of the crowd control barrier, lift the person down and still have the person behind them - still a little bit of room ... so it is specifically designed to ensure that there is sufficient room for that sort of movement.”

81    In addition, although the consistent tenor of the evidence was that crowd surfing is a frenetic activity, all the witnesses called for the security firm and the centre manager said that the concert was “under control”; that it was “well managed”; that there was a “good view into the crowd”; that, according to Mr Jennings the security officers “successfully [met] the requirements that were necessary on that night for crowd surfing”; that at no stage did he feel the activity “was getting out of hand”; that, according to Mr Wharton, “the situation…hasn’t occurred…[where] more than one crowd surfer arrived or more crowd surfers arrived than could be accommodated by the security men to meet them”. Indeed, the security firm received a certificate of merit from the centre manager for “excellent service” accompanied by a letter of congratulation “for the outstanding security performance at the Pantera concert on 11th November 1994”.

82    In my opinion, it does not assist the security firm’s case to assert that there were times when these witnesses were not present. None of them sought to qualify their evidence by stating that matters could have been out of control, or the barrier not properly attended during periods they were not there or that, from time to time, the system was insufficient or inadequate. Their evidence was that this was a well-managed concert, with a properly conceived and implemented security arrangement, and at all times the situation was under control. Had the type of evidence to which senior counsel alluded been given, the security firm and centre manager might have run a very real risk of a finding that the system was not adequate and found negligent on that account.

83    As the security firm has failed to establish that his Honour erred in the manner alleged, there is nothing left of the submission that his Honour failed “to come to terms with the critical feature of the [plaintiff’s] case”. His Honour clearly did so. The difficulty which confronted the security firm, both at trial and on appeal, was that the mere fact it established that it had put in place an adequate system and had the situation “under control” did not, of itself, establish that there was no breach of duty. It was open on the evidence for his Honour to infer, as he did, that the security firm breached its duty to the plaintiff by a casual act of negligence.

Failure to Give Reasons

84    The nature of the trial judge’s duty to give reasons was stated by McHugh JA (as he then was) in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 at 280:

“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex Parte Powter: Re Powter (1945) 46 SR (NSW) 1 at 5… But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701,713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister’s duty under the Tribunals and Inquiries Act 1958 (UK) to furnish ‘the reasons for the decision’, declared (at 410) that:

‘… The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.’”

85    In my opinion, his Honour’s reasoning process is obvious. First, he explained the nature of the activity. He referred to the evidence that indicated it was a dangerous activity which required appropriate management. He considered the system which was put in place to meet the danger and held that the system was adequate. He considered the manner in which the system was implemented and held that, given those matters, the only explanation for the accident was some inadvertence or negligence. All that is plain on his judgment and provides an adequate exposition of his Honour’s reasoning process so as to “enable the parties and the courts to see what matters he has taken into consideration”. Accordingly, this challenge also fails.

86    That leaves the final point on this issue.

Jones v Dunkel

87    Senior counsel for the security firm submitted that his Honour erroneously applied the principle in Jones v Dunkel without considering the necessary pre-conditions for its operation, and drew inferences in favour of the plaintiff, when there were, in fact, “conflicting inferences of equal degree of probability, so that the choice between them is a mere matter of conjecture”: see Jones v Dunkel per Dixon CJ at 304.

88    The purported offending passage was the core finding of breach of duty which has already been set out, namely that there was “simply no explanation for the plaintiff’s accident other than some inadvertence or negligent conduct on the part of [the security firm]”.

89    In reaching this conclusion his Honour did not make any reference to the principle in Jones v Dunkel, either expressly or by reference to a failure to call witnesses. It was not suggested that a Jones v Dunkel submission was made at trial. Nor do I consider that his Honour was invoking the principle in this passage. Rather, he was enumerating the matters which led him to conclude that the accident could not have happened but for negligence.

90    Accordingly, I reject this challenge to his Honour’s determination.

Voluntary Assumption of Risk and Contributory Negligence

91    The security firm also relied upon the defence of voluntary assumption of risk. This submission was based, in the main, upon the premise that the plaintiff’s evidence that he was an involuntary and unwilling participant in crowd surfing should have been rejected because his Honour had made adverse findings as to the plaintiff’s credit.

92    His Honour did remark that “in the course of his evidence the [plaintiff] gave unsatisfactory answers”, that there were inconsistencies and that “he was not a totally reliable recounter”. However, his Honour considered that the unreliability in the plaintiff’s evidence only went to peripheral matters. His evidence that he was an unwilling participant in the crowd surfing was central to his case. Accordingly, if that evidence is accepted, as it was by the trial judge, there is no factual basis upon which the defence of voluntary assumption of risk can succeed.

93    The security firm submitted however, that, having regard to the evidence of Mr Jennings, which was different from the plaintiff’s, his Honour misused the advantage he had as trial judge (Abalos v Australian Postal Commission; Devries v Australian National Railways Commission) and should have rejected the plaintiff’s evidence that he was an involuntary participant in the activity. The rule in Devries states (at 479) that a trial judge’s finding:

“which depends to any substantial degree on the credibility of the witness… must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ [S.S. Hontestroom v S. S. Sagaporach [1927] AC 37 at p 47] or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ [Brunskill (1985) 89 ALJR at 844; 62 ALR at 57].”

94    Counsel for the security firm did not even attempt to meet the rule in Devries. That rule makes it clear that it is not enough to successfully attack a trial judge’s finding of credit to merely recite evidence contrary to that accepted by the trial judge. That was all that was sought to be done in this case. However, two further things should be said. First, there was independent corroborative evidence that surfers were sometimes involuntarily hoisted up and set in motion across the crowd. Secondly, as I have previously stated, Mr Jennings’ evidence does not, overall, bear the interpretation sought to be placed on it by the security firm. In those circumstances this challenge must fail.

95    The same submission is made in respect of contributory negligence and for the same reasons is rejected.

Rejection of the Security Firm’s Claim to Indemnity

96    The security firm in turn sought contribution or indemnity against the promoter pursuant to cl 6.4 of the hiring agreement. It should be noted immediately that the security firm was not a party to that agreement, but claimed it was entitled to the benefit of cl 6.4 of the hiring agreement. It is not apparent from its submissions at trial how it claimed to be entitled to that benefit.

97    The trial judge’s determination on this argument was contained in the single phrase “I am not persuaded Mr O’Dowd”. However, the claim under the third party notice had been the subject of argument between counsel and his Honour over about three pages of transcript. During the course of that exchange his Honour expressed three reasons for rejecting the claim: (i) that the contract was between the centre manager and promoters; (ii) that according to its terms it was a ‘release’ and not an indemnity clause; and (iii) that in the circumstances in which the security firm had maintained for itself control over security, the clause did not operate in the circumstances which pertained here. In the normal course, I would not regard statements made by a judge during argument as constituting reasons for decision. There are practical reasons why this is so. During the course of argument a judge may be testing counsel’s argument, or seeking to understand the point being made, or be putting a tentative view with subsequent research requiring a different conclusion. However, in this case, the trial judge did not seek to express any more expanded or different view. It is apparent from the exchange that he remained of the view he expressed in discussion with counsel. Although it would have been preferable for his Honour to restate his reasons, or, at the very least, to indicate that his ruling was based upon the views he had expressed in argument, I am satisfied that the basis of his Honour’s decision is apparent and that principles stated in Soulemezis v Dudley Holdings Pty Limited has been satisfied. It should be stressed however that this is not an approach to the giving of reasons to which this Court would, except in the exceptional circumstances here, give its sanction.

98    My rejection of this ground of appeal is fortified on another basis. It is basic contract law that the doctrine of privity of contract allows enforcement of the contract only by parties to the contract: Price v Easton (1833) 4 B&Ad 433 [110 ER 518]; Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847; Wilson v Darling Island Stevedoring & Lighterage Co Ltd (1956) 95 CLR 43; or by a party for whose benefit the contract was entered: Trident General Insurance Co Limited v McNiece Bros Propriety Limited (1988) 165 CLR 107. The security firm was not a party to the contract, nor was it entered into for the security firm’s benefit. Presumably, it was because the security firm recognised that this principle would be fatal to this aspect of its claim, that it did not seek to raise any substantive challenge to the trial judge’s rejection of it. If the Court accepted the appellant’s argument that his Honour erred in failing to give reasons, a new trial would have to be ordered. Such a result would be futile in this case, as the security firm could not succeed on the substantive issue.

Liability of the Centre Manager

99    The trial judge held that while the centre manager owed a duty of care to the plaintiff “it behaved reasonably and should [not] and could [not] have taken any additional steps to fulfil its obligations towards the [plaintiff]”. It had “fulfilled its obligations by relying upon the expertise of the security firm”.

100    The centre manager did not contend that it did not owe a duty of care: see generally Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. However, it submitted that the trial judge’s finding that it had discharged its duty by the engagement of the security firm was correct and should be upheld. The security firm submitted, however, that as a matter of law the centre manager owed a non-delegable duty of care to the plaintiff.

Non-Delegable Duty of Care

101    The origin of the concept of a non-delegable duty of care is usually traced back to Pickard v Smith (1861) 10 CB (NS) 470 [142 E.R. 535]. In Kondis v State Transport Authority (1984) 154 CLR 672 Mason J at 684 referred to Pickard stating:

“Pickard v Smith was the source of the concept of the non-delegable duty as applied to a common law duty of care, though the concept seems to have been derived from earlier cases dealing with duties imposed by statutes: e.g. Hole v Sittingbourne and Sheerness Railway Co [(1861) 6H.&N. 488; [158 ER 201] ]. In Pickard v Smith an occupier of refreshment rooms at a railway station was held liable for injuries sustained by a train traveller when he fell down a trap door which had negligently been left open by a coal merchant. Williams J, delivering the judgment of the Court, stated [at 539] that the rule that an employer is not liable for the casual negligence of an independent contractor is ‘inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned’.”

102    However, as Mason J pointed out, this passage, though correct in itself, assumes the existence of a non-delegable duty. When does such a duty arise? In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ referred at 550 to categories of cases where it had been accepted there was such a duty, including:

“adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee .” (emphasis added).

103    His Honour at 686 noted that the effect of the imposition of a non-delegable duty in such cases is to “[substitute] for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken”. Mason J then examined the basis for imposing the stricter rule in certain circumstances, stating at 687:

“when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. …

The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. … In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.”

104    In Burnie Port Authority, after referring to the above quoted passage in Kondis, the majority added (at 551):

“It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.”

105    Their Honours examined the notions of “central element of control” and “special dependence and vulnerability” in circumstances where a building owner retained an independent contractor to do work on extensions to the building. During the course of the building work, the independent contractor negligently carried out welding activities in close proximity to cardboard cartons which contained highly flammable material and which caught fire. The fire spread, causing damage to goods of a licensee of the premises. The case had been conducted on the basis that the rule in Rylands v Fletcher (1866) LR3HL 330; [1861-73] All ER 1, as to having dangerous things on premises, applied. The Court held that there was no independent or separate rule of law in relation to the keeping and escape of dangerous things. Rather, such a case was subsumed into the ordinary law of negligence. In a passage which is apt for the purposes of this case their Honours said at 551:

“One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other part to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger. In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises. Conversely, the person who introduces (or allows another to introduce) the dangerous substance or undertakes (or allows another to undertake) the dangerous activity on premises which he or she controls is ‘so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety’.”

106    The question of a non-delegable duty was again considered in Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313. That case involved a landlord’s duty to occupiers of premises, and the Court was divided as to whether the duty was non-delegable. However, Mason J’s statement in Kondis (at 687) was approved (see Brennan CJ at 332; Dawson J at 345; Toohey J at 350-352; Gaudron J at 361-2; and McHugh J at 368).

107    Given the finding that mosh dancing and crowd surfing were promoted as part of the evening’s entertainment and given the nature of those activities, I am of the opinion that the centre manager owed a non-delegable duty of care to the plaintiff. Those activities were frenetic and, it was known, could result in personal injury if not properly managed. The centre manager was the occupier of the centre, which it also managed and controlled. It permitted the concert and its associated activities to be held at the centre. In those circumstances, the centre manager was “so placed in relation to the [attendees of the concert] … as to assume a particular responsibility for [their] safety” or to use the more compendious phrase used by their Honours, the centre manager had the “central element of control”.

108    Likewise, the attendees of the concert were in a position of “special dependence or vulnerability”. The reasons for this are self-evident. They had no control over the number of tickets to be sold or sold; they had no ability to provide security; they had limited means of protecting themselves. They had no control over the size of the mosh pit or the mode of lighting; they had no control over the removal of unruly patrons. Their safety was dependent upon the security arrangements made for the concert, and in particular, those put in place to manage the frenetic activities of mosh dancing and crowd surfing.

109    The existence of the security services contract is no answer to this aspect of the case. The very point of a non-delegable duty of care, of course, is that a party cannot contract with a third party so as to avoid it. But even if the security services contract was relevant to this issue, the centre manager clearly retained control of the security services to be provided for the event. This is clear from the provisions of clauses 14, 15 and 17, which provided respectively that the centre manager had the discretion to determine whether a supervisor was required for the concert; that it was required to provide two way radios for security use; and also that it had responsibility for determining the number of security personnel to be engaged. The evidence disclosed that the centre manager was, in fact, an active participant in the type and extent of the security arrangements put in place.

110    Similarly, under the hiring contract, the centre manager also retained control of security. In addition, it retained possession of the premises. The promoter’s use of the premises was restricted to that of a non-exclusive licence for the purposes of the concert. None of this, of course, imports an absolute duty of care. The duty at all times remained a duty to take reasonable care. However, because in this instance the duty was non-delegable, the centre manager was under a duty to ensure that reasonable care was taken. It follows that the centre manager is liable to the plaintiff for the casual negligence of the security officers.

Contractual Indemnity

111    In light of the finding that the centre manager is liable to the plaintiff, it is necessary to consider its claim to a complete contractual indemnity in its favour under the security services contract. The centre manager relies upon clauses 9 and 22, which provide:

“9. The contractor shall be responsible for and shall indemnify the principal against liability for all loss, damage or injury to persons or property caused by the contractor, or its employees or agents, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by the principal in respect of any such loss, damage or injury shall be made good at the contractor’s expense and may be deducted from any monies due or becoming due to the contractor.

…

22. The contractor shall indemnify and keep indemnified the principal and the Newcastle Showground Trust against all and any claims, suits and actions arising howsoever from the actions of the contractor during the performance of work pursuant to this Agreement.”

112    The security firm contends that these clauses are not sufficiently specific to include negligence.

113    I direct my remarks in the first instance to cl 22. An indemnity clause is to be construed according to its natural meaning in the context in which it occurs: see Pendal Nominees Pty Ltd v Lednez Industries (Australia) Limited (1996) 40 NSWLR 282 per Cohen J, adopting Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510; also Schenker & Co (Australia) Pty Limited v Maplas Equipment & Services Pty Limited [1990] VR 834.

114    In Darlington Futures, the High Court, in a joint judgment, said at 510:

“… the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. … [T]he principle, in the form which we have expressed it, does no more than express the general approach to the interpretation of contracts and it is of sufficient generality to accommodate the different considerations that may arise in the interpretation of a wide variety of exclusion and limitation clauses in formal commercial contracts between business people where no question of reasonableness or fairness of the clause arises.”

115    In Pendal Nominees Cohen J referred to this passage at 289:

“… the task of the Court in a question of construction of an indemnity clause is no different to that which is to be applied in any other clause of an agreement between the parties, and must follow the principles set out in the quoted passage of the High Court above.”

116    The meaning of cl 22, in my opinion, is clear. It refers to “all and any claims, suits and actions arising howsoever from the actions of the contractor”. As a matter of ordinary English, the phrase embraces negligence. There is nothing in the policy as a whole which requires it to be read in any different way. Accordingly, I am of the opinion that the security firm is liable under cl 22 to indemnify the centre manager in relation to its liability for the injury suffered by the plaintiff.

117    Having reached that conclusion, it is not necessary to deal with cl 9. For my part, I consider that clause deals with a different matter altogether, but I express no final view on it.

Liability of the Promoter

118    The trial judge held that the promoter also owed a duty of care to the plaintiff, but found that the duty was not breached. His Honour stated:

“[The promoter] could not have taken any additional precautions, that is to say precautions other than those that were in fact taken, and I can see no breach of its duty to the [plaintiff].”

119 The security firm contends that this finding is erroneous and that the promoter also owed the plaintiff a non-delegable duty of care. In resisting this contention, the promoter raised two pleading points as well as denying it owed a non-delegable duty. Dealing with the pleading points first, the promoter argued that the security firm had not pleaded that the promoter owed a duty of care either to the plaintiff or the security firm. This however is irrelevant as the security firm seeks to reverse the trial judge’s finding that there was no breach of duty by the promoter vis-a-vis the plaintiff. It is open to the security firm to attack that finding so as to base its claim to a right of contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). The promoter acknowledges this to be so in its written submissions. In any event, the plaintiff has cross-appealed against the finding that there was no breach of duty by the promoter.

120    The promoter also complains that a non-delegable duty was not pleaded, and nor were the facts and circumstances necessary to give rise to a non-delegable duty pleaded. However, during the course of his oral argument, senior counsel for the promoter dealt comprehensively with the issue of non-delegable duty, and, although I do not take his written submissions to have been abandoned, the matter was sufficiently and clearly raised on the appeal and was fully argued. No Suttor v Gundowda (1950) 81 CLR 418 point was taken and no prejudice alleged.

121    That leaves the substantive question whether the promoter owed a non-delegable duty of care to the plaintiff.

Did the Promoter Owe a Non-Delegable Duty?

122    The security firm submitted that the promoter was an occupier of the Entertainment Centre on the night of the concert and was one of the commercial engines of the concert activity. It promoted crowd surfing as an important commercial ingredient of the concert and there was an inherent risk of injury associated with members of the audience crowd surfing and mosh dancing. It was submitted that the promoter acquiesced in the security arrangements put in place for the night and, further, that those arrangements could not have prevented the harm to the plaintiff in the circumstances. Alternatively, it was submitted there was always the chance of injury due to inadvertent negligence.

123    The promoter denies that the circumstances here created a non-delegable duty of care. In particular, it relied upon the fact that it was not in possession of the premises. It was a non-exclusive licensee only. It also relied on the terms of the hiring agreement which placed responsibility for ticket sales, overall security, crowd control, right of admission and removal of patrons with the centre manager.

124    Those matters are, at first blush, weighty, but involve a fatal circularity. If there was a non-delegable duty, such contractual provisions are irrelevant as a party cannot contract out of a non-delegable duty. The relevant question to ask in determining whether the promoter owed a non-delegable duty of care is whether it undertook the care, supervision or control of the concert, including the promoted activities of mosh dancing and crowd surfing; or alternatively, whether it was so placed in relation to the plaintiff as to assume a particular responsibility for his safety in circumstances where the plaintiff might reasonably expect care to be taken.

125    It goes without saying that the plaintiff would reasonably expect care to be taken for his safety. However, that does not resolve the question of the promoter’s liability. The plaintiff was a 16 year old boy attending a rock concert, this being the first time he was unaccompanied by an adult. He would not have given any thought as to who would assume responsibility for his safety.

126    The essential question therefore is whether there was any element in the relationship between the promoter and the plaintiff to found a non-delegable duty of care. Having regard to the primary reliance of the promoter on the fact that it was only a non-exclusive licensee, it should be emphasised that the existence of a non-delegable duty of care is not restricted to circumstances involving the occupation of premises. If it were, the employer and employee relationship would not fall within the category. As was said in Burnie Port Authority, the defining feature of the relationship which give rise to a non-delegable duty is “the central element of control”.

127    Little is known of the role played by the promoter except to the extent defined by the hiring contract to which I have already referred. The promoter, of course, had no right to use the centre except with the permission of the centre manager and the contract granted that permission and defined its nature. However, the promoter did not thereby become a passive bystander in relation to this concert. There were specific provisions in the hiring agreement which required the promoter to specify the seating and stage requirements; the lighting requirements; and whether a crash barrier was required. It also appears the promoter remained in control of or responsible for advertising and programming. In summary, it staged the concert and promoted the associated dangerous activities. Such a concert, unless properly controlled, managed and supervised, was likely to end in damage of some sort. It was therefore incumbent on the promoter, to ensure the venue was appropriately equipped and arranged and that the concert was properly managed and supervised. It could not, as a matter of law, avoid liability by contracting away responsibility for either matter. As promoter it was so placed in relation to a concert goer as to assume a responsibility for his safety, thereby attracting a non-delegable duty of care. The casual negligence of the security firm’s officers thus meant the promoter also breached its duty of care to the plaintiff.

Contribution Between Tortfeasors

128 Having found that the security firm and the promoters were each liable to the plaintiff, it is necessary to determine their respective contributions under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Were it not for the fact that it was the casual negligence of one or more security officers which caused the damage, I would have been of the view that liability should be apportioned equally between the parties. However, I consider that the negligence of the security firm’s security officer requires the security firm to bear a greater proportion of the liability for the plaintiff’s injuries.

129    Accordingly, I would apportion liability 50% as to the security firm, and 25% each to the centre manager and promoter. However, the centre manager is entitled to a complete contractual indemnity from the security firm in respect of its liability to the plaintiff.

Damages

130    Finally, the security firm argues that the damages are excessive. The general damages award was $22,000, plus $500 interest (up to the date of trial).

131    The evidence as to the extent of the injury was that the plaintiff lost two teeth and chipped a third when he collided with the barrier. His mouth was swollen for about six weeks. He had a temporary denture within days of the accident and a chrome cobalt prosthetic appliance six months later. The plaintiff suffered acute pain, discomfort and embarrassment for some weeks and will continue to endure the inconvenience and embarrassment of two false teeth at the front of his mouth. He finds some foods difficult to eat and must remove the denture before going to sleep or engaging in an activity such as surfing. His chipped tooth had to be filled.

132    General damages fall within the discretion of the trial judge and will only be overturned on appeal if there has been a wrongful exercise of that discretion: Gamser v Nominal Defendant (1977) 136 CLR 145; Moran v McMahon (1985) 3 NSWLR 700. The appellant has not demonstrated that the trial judge acted on an incorrect principle of law, failed to take account of relevant considerations, made a relevant error of fact or reached a result plainly unjust or unreasonable. The damages awarded, though high, are not outside the range for an injury of the type the plaintiff suffered. Accordingly, this ground of appeal must also fail.

Orders

133    I therefore propose the following orders:

(i) Appeal allowed in part.

(ii) Cross-appeal allowed, the cross-respondents to pay the cross-appellant’s cost of the cross-appeal.

(iii) The appellant to pay the first respondent’s costs of the appeal.

(iv) The second and third respondent’s to pay the first respondent’s costs of the cross appeal.

(v) Set aside the order of the court below and in lieu thereof make the following orders.

(vi) Verdict for the first respondent against the appellant, second and third respondents in the sum of $22,000, together with interest from the date of the trial judgment.

(vii) The appellant, second and third respondents to pay the first respondent’s costs of the trial.

(viii) Declare, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 that the liability of the appellant, second and third respondents to the first respondent, including the liability as to the costs of the trial, is to be borne in the proportions: 25% by the second respondent; 50% by the appellant; 25% by the third respondent.

(ix) Order that the second and third respondents pay 50% of the appellant’s costs of the appeal.

(x) Declare that the second respondent is entitled to indemnity from the appellant in respect of the second respondent’s liability to the first respondent, including in respect of costs.
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